By Chris Johnson, Washington Blade
The Washington Supreme Court has upheld the state’s civil rights law in the face of a challenge to the statute from a florist who refused to serve a same-sex couple based on religious objections.
Writing for a unanimous nine-member court of elected judges, Justice Sheryl Gordon McCloud determined in a 59-page decision Barronelle Stutzman, the sole owner of Arlene’s Flowers in Richland, Wash., discriminated on the basis of sexual orientation in 2013 by refusing to provide floral arrangements for the wedding of a gay couple, Robert Ingersoll and Curt Freed.
“[T]he conduct for which Stutzman was cited and fined in this case – refusing her commercially marketed wedding floral services to Ingersoll and Freed because theirs would be a same-sex wedding – constitutes sexual orientation discrimination under the WLAD,” McCloud wrote. “We also hold that the WLAD may be enforced against Stutzman because it does not infringe any constitutional protection.”
Although Stutzman argued the Washington Law Against Discrimination violates her rights to free speech and religious freedom, the high court determined the law didn’t violate the rights afforded to her under the U.S. and Washington State constitutions.
On the claim of free speech, McCloud concludes the acts of arranging flowers “do not meet” the definition of speech based on legal precedent.
“Certainly, she argues that she intends to communicate a message through her floral arrangements,” McCloud writes. “But the major contest is over whether Stutzman’s intended communications actually communicated something to the public at large — whether her conduct was ‘inherently expressive.’ And her actions in creating floral arrangements for wedding ceremonies do not satisfy this standard.”
McCloud also rejects Stutzman’s arguments the court should subject the Washington Law Against Discrimination to strict scrutiny, the most stringent form of judicial scrutiny, based on religious freedom.
“In this case, Stutzman seeks an exemption that would allow her to refuse certain customer services to members of a WLAD-protected class on religious grounds,” McCloud writes. “Under a First Amendment free exercise analysis, the WLAD would trigger strict scrutiny if it permitted that sort of discrimination only for nonreligious reasons, and thus indicated the government’s preference for secular discrimination. But the WLAD does not do this. ”
The Washington Supreme Court decision upholds the ruling of the Benton County Superior Court, which found Stutzman violated the Washington Law Against Discrimination and fined her $1,000.
Because the case is based on a federal claim, Arlene’s Flowers is able to file a petition to the U.S. Supreme Court after the state high court ruling to reconsider the ruling.
Kristen Waggoner, senior counsel at the Alliance Defending Freedom, pledged on the day the Washington Supreme Court decision was handed down to file a petition of certiorari.
“It’s no wonder that so many people are rightly calling on President Trump to sign an executive order to protect our religious freedom,” Waggoner said. “Because that freedom is clearly at risk for Barronelle and so many other Americans, and because no executive order can fix all of the threats to that freedom, we will ask the U.S. Supreme Court to hear this case and reverse this grave injustice.”
A similar petition making a claim a state LGBT non-discrimination law violates religious freedom is already pending before the Supreme Court. Masterpiece Bakeshop filed the petition in July after the state courts ruled it violated state law by refusing to bake a cake for a same-sex wedding for religious reasons. The Supreme Court has scheduled the petition for consideration during its upcoming conference Friday.
Jennifer Pizer, law and policy director for Lambda Legal, said the odds are against the U.S. Supreme Court taking up either Masterpiece Cakeshop or Arlene’s Flowers cases.
“I think a grant of cert in either case is unlikely because the federal free exercise claims are very weak and the speech claims in these cases, in my view, are even weaker,” Pizer said. “But, we’ll probably know soon about Masterpiece Cakeshop. And if that petition, surprisingly, is granted, we’ll have an intense showdown on these issues. If that petition is denied, and if history is a guide, the tiny likelihood of success on a follow-on, re-echoing cert petition doesn’t mean ADF won’t try again in Arlene’s Flowers.”