Washington Supreme Court Rules Against Florist Who Refused To Serve Same-Sex Couple

The Washington State Supreme Court has ruled against a Seattle-area florist who refused to provide flowers for a same-sex wedding.

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. Smitha 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.

FILED UNDER: First Amendment, Fourteenth Amendment, Law and the Courts, LGBT Rights, Religion, U.S. Constitution, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. John430 says:

    So…can I go into an Islamic restaurant and demand pulled pork BBQ? Or perhaps a Hindu Indian restaurant and sue for a hamburger?

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  2. There is no law against declining to sell pork to someone.

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  3. Teve says:

    So…can I go into an Islamic restaurant and demand pulled pork BBQ? Or perhaps a Hindu Indian restaurant and sue for a hamburger?

    Cool. 13:50 EDT, and I can rest assured knowing I won’t read anything stupider than that for the remainder of the day. 😀 😀 😀

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  4. SKI says:

    @John430: Only if they already have it on the menu.

    Did you even take a second to think before regurgitating an idiotic facebook meme as something profound?

    Here it is in simple words: a business can choose what services they want to offer but not whom they want to offer them to.

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  5. EddieInCA says:

    John430 says:
    Monday, June 24, 2019 at 13:44

    So…can I go into an Islamic restaurant and demand pulled pork BBQ? Or perhaps a Hindu Indian restaurant and sue for a hamburger?

    Ladies and gentlemen. MAGA nation intellect on full display. Sad!

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  6. Modulo Myself says:

    The basic problem is that if a floral arrangement is speech, so are meatloaf recipes and quilts. You could decline to serve gay people at your restaurants or allow them to stay at your B & B by the same logic. The logic can be stretched incredibly far, which is the point–conservative Christians are theocrats, and nothing more. Bigotry is their religion. If they can’t convince anyone other than the kids they trap in their worthless lives that being gay is wrong, they can at least demand the absolute legal right to harm others.

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  7. Kathy says:

    @John430:

    Of course you can. If you want to waste money enriching an unscrupulous lawyer.

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  8. Daryl and his brother Darryl says:

    @John430:
    Yet another red-hatted loon sighting…

    can I go into an Islamic restaurant and demand pulled pork BBQ?

    With every comment you further prove your ignorance.

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  9. DrDaveT says:

    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.

    Wait, what? It’s suddenly not OK for a court to show “clear hostility” toward the sincere religious beliefs of someone who practices live human sacrifice to Cthulhu?

    Either the sincerity of the beliefs is irrelevant, or it’s determinative. There really isn’t a middle ground there that isn’t just thinly-disguised state religious preference.

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  10. DrDaveT says:

    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.

    As I pointed out in another recent thread, this line of argument requires the bigot to assert that there is implied voluntary approval speech in every other transaction, understood by the public at large as saying “I, the florist hired to provide flowers for this wedding, find it to be a worthy union according to my sincerely held religious beliefs.” At that point, you’d better be able to produce some evidence of having done your due diligence to verify that none of those other happy couples are fornicators, or wife-beaters, or Muslims, or so lost to propriety as to sometimes dance to that jungle boogie music, or whatever else your sincerely held beliefs label as sinful.

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  11. Barry says:

    @DrDaveT: From my IANAL understanding of the Colorado case, one of the government official had expressed religiously discriminatory views towards that baker, and SCOTUS had ruled that that put the burden of proof on the government.

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  12. Kathy says:

    BTW, anyone has any idea what an “Islamic restaurant” is?

    I know of Lebanese, Egyptian, Indonesian restaurants, among others, and some may have been halal, but I’ve never seen an Islamic restaurant.

    Anyway, this guy may be on to something: get rich quick, the deplorable way.

    Let’s see, after being denied a pork sandwich at an “Islamic restaurant,” you should go to a florist and request a wrench, then to a bakery and ask for a floral arrangement, then a hardware store and request a latte, then to a hospital to ask for a cake, next to a clothing store to get your car fixed, then to an auto mechanic to get groceries, and to a lawyer to sue the pants off these miscreants who won’t sell you products they don’t carry, or provide services they don’t provide.

    It’s foolproof, and 100% guaranteed to make the lawyer richer, if not rich, quickly.

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  13. SenyorDave says:

    @Kathy: I think you have just filled the calendar of John 430 for the next month.

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  14. Neil J Hudelson says:

    @Kathy:

    Restaurants with brown people at the counter. Today for lunch I stopped at an Islamic restaurant and had some amazing Tacos al Pastor.

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  15. Daryl and his brother Darryl says:

    @Kathy:
    Well played…
    Poor John 4:20 is sitting at his keyboard, in his onesie, eating cheetos and muttering to himself.

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  16. Teve says:

    @Neil J Hudelson: Al pastor actually traces back to people taking schwarma to Mexico from Lebanon! It’s indirectly Islamariffic!

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  17. Kathy says:

    @Neil J Hudelson:

    That one was not halal 🙂

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  18. DrDaveT says:

    @Barry:

    From my IANAL understanding of the Colorado case, one of the government official had expressed religiously discriminatory views towards that baker, and SCOTUS had ruled that that put the burden of proof on the government.

