WASHINGTON – The Supreme Court acknowledged in its ruling about a Colorado baker this week that “further elaboration in the courts” will be necessary to answer whether a business owner’s religious rights can provide exemption from laws that require equal service to a gay couple who decide to marry.
The justices will meet privately Thursday to decide whether they might give that guidance – and sooner rather than later.
The court is scheduled to review a petition from a florist in Richland, Washington, who refused to provide a floral arrangement for a longtime customer when he told her it was for his wedding to another man. A unanimous Washington Supreme Court found that the florist, Barronelle Stutzman, violated the Washington Law Against Discrimination, a state civil rights law.
Arlene’s Flowers v. State of Washington was put on hold while the Supreme Court considered the case of Colorado baker Jack Phillips, who would not create a wedding cake for a gay couple.
The cases are similar, but the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission on a fact- specific finding: that commission members had been unfairly hostile to Phillips’ religious justifications for his actions.
Only the justices know the behind-the-scenes discussions that led the court to take the off-ramp and get seven votes for a narrow decision in the case, which centered on the commission’s actions rather than the constitutional questions presented.
The Supreme Court has three choices as to Arlene’s Flowers: grant the petition for the term that begins in October; decline the case and leave in place the Washington Supreme Court opinion, which is similar to those in other states with laws that protect on the basis of sexual orientation; or send it back to the state court with instructions to rehear the case in light of the Masterpiece decision.
Accepting the case would imply that at least one side of the ideologically divided court is confident it would prevail on the question of whether a business owner’s religious or free speech rights trumps state anti-discrimination laws.
Declining the case would leave the status quo in place. And remanding it to the Washington court would buy more time for it and other courts to weigh in. There are many lawsuits across the country concerning wedding vendors – photographers, videographers, calligraphers among them – who don’t want to participate in a same-sex marriage.
Washington Attorney General Bob Ferguson has asked the Supreme Court to simply decline the case, and in a statement this week said the Masterpiece decision would have no effect on his case.
“The high court’s ruling specifically relies on several items that are not present in our case,” Ferguson said. “We are confident Washington courts showed no such (religious) hostility.”
Kristen Waggoner, of Alliance Defending Freedom, who represented Phillips, is also the attorney for Stutzman. She said in a brief filed Wednesday that the court should “at a minimum” send the case back to the Washington court. Ferguson and the state, she said, have shown hostility, filing suit both against Stutzman personally as well as against her business. “She stands to lose everything,” Waggoner said.
Ferguson responded that he asked the court for $1 in costs and fees, and it also imposed a “modest” $1,000 penalty for violating the law.
There is little dispute about the facts of the case. Stutzman had counted Robert Ingersoll as a customer for nearly a decade when he came in one day in 2013 and said he wanted to talk about flowers for his wedding to his longtime companion, Curt Freed. Stutzman said she held his hand and said she had to decline his request because of her “relationship with Jesus Christ.”
“I truly want the best for my friend,” Stutzman wrote in a letter to Ferguson in 2015. “I’ve also employed and served many members of the LGBT community, and I will continue to do so regardless of what happens with this case.”
Ingersoll and Freed filed suit against Stutzman, as did the state.
In its decision, the Washington Supreme Court said it agreed with the couple’s assertion in a brief that “this case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.”
It added that public accommodation laws do more than guarantee access to goods and services.
“Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace,” the justices wrote. “Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.”
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