Sunday, February 19, 2017
by Jeremiah Ho
Criticizing another’s garden—or perhaps wedding bouquet, here—doesn’t keep the weeds out of your own. The Washington Supreme Court has rendered a decision in the case of a florist’s refusal to provide flowers to a same-sex couple for their wedding. The florist had justified her refusal based on her religious beliefs.
The decision responds to allegations that the florist’s refusal to sell flowers to a gay couple, Robert Ingersoll and Curt Freed, for their wedding violated the public accommodations provision of Washington state’s antidiscrimination statute. Previously, the florist, Arlene Stutzman, had defended on First Amendment doctrines of free speech, religious exercise, free association, and hybrid rights, as well as free exercise of religious under the Washington state constitution. She and the floral shop (as corporate entity) had lost below and then appealed.
In 2006, Washington state added “sexual orientation” as a protected class. Also by state referendum, the state legally recognize same-sex marriages beginning in 2012. Although in almost every aspect, Stutzman, claimed narrowly that her justifications for refusal to sell to plaintiffs-respondents, Freed and Ingersoll, were based on her objections to a wedding ceremony that contradicted her religious beliefs and not the same-sex marital status or sexual orientation of the respondents, the court was not persuaded on such narrow grounds. Rather, the court reject such status-versus-conduct distinctions and observed that Washington’s antidiscrimination statute was mandated “to be construed liberally” to decide whether or not her refusal to sell was sexual orientation discrimination. The court also found that the antidiscrimination statute had no requirement for a balancing of religious rights against rights of members of a protected class.
All in all, the ways in which Stutzman legally couched her justifications on religious grounds were not new legal arguments in the court battles between religious freedom and sexual orientation antidiscrimination. The court’s ruling seems to pull the veil down on those tactics to reveal the strawman arguments based on blanket constitutional First Amendment guarantees that religious litigants make when defending against discrimination claims—i.e. religious belief arguments made by the perpetrators of the discrimination that artfully prompt either narrow or broad readings of their discriminatory conduct in order to obfuscate the discriminating nature. For instance, Stutzman narrowly rationalized her refusal to sell flowers as an objection to the wedding ceremony of same-sex couples based on religious grounds rather than a refusal to sell based their sexual orientation. The court declined to entertain that narrow reading by rejecting her conduct-versus-status distinction (same-sex wedding v. sexual orientation) based on recognition by the Washington state statutes that “all discriminatory acts,” including those that have direct or indirect results in any marginalization based on sexual orientation, is a violation. In other words, she couldn’t narrowly reinterpret her conduct to an objection against same-sex wedding ceremonies based on her religious beliefs in order to skirt violations under the anti-discrimination statute. She can’t conveniently “forget” the other half of that equation to dodge discrimination: the fact that the couple in this wedding happened to be gay. Talk about not denying Ingersoll and Creed their dignity and humanity.
Additionally, here’s an example of how Stutzman broadly construed her actions when it suited her. She defended her case by also claiming that the Washington state antidiscrimination statute violated her First Amendment free speech rights because making her sell her flowers to Ingersoll and Creed would have been a coerced endorsement of same-sex marriages that would counter her religious convictions. The court was not persuaded by this “compelled speech” argument because the commercial sale of her floral wedding arrangements could not be viewed as expressive speech “in a literal sense.” Rather, it was conduct that did not intend to communicate a message—i.e. it was not “inherently expressive” conduct that then could be coerced or compelled.
Last week’s decision in this case shows that a discriminatory party cannot use religious beliefs to argue, either narrowly or broadly, to skirt accusations of discrimination. One cannot in such ways hide behind religion by saying one’s religion led to a discriminatory act. It’s still discriminatory, even if it is religious.
But as her attorney alluded since the decision, a request for appeal to SCOTUS is forthcoming. So stay tuned.
Don’t toss that bouquet just yet.