    I think the word they used was ‘hostile’, not discriminatory. The Commission was openly hostile to the baker’s beliefs, comparing them to advocacy for slavery (among other things).

    …but that’s my point — it’s the government’s job to be hostile to hateful beliefs that are used to violate people’s civil rights, whether those beliefs are sincerely held or not, religion-based or not. Justice Kennedy would not have batted an eye had the Commission been openly hostile to religious beliefs involving mutilation of children, or torturing animals to death. Which (to me) clearly establishes that what the Court really objected to was calling out a Christian for hateful beliefs — not for being hostile to religious beliefs per se.

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  19. gVOR08 says:

    Stutzman plans to appeal to the US Supreme Court, her lawyers said Thursday

    It would probably be more correct to say that her lawyers, Alliance Defending Freedom, plan to appeal, feeling the Boof and Gorsuch may be receptive to arguments Doug finds less than compelling.

    News coverage always makes these things sound like some poor small business versus an aggrieved gay couple, but this sort of thing is an industry, ideological legal foundations battling each other.

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  20. Neil Hudelson says:

    @Teve:

    I know :).Turns out, immigration tends to be great for culture, even if it makes our restaurants a bit more Islamic-y.

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  21. Teve says:

    I’d had very little Middle Eastern food when I went to college and found myself living a mile down the road from a bakery/grocery store started by three brothers from Lebanon. Shawarma, tabbouleh, labneh, hummus, baklava..
    I was in heaven.

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  22. Just nutha ignint cracker says:

    @John430: As Bill Handel, host of the “Handel on the Law” radio show has noted, you can sue anyone anytime you wish to and for any reason. The issue is whether you can win–and as an ancillary issue, whether you might be fined or otherwise impacted by wasting the courts time. Even so, I have to agree with the rest that your post today may well have been the most stupid remark you have ever made in the almost 10 years that I’m aware of your making stupid remarks. Very. Very. Pathetic. Wow!

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  23. Just nutha ignint cracker says:

    I have to say, though, that I am still confused about how al pastor–which is based on pork–qualifies as an Islamic food. Now the fact that not all Lebanese are followers of Islam doesn’t confuse me at all. I already knew that. It’s just the other side of the ethnicity issue that is baffling me.

    On the other hand, if all food consumed by people with more melaninic skin is “Islamic,” that would remove the confusion. Therefore, considering that it was John430 (of the amazing Hispanic “love of his life”) that started the Islamic food part of the discussion… Yeah, I guess it all makes enough sense to me now.

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  24. DrDaveT says:

    @Just nutha ignint cracker:

    I have to say, though, that I am still confused about how al pastor–which is based on pork–qualifies as an Islamic food.

    From the name (“shepherd style”), I was assuming that it’s a lamb dish. Perhaps the original was lamb?

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  25. Just nutha ignint cracker says:

    @DrDaveT: That makes some sense. Thanks, that helped a lot. Also, I later realized that as cuisine moves from place to place the people living in the new place adapt it using what they have.

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  26. @Kathy:

    BTW, anyone has any idea what an “Islamic restaurant” is?

    I know of Lebanese, Egyptian, Indonesian restaurants, among others, and some may have been halal, but I’ve never seen an Islamic restaurant.

    A restaurant perhaps not, but in the last century I lived in a street with an halal butcher shop; and already read somewhere that, if you visit India, it is more safe to eat in Islamic restaurants (apparently the Islamic food deteriorates less in hot climates than the Hindu food) – there is indeed “businesses specialized in Islamic foof”.

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  27. Monala says:

    @DrDaveT: A journalist in fact contacted some of the bakeries involved in these cases, posing as a potential client and found that, “Sweet Cakes were more than willing to accommodate cakes for divorce parties, babies born out of wedlock, a Wiccan celebration for the summer solstice (pentagram included), and a non-kosher barbecue with lobster, steak and pulled pork sandwiches.”

    https://www.mediaite.com/food/anti-gay-marriage-bakeries-apparently-fine-with-making-divorce-wiccan-stem-cell-cakes/

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  28. Monala says:

    @DrDaveT: Even better: here’s the original article and the results of the calls:

    https://www.wweek.com/uncategorized/2013/05/29/the-cake-wars/

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  29. Richard Gardner says:

    Minor correction (and late), but Richland, Washington is in “South-Central Washington” so not a “Seattle-area Florist” of the first sentence (Portland or Spokane are closer). It is 200 miles away (3-6 hours depending on traffic and weather) and demographically totally different (few Asians, lots of Mexican-Americans). The Tri-Cities of WA are on the Columbia River and would be a sage brush desert without irrigation, but with irrigation one of the most productive agricultural area in the USA. Sort of like calling Philly in the NYC-area. Nope.

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  30. Mister Bluster says:

    I don’t know what your problem is John.
    I suspect any place in Texas will be glad to serve you Cow Pie!

    ReplyReply

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