SCOTUS Denies Review to Anti-LGBTQ Florist
Gay couple sought fl owers for 2013 wedding
BY ARTHUR S. LEONARD
The Supreme Court announced
on July 2 that
it will not hear an appeal
by Barronelle Stutzman
and her business, Arlene’s Flowers,
from a decision by the Washington
State Supreme Court holding that
she violated the state’s Civil Rights
Act by refusing to provide fl oral
decorations for the wedding of
Robert Ingersoll and Curt Freed in
2013 because of her religious objections
to same-sex marriage. The
state court rejected her argument
that she had a First Amendment
right to refuse the job.
Ingersoll and Freed became
a couple in 2004. In 2012 Washington
voters approved a referendum
making same-sex marriage
available, and Freed proposed to
Ingersoll. They planned to have a
big wedding in the fall of 2013. Ingersoll
was a long-time customer
of Stutzman’s fl orist shop, and he
considered them to be friends — so
he approached her about doing the
fl owers for his wedding. She said
no because of her religious beliefs
about marriage. She claims that
she offered to refer him to other fl orists
who would be happy to take
his order. He was shaken enough
by this rejection to scale down the
scope of the wedding ceremony,
and Freed, upset by what had happened,
posted about it to his Facebook
account.
The story broke out into local
media. The state attorney general’s
offi ce sent a letter to Stutzman, demanding
that she sign a document
promising not to discriminate in
this way in the future, but she refused
to sign. The attorney general
fi led suit against her in state court
and Ingersoll and Freed joined as
co-plaintiffs, represented by the
ACLU. Alliance Defending Freedom
(ADF), a religious legal advocacy
group, sprang to Stutzman’s defense,
arguing that she was entitled
to decline the business based on her
First Amendment rights of freedom
of religion and freedom of speech.
The trial court ruled in favor of the
state and Ingersoll and Freed, and
Robert Ingersoll and Curt Freed were rejected by a fl orist when they asked for fl owers for their wedding
in 2013.
Stutzman appealed. The Washington
Supreme Court affi rmed the
trial court, and ADF petitioned the
Supreme Court for review. The petition
was pending at the court in
2018 while it was deciding the Masterpiece
Cakeshop case.
In Masterpiece, the Court held
that Jack Phillips, a baker who refused
to make a wedding cake for
a same-sex couple and was found
to have violated Colorado’s Civil
Rights Act, had confronted an administrative
forum that was openly
hostile to his religious beliefs,
and thus was denied a fair hearing
of his First Amendment defense.
The court set aside the Colorado
court’s ruling against Phillips, but
expressed no view about whether
Phillips was entitled by the First
Amendment to decline the cake
order on religious or free speech
grounds. However, the court stated
that in general, businesses are required
to comply with state antidiscrimination
laws, regardless of
their owners’ religious views.
After the Masterpiece ruling, ADF
told the court that Washington’s attorney
general had shown hostility
to religion in public comments he
made about the case, and the court
sent the case back to the Washington
Supreme Court to “reconsider”
in light of Masterpiece. The Washington
court stated, in its new opinion,
that it had scoured the record
ACLU OF WASHINGTON
and found no signs of hostility to
religion by the trial court or itself. It
concluded that under Masterpiece,
the attorney general had no obligation
to be neutral regarding religion,
as the Supreme Court’s ruling had
focused on the neutrality of the forum
that decided the case, the Civil
Rights Commission, and not those
charged with enforcing the law. The
Washington Supreme Court reaffi
rmed its earlier ruling, quoting extensively
from its earlier opinion.
ADF fi led a new petition with the
Supreme Court on September 11,
2019. ADF asked the court to decide
the question it had skirted in
Masterpiece: whether a business
owner with religious objections to
same-sex marriage could be compelled
by the state to provide goods
or services for a same-sex wedding.
It also asked the court to consider
whether the requirement that government
be neutral regarding religion
extended to offi cials like the
attorney general of Washington,
acting in his law enforcement role.
Of course, underlying this petition,
as in the Masterpiece case, was the
question whether the court would
stand by its long-time precedent
(dating back to 1990), Employment
Division v. Smith, which held, in
an opinion by Justice Scalia, that
there was no religious free exercise
exemption from complying with
neutral laws of general applicability,
LEGAL
such as, for example, a state
anti-discrimination law.
Many were expecting the court to
address that issue in Fulton v. City
of Philadelphia, decided by the court
a few weeks ago on June 17. Catholic
Social Services (CSS) argued
that it had a free exercise right to
refuse to certify same-sex couples
to be foster parents, and that Philadelphia
violated its First Amendment
rights by terminating its contract
with the city to provide this
service. The court avoided dealing
with the Smith precedent by fi nding
that CSS was not a public accommodation
under Philadelphia’s
Fair Practices Ordinance, and that
because the written contract used
by the city with foster care agencies
reserved to the city the sole right to
make exceptions to its non-discrimination
provision, that provision
was not a rule of “generally applicability.”
Thus, Smith did not apply to
the case, and the court fell back on
its Free Exercise doctrine in cases
not governed by Smith, evaluating
the city’s position under the “strict
scrutiny” standard and concluding
that because the city was able to
make exceptions under its contract,
it could not argue that it had a compelling
interest that all contractors
comply with the non-discrimination
requirement. For example, the city
had in the past allowed foster care
agencies to take race into account
in recommending foster parents for
particular children, even though
the contract language forbids discrimination
because of race.
The day after the court issued
the Fulton decision, ADF fi led a
new statement with the court, urging
it to grant review to Arlene’s
Flowers. The statement noted that
several of the justices had expressed
disappointment in their
concurring opinions in Fulton that
the court had avoided reconsidering
the Smith precedent, and that
a majority of the justices had indicated
doubt about its continuing
validity, so it seemed likely that the
court would grant review.
Consequently, the announce-
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