Suits filed by a gay couple and Washington Attorney General Bob Ferguson against a Richland florist have lingered for almost one year in Benton County Superior Court. Perhaps a U.S. Supreme Court decision Monday in a similar case in New Mexico will get the litigation against Arlene’s Flowers and Gifts moving toward resolution.
The results of the running battle between free expression and non-discrimination in the marketplace has been “sobering,” as one New Mexico justice said.
The Washington case began with the refusal by the owner of Arlene’s to provide flower arrangements for the wedding of two men, one of whom was a longtime customer. Barronelle Stutzman, who has also employed homosexuals, argues that her arrangements are an expression of speech she should not be compelled to make in violation of her religious beliefs.
The would-be couple sued for discrimination, and Ferguson filed a separate action alleging violations of the state’s Consumer Protection Act.
The New Mexico case was brought by photographer Elaine Huguein, who refused to take pictures at a commitment ceremony for two women. At the time – 2006 – New Mexico did not sanction same-sex marriages, a change in law not made until 2013.
The photographer, like Stutzman, said her pictures are artistic speech and that compelling her to take pictures interfered with her freedoms of speech and religion. The New Mexico courts, at every level, rejected that argument.
Although there are differences in the particulars of the New Mexico and Washington cases – the attorney general’s intervention, for example – the legal group representing the florist and photographer is the same: Alliance Defending Freedom, which describes itself as an “alliance-building legal ministry that advocates for the right of people to freely live out their faith.”
The Alliance says it has won 80 percent of cases it has litigated, including 38 before the U.S. Supreme Court. As of Monday, that does not include Elane Photography v. (Vanessa) Willock, one of the women involved in the commitment ceremony.
Four of nine justices must be willing to hear the case. The appeal fell short and, as usual, the court did not explain its reasoning.
So the New Mexico Supreme Court rulings stand. But that may not be the last word, because the U.S. Supreme Court may choose to act when a different set of facts posing similar constitutional issues better frames the issue for consideration by the justices.
The Alliance Defending Freedom is not going to let the issue rest, and Arlene’s/Stutzman may make a better case. But there are no good ones.
In a separate opinion that concurred with the New Mexico court majority, sobered Justice Richard Bossom said the case’s outcome would leave a “tangible mark” on Huguein and others compelled to behave in the marketplace in ways they would not in private. Although sympathetic, he nevertheless said tolerance and respect for others sets the United States from discord in other societies.
The days when discrimination was acceptable in commerce are long gone. Put some flowers on the grave.
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