By Darren Smith, Weekend Contributor
In April 2013 our host published an article featuring Washington State Attorney General Bob Ferguson had sued Barronelle Stutzman, the owner of Arlene’s Flowers and Gifts after she had refused to provide flowers for a gay wedding.
Washington’s consumer protection act bars discrimination on the basis of sexual orientation AG Ferguson sought a $2000 penalty for each violation and to end the business’ allegedly discriminatory practices. The case garnered considerable attention in both the state and nationally in which the religious rights of business owners do not necessarily comport in some cases with antidiscrimination statutes which require equal services be provided for all customers.
After the defendant received an unfavorable ruling at the Superior Court level, her case advanced through the appellate system and now is before the state Supreme Court.
The foundation for the case began in 2013 after Washington voters permitted same-sex marriage through Referendum 74. Several months following the vote the couple, Robert Ingersoll and Curt Freed, announced their engagement and went to Stutzman’s shop to purchase some flowers for the ceremony. Stutzman refuse to sell the couple a flower arrangement claiming that doing so violated her relationship with Jesus Christ and her Southern Baptist beliefs.
Atty. Gen. Ferguson’s office sued in April of that same year after first sending Stutzman notice requesting her compliance with state law. Ingersoll and Freed also filed suit.
Stutzman’s counsel argue that she refused services not because of the couple’s sexual orientation, but because of her religious views pertaining to marriage. Furthermore, they argue that she has a right to free speech and the exercise of religion.
In a 60 page decision, Superior Court Judge Ekstrom sided with the state and the plaintiff couple, ruling:
for over 135 years, the Supreme Court of the United States has held that laws may prohibit religiously motivated action, as opposed to belief. In trade and commerce, and more particularly when seeking to prevent discrimination in public accommodations, the courts have confirmed the power of the legislative branch to prohibit conduct it deems discriminatory, even where the motivation for that conduct is grounded in religious belief.”
In its Reply Brief to the Washington State Supreme Court, Kristin Waggoner, John Connelly, George Ahrend, and Alicia Berry representing Arlene’s Flowers, seem to have taken a different approach than what was argued at the Superior Court level. Counsel now argues that Mrs. Stutzman’s floral designs are artistic expression — thus protected under the First Amendment.
In its introduction Mrs. Stutzman does not claim “if an activity is expressive, the government cannot regulate it at all.” She merely asks to have her constitutional rights to free speech and free exercise accounted for when the court construes and applies Washington laws against discrimination and the consumer protection act. Public accommodation laws are not exempt from this rule. The US Supreme Court has struck down the application of public accommodation laws apply to expressive activity on First Amendment grounds, despite claims of sexual orientation discrimination, they argue as citing Scouts of Am. V. Dale and Hurley, v. Irish-am. Gay, Lesbian & Bisexual Grp. of Boston.
Mrs. Stutzman proffers the state agrees with what it claims to be the trial court’s “extreme position” that there can never be a “free speech exception (be it creative, artistic, or otherwise) to antidiscrimination laws [that] apply to public accommodations.” In keeping with Hurley and Dale, not to mention the Washington Supreme Court’s own free speech and free exercise precedent, Stutzman believes the court should hold that the WLAD and CPA to not require her to create expression that violates her faith and artistic integrity.
Counsel continues, “such a ruling is particularly appropriate under the circumstances of this case, where there is no evidence of animus based on sexual orientation. For over nine years Mrs. Stutzman designed floral arrangements, making events in Messrs. Ingersoll’s and Freed’s life together, knowing they identified as gay. She only declined the commission from Mr. Ingersoll when his request would have required her to create expression that violated her beliefs. Mrs. Stutzman’s decision was not irrational or invidious, but ever reason one based on her sincere religious convictions about marriage that are shared by millions of people throughout the world. She conveyed her decision to Mr. Ingersoll in a kind and compassionate way. Afterward, they continued discussing his wedding plans and they hugged before parting ways. The case boils down to this question: is there room where a tolerant, diverse, and freedom loving society for people with different views about the nature of marriage to establish their ‘religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community’?” (Citing Burwell v. Hobby Lobby Stores, Inc.)
Stutzman believes “that the trial courts and Respondant’s view — that there can never be a free speech exception to public accommodation laws — endangers everyone. If correct, she argues, “then the consciousness of all citizens are fair game for the government. No longer could a print shop owner decline to print shirts adorned with messages promoting marriage between one man and one woman for a religious rally. Nor could an atheist painter decline to paint a mural celebrating the resurrection of Christ for a church. Indeed, no speaker could exercise static or moral judgments about what projects to take on where customer claims the decision infringes on his or her rights under the WLAD. The freedoms Mrs. Stutzman seeks to vindicate provide an essential bulwark against government encroachment on all citizens’ consciences.”
While I can certainly agree with Mrs. Stutzman on the notion of the state having no interest in compelling the expression of free speech by an individual citizen, I also believe that Mrs. Stutzman cannot cloak herself from providing equal accommodation to all consumers as mandated by the consumer protection act under the rubric of artistic expression.
It is my belief that Mrs. Stutzman clearly violated Washington’s laws against discrimination and the consumer protection act by not providing a product or service that would’ve been otherwise be made available to another couple simply on the basis of having a sexual orientation that she approves of. In fact, Mrs. Stutzman as a condition of being granted a business license and provided with the ability to lawfully sell goods or services under state law, accepted her responsibility to adhere to all of the applicable statutes and administrative codes regulating commerce within the jurisdiction of the state.
There are provisions however in Washington state law regarding the providing of marriage services to homosexual couples. Under the original initiative, the law allows clergy in religious institutions such as churches to refuse to engage in gay marriages as it might violate the tenants and sanctity of their religion. However this is not applicable in the case of Arlene’s flowers and gifts. Ms. Stutzman’s business is under the same requirements of the antidiscrimination laws as is a barbershop, a sheet-metal factory, or any other form of commerce. Mrs. Stutzman, using the barbershop analogy, states that a barber’s trimming and design of her customer’s aesthetics is an artistic expression for which the barber can exempt herself from the requirements of the consumer protection act. It would not be considered reasonable by the courts and most members of society in general for a barbershop owner to decline to serve whites, gay people, the elderly, or religious minorities. Yet, Mrs. Stutzman believes and had a business practice that discriminated based on the customer, not the product.
I believe at the end of the day the state’s argument is going to prevail at the Supreme Court and that this matter is certainly going to garner attention here and elsewhere as society moves towards a greater integration and normalization of gay marriage.
By Darren Smith
Washington Supreme Court
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.