Late last week, the Washington State Supreme Court ruled against a Seattle-area florist who refused to provide services for a same-sex wedding, raising the same religion-based arguments that business owners in other states have:
The Washington state Supreme Court on Thursday ruled against a florist who declined to make an arrangement for the wedding of a same-sex couple .
The ruling is the latest in the national fight over religious freedom and anti-discrimination laws, coming one year after the US Supreme Court sided with a Colorado baker who declined to make a cake for a same-sex couple.
“The State of Washington bars discrimination in public accommodations on the basis of sexual orientation. Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation,” the nine-member state court said in its unanimous decision.
The Washington case involves Arlene’s Flowers and Barronelle Stutzman, a florist who refused in 2013 to make a floral arrangement for long-time client Robert Ingersoll’s same-sex wedding. In a statement issued last year, she said that while she serves everyone, she cannot “create a custom floral arrangements that celebrates events or express messages at odds with my faith.”
Stutzman plans to appeal to the US Supreme Court, her lawyers said Thursday, a move that could eventually result in a broader ruling on religious freedom, according to Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
“Today’s ruling clears the way for the justices to reach the larger question the Supreme Court ducked in the Masterpiece Cakeshop case last year, namely, whether states apply neutral anti-discrimination laws to secular businesses in a manner that is inconsistent with individual business owners’ religious beliefs,” Vladeck said.
“Whether the justices actually want to reach the larger question, of course, remains to be seen, and this case just became a good vehicle for finding out,” Vladeck added.
This case is, of course, similar to a case arising out of Colorado which the Supreme Court’s ruled last year That case involved a baker who had refused to bake a cake for a same-sex wedding reception, citing religiously based objections similar to those in the Washington state case. In that case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Justices ruled that the trial court below had failed to give appropriate deference to the arguments that the baker made regarding the role his religious beliefs played in his decisions and remanded the case with instructions regarding the proper procedure for handling those arguments. The Court did not, however, rule on the merits of the baker’s claims nor did it provide an answer to the central question in the case, namely the question of whether religious liberty trumps the state’s interest in enforcing anti-discrimination laws.
As it happened, the Court also had before it at this time last year this same case, which it had held onto pending the outcome in the Colorado case. In a ruling at the end of the term, the Court remanded the case to the Washington state courts for reconsideration of the case based on the Court’s ruling in the Masterpiece Cakeshop case. Specifically, the Supreme Court asked the state courts to consider whether due deference had been given to the business owner’s religious liberty arguments. This ruling from Washington Supreme Court does just that and finds that there was no evidence of the same defects that existed in the Colorado case:
Washington’s court system did not act with religious animus when it ruled that a Richland florist broke the state’s anti-discrimination law by refusing to sell flowers for a same-sex wedding, a unanimous Washington Supreme Court said on Thursday.
The state Supreme Court reaffirmed a ruling it made in 2017, after the U.S. Supreme Court sent the case back to Washington to determine whether it had been handled with “religious neutrality,” as guaranteed by the U.S. Constitution.
The U.S. Supreme Court had ruled in favor of a Colorado bakery that refused to provide a wedding cake for a same-sex couple. But it was a narrow ruling, justified on the grounds that the Colorado agency that sanctioned the bakery had “some elements of a clear and impermissible hostility” toward the sincere religious beliefs of the bakery owner.
The state Supreme Court said that was not the case here in Washington.
“We are confident that the courts resolved this dispute with tolerance,” Justice Sheryl Gordon McCloud wrote in the unanimous opinion. “The state of Washington bars discrimination in public accommodations on the basis of sexual orientation. Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation.”
(…)
Stutzman had argued that forcing her to provide flowers for a same-sex wedding violated her religious beliefs and was tantamount to “compelled speech” because it forced her to endorse same-sex marriage.
The state Supreme Court, for the second time on Thursday, disagreed.
The court ruled that selling wedding floral arrangements was not speech, but conduct, and thus not protected under the First Amendment.
“The decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding,” the court ruled. “Providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism.”
Stutzman also argued that since other florists were willing to provide flowers to the wedding, there was no real harm caused by her refusal to serve Ingersoll and Freed.
“We emphatically reject this argument,” the court wrote. “Public accommodation laws do not simply guarantee access to goods or services. Instead they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace.”
Similarly, the religious liberty argument advanced by the florist is also seemingly without merit based on existing Supreme Court precedent. The question is whether the First Amendment claims of the bakers outweigh the governmental interest at issue. In this case, Washington’s interest is one that the Court has generally found to be a compelling one, namely the interest in protecting minority groups from invidious discrimination in public accommodations. In many ways, then, the case is similar to the issues raised by Employment Division v. Smith, a case that the Court decided in 1990 in which it rejected the argument of a Native American who tested positive for the use of peyote that the fact that using the drug was part of a religious ceremony should exempt him from a state policy that barred unemployment insurance to someone who was terminated due to an illegal act such as drug use. The Court’s majority opinion in that case, which was written by Justice Scalia and joined by conservatives such as William Rehnquist and Anthony Kennedy, essentially held that a claim of religious liberty was not sufficient to provide someone with an exemption from a generally applicable law that was not directed at a specific religious faith or at religious practice in general. In other words, a claim of religious liberty does not trump a generally applicable law in which the government has a compelling law and where the law in question is narrowly tailored to address that interest.
In addition to the Smith case, there are other rulings by the Supreme Court that do not bode well for the florist in this case. In a 2011 case called Christian Legal Society v. Martinez, the Court upheld a policy by the University of California Hastings College of Law that barred officially sanctioned student organizations from discriminating in membership and other policies based on a prospective member’s status or beliefs. Kennedy joined a majority in that case in an opinion written by Justice Ginsburg and filed his own concurring opinion. The student organization had argued that its Christian beliefs were sufficient justification for barring prospective members who engaged in “unrepentant homosexual conduct” or otherwise supported ideas such as same-sex marriage or LGBT rights. In his concurrence, Kennedy specifically argued that the interest in barring discrimination outweighed the First Amendment rights of the student organization. If Kennedy views the arguments made by the bakers the same way he did the student organization in Martinez, he seems more likely to side with the Court’s liberal wing and in favor of the State of Colorado. If he finds that the state’s efforts to compel the baker to make a cake that goes against their religious beliefs and compelling them to send a message they do not endorse, then he could end up siding with the conservatives and ruling for the bakers.
As I noted when the Court accepted this case for argument, my tendency is to argue that the argument the bakers are making here is not consistent with existing law. While I am a strong supporter of freedom of speech rights, the idea that baking a cake constitutes speech for First Amendment seems to be without much merit. In some cases, such as cases involving wedding photographers, officiants, or others, the argument that there is a First Amendment rather than a purely commercial aspect to the work being solicited seems to have merit. In others, such as a florist asked to provide flowers for a wedding or a baker asked to bake a wedding cake and have it delivered to a specific venue at a certain time, the argument that speech is being compelled seems weak.
Additionally, even if it is the case that there is a freedom of speech right being impacted by the law, there is recent Supreme Court precedent that suggests that this does not mean the law in question has been applied in an unconstitutional manner. Just this year, in Expressions Hair Design v. Schneiderman the Supreme Court held that a law “does not violate the First Amendment because it has an effect on speech that is “only incidental to its primary effect on conduct.”” In this case, that would mean that even if there is a valid freedom of speech claim being made by the baker, it does not trump a generally applicable law barring discrimination that clearly has only an incidental mpact on those claims. The ruling against the Plaintiffs in Schneiderman was unanimous, although Justices Breyer, Sotomayor, and Alito wrote or signed onto concurring opinions distinguishing certain issues in the case.
