Continuing an unbroken string of appellate rulings finding that small businesses cannot refuse to supply goods or services for same-sex marriages in jurisdictions that ban sexual orientation discrimination, the nine members of the Supreme Court of the State of Washington unanimously ruled on February 16 that Barronelle Stutzman, proprietor of Arlene’s Flowers, Inc., and her business, violated the Washington Law Against Discrimination (WLAD) and the state’s Consumer Protection Act, and had no constitutional right to do so based on her religious beliefs. State of Washington v. Arlene’s Flowers, 2017 Wash. LEXIS 216, 2017 WL 629181.
This ruling follows a string of losses by businesses that sought to rely on religious objections to refuse wedding-related services to same-sex couples, involving a photographer in New Mexico (Elane Photography v. Willock, 309 P.3d 53 (N.M. 2013)), a baker in Colorado (Mullins v. Masterpiece Cakeshop, 370 P.3d 272 (Col. App. 2015)), and a farm that provided a venue for weddings in upstate New York (Gifford v. McCarthy, 23 N.Y.S.3d 422 (N.Y. App. Div. 2016)). So far, no final court decision has ruled in favor of a for-profit business claiming a right to discriminate against same-sex couples in connection with their weddings, either under the federal and/or state constitutions or under a state’s Religious Freedom statute. Washington State does not have such a statute, so Ms. Stutzman’s case came down to two questions: whether her refusal of services violated the public accommodations and consumer protection statutes, and whether she was privileged to withhold her services by the 1st Amendment of the U.S. Constitution or an equivalent provision of the Washington Constitution.
Robert Ingersoll and Curt Freed had been living together in what the opinion by Justice Sheryl Gordon McCloud calls “a committed, romantic relationship” for several years. Over those years they had been regular customers of Arlene’s Flowers, spending by their estimate as much as $1,000 total at the store. After the Washington legislature passed a bill allowing same-sex marriages in 2012, Freed proposed to Ingersoll and they planned to marry on their ninth anniversary in September 2013 with a large reception at a major event venue, “complete with a dinner or reception, a photographer, a caterer, a wedding cake, and flowers.” Naturally, Ingersoll went to Arlene’s Flowers to make arrangements, anticipating no problems because the owner, Ms. Stutzman, knew him and Curt, knew they were gay, and had dealt with them many times. They considered Arlene’s Flowers to be “their florist.”
So it was a big surprise when Stutzman told Ingersoll that she could not do the flowers for their wedding because of “her relationship to Jesus Christ.” Indeed, the conversation did not even get as far as discussing what kind of flowers or floral arrangements the men wanted, or whether Stutzman was being asked to deliver and set up floral arrangements at an event venue or just to prepare them to be picked up at her store.
The story quickly got media play after Ingersoll posted about it on his facebook.com page, inspiring the state’s Attorney General Bob Ferguson to initiate litigation against Stutzman and her business, and Ingersoll and Freed filed their own complaint. The cases were combined in Benton County Superior Court, where the trial judge granted summary judgment against Stutzman.
The analysis by the court will be familiar to anybody who has been following this issue as it has unfolded in parallel with the advance of marriage equality. Courts have generally rejected the argument made by Stutzman that refusing to do business with same-sex couples in connection with their marriages is not sexual orientation discrimination because the refusal has to do with “conduct” (a wedding) rather than “status” (sexual orientation). The Washington court decisively rejected this argument, advanced by lawyers from Alliance Defending Freedom, the organization that has been involved in the other cases mentioned above and which is petitioning the Supreme Court to review the Colorado baker case. So the major focus of the case is not on whether she violated the statutes, that being easily decided, but rather on whether she was privileged to do so because of constitutional protection for her freedom of religion, speech or association.
Most civil rights laws include provisions exempting religious institutions and their clergy from complying to the extent that their doctrines would be violated, but the exemptions usually do not extend to private, for-profit businesses. The Supreme Court of the United States ruled in the Hobby Lobby case, consistent with prior decisions going back to the 1990s, that the 1st Amendment does not require the government to exempt businesses from complying with statutes of general application, such as civil rights laws or, in that case, the Affordable Care Act. However, under the federal Religious Freedom Restoration Act (RFRA), a statute enacted in response to the Supreme Court’s religious freedom ruling, the Supreme Court found that a for-profit business may be entitled to claim an exemption from complying with a federal statute or regulation because of the religious views of the owners of the business. The test in such a case would be whether the challenged statute imposes a substantial burden on the free exercise rights of the business, and then whether the government has both a compelling interest for the statute and has adopted the least intrusive means of achieving that interest.
Washington State does not have a RFRA, so Stutzman was limited to making constitutional claims. The court rejected her argument that her floral arrangements were the kind of artistic creations entitled to free speech protection, or that requiring her to design and supply floral arrangements for a wedding ceremony of which she disapproved would burden her freedom of association. The court conceded that requiring her to devise floral decorations for such an event would burden her free exercise of religion, but found that the state’s compelling interest in protecting all its residents from discrimination in places of public accommodation clearly outweighed the incidental burden on religion.
“As applied in this case,” wrote Justice Gordon McCloud, “the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman’s religious free exercise, the WLAD does not violate her right to religious exercise under either the First Amendment or article I, section 11 [of the Washington constitution], because it is a neutral, generally applicable law that serves our state government’s compelling interest in eradicating discrimination in public accommodations.”
When the court refers to a “neutral law,” it means a law that does not expressly target religion and was not enacted for the specific purpose of imposing a burden on religion. A law that, in general, forbids all public accommodations from discrimination because of sexual orientation or gender identity, is such a “neutral law.” Of course, one notes, religiously-inspired advocates such as Alliance Defending Freedom would argue that it is not neutral, and that legislators adopt those laws knowing that they will burden religious believers, because testimony to that effect is usually presented in legislative hearings and the argument is made during legislative debate. But the courts generally will not attribute a discriminatory intent to the legislature as a whole on the basis of such testimony and arguments.
Stutzman had argued that her refusal to “do” the flowers for the wedding was not a serious problem for the two men because she suppled Ingersoll with the names of other florists who would readily do it, and in fact after this case got publicity several florists contacted Ingersoll and Freed and volunteered to provide flowers for their wedding. In the event, the men were so affected by what had happened to them that they dropped their plans for a big wedding ceremony and instead had a small private event with minimal fuss. The court said that being able to get flowers was not really the issue in this case. Rather, it was about the violation of civil rights stemming from a denial of services because the customers were a gay couple. Indeed, in her deposition Stutzman conceded that she would happily supply flowers for a Muslim wedding or a wedding for atheists, making clear that her objections here focused on the fact that it was for a “gay wedding.” It was not relevant that she claimed she was not homophobic and happily sold flowers to Ingersoll and Freed when it was not for a wedding. That was not the point of the case.
The timing of this decision is particularly interesting, because the Supreme Court was scheduled to discuss whether to grant review of the Colorado baker case on February 17, having listed it at two of the Court’s prior conferences and having sent for and received the full record from the state courts just recently. If the Court made a decision to review that case at the February 17 conference, it would probably be announced on Tuesday, February 21.
The ACLU of Washington has been involved in representing Ingersoll and Freed in this case. A spokesperson for Alliance Defending Freedom, representing Stutzman, announced that they would petition the Supreme Court to review this case as well as the Colorado baker case.