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
Source:
Tri-City Herald
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.
john smith “If I have a sincere religious belief and the discipline to follow it, I’ll do so and the law can punish me if it likes.”
Right now, ‘civil disobedience’ is the only thing that will save us from this authoritarianism that has once again and eternally raised it’s ugly head. The new God of the State needs our cooperation; does it not?
Karen S. “At at the same time, I acknowledge that I oppose legalizing polygamy. I don’t care if people call themselves “sister wives”, I just don’t want to legalize it and give benefits.”
Does anyone question why married people even get benefits in the first place? Why are married people being ‘rewarded’ for being married? Approx 26% of our population is single. Why are they treated as 2nd class citizens? Either remove married benefits or give them to everyone.
I tell you guys what. If I have a sincere religious belief and the discipline to follow it, I’ll do so and the law can punish me if it likes. But that’s what religious beliefs are all about. Maybe somebody in the West still has them?
I always find this story odd because a lot of florists are gay.
Personally, I would have no problem providing services for a gay wedding. In fact, I would have a lovely time.
At at the same time, I acknowledge that I oppose legalizing polygamy. I don’t care if people call themselves “sister wives”, I just don’t want to legalize it and give benefits. It is not an environmentally sound practice because it leads to vast quantities of children in a single family that take up a large share of resources. It is mathematically unsound if a limited number of males take up a disproportionately large number of females, and it leaves to the tragedy of the “lost boys”, the young males without influence who are pushed out on the street where polygamy is concentrated. And it’s also anti-woman for women to be brainwashed into thinking God wants their husband to sleep with other women, that they should be content with a fraction of a spouse. Studies show polygamous wives are more unhappy and stressed than monogamous ones, obviously.
So although I support gay marriage, I oppose polygamy. So, but for the grace of God, go I in cases such as these. I would dig in my heels at supporting such an anti-woman establishment, and would want to protest. It would bother me if business owners could be forced to support polygamy.
Another issue is that there have been cases where people voted against gay marriage, but they were overturned. This illustrates that the majority of people, at least in some states, still oppose gay marriage. It is unrealistic to expect them to suddenly abandon their beliefs on the matter.
I suppose this means that no business has the right to refuse service to anyone, for any reason. That includes an ultra Liberal florist being forced to serve an Anne Coulter or Rush Limbaugh event.
The rights of business owners balanced against the rights of customers will have to be determined in the courts. I’m honestly torn. I don’t want to have gays denied service in a restaurant, nor do I want business owners forced to participate in their religious ceremony against their will. I would want everyone who participated in my own wedding to do so willingly, and with joy. Who wants to eat a cake that was baked against the baker’s will? Would it be a reasonable accommodation to supply a plain baked cake or generic floral arrangement available for sale pre-made? Customers could separately buy cake toppers.
It will all boil down to their right to protest, artistic expression, and religious freedom. Would it be better for businesses to decide how they want to run their business, and let customers decide? Or would that just lead to harassment, such as when the pizza place was run out of business when the owner’s daughter answered a purely hypothetical question by an out of town journalist about gay marriage?
Two English gentlemen of the old school were discussing old acquaintances one evening in their London club.
“What,” asked one, “ever became of old Cholmondeley?”
“Why, didn’t you hear? Cholmondeley went to Africa on a game hunt, and, by Jove, the chap took up with an ape!”
“An ape? Is the old boy queer?”
“Heavens, no! It was a female. “
Raise your hand if you laughed at this joke.
I do love it when David posts on homosexuality.
His own words are so damning to his positions.
You’re in for a treat if you haven’t yet read his ideas about voting rights!
L’Observer – more people in the world think the way David does than the way you do. You really are an outlier.
More Than 1,000 Laws Benefit Married People and there are 100,000,000 unmarried in the U.S. Should they not get the same first class treatment? Or get the government out of marriage altogether?
Now It’s Really Time for Unmarried Equality
http://www.unmarried.org/featured/now-its-really-time-for-unmarried-equality/
“In the U.S., 27 percent of all households are comprised of people who live alone – a number that has been increasing fairly steadily for decades. In Finland, the comparable statistic is an astonishing 42 percent. No other household type is as commonplace in that country.”
Finland is the 2nd happiest place on earth according to Forbes magazine. Nah…can’t be connection! LOL
Rand Paul: Government Should Get Out of the Marriage Business Altogether
http://time.com/3939374/rand-paul-gay-marriage-supreme-court/
This article was ignored by mass media.
Sorry about the video, I didn’t actually watch it! It’s a little crude even for my taste, but informative. :).
Paul C. Schultze “ou have every right to choose the ethnicity you want to be.” I would add that you can choose whatever gender, age, or disability you like as well.
For tax purposes I’m a Native American
For employment & higher education purposes I’m an “affirmative action/positive discrimination” black female.
For buying a home I’m white AND married
For using a restroom in Washington state I’m sans gender.
For parking I’m disabled
For fame I’m a 52 year old transgender 6 year old.
52 Year Old Man Becomes A Transgender 6 Year Old Girl ft. Gina Darling
https://www.youtube.com/watch?v=lEL9vow3OYk
You can’t make this sh*t up!!
Hildegard – some time back a woman won a discrimination case because she claimed the discriminated against her for being black. A couple of years later, she won a similar discrimination claim, however, now she was white.
First, the state ought to get out of the whole marriage business and just write up a legal document. Make it contractual, make it like any business partnership, end of story.
Under commerce if your doors are open to the public – meaning you are not a private club – outside of no shoes, no shirt, no business you must serve the consumer who walks into your shop with legal fiat to trade.
NOW, if they wanted to be exclusive and open to the public then they should have had two things going on.
1. Customer off the street walks in, wants to buy some flowers/plant on the shelf, picks up their item, pays for it and then they are on their way.
2. Register as a member of a private club. Once registration is approved the member now has access to a designer for a particular special event.
It’s like a fence, makes good neighbors. Anyone who thinks differently or believes such private clubs are a form of discrimination should get up off their chairs right now and start marching in the streets demanding public housing be erected in all gated communities in places like Beverly Hills, Greenwich, Bel Air, Kenilworth or any other exclusive wealthy enclave in the US.
If you want to take it up a notch and be really just and fair the US should cut off all business and funding to Saudi Arabia and Israel until they change their disseminating ways.
Fair is fair, right?
Paul
You may be right. The obstructionist Republican senate has no moral compass, no scruples whatsoever. And while Mitch McConnell demanded a vote in 2005 on Alito and Roberts, now he thinks it would be fine to obstruct. Unlike Justice Scalia who stood his ground, Republicans in the senate stand only on politics. Evidently it’s all they have.
President Sanders will appoint the next justice, then. And the newly Democratic majority in the senate will confirm. Or President HR Clinton. Or President Biden. Take your pick.
phillyT – if it is President Sanders, it will not be Barak Obama who is nominated. Maybe Joe Biden? You don’t need a law degree to be a justice.