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.
The very minute you open the door to this religious bigotry, we are back at the Woolworths lunch counters and it’s 1960.
The rule should be very simple. If you operate a business that is open to the public, and you take advantage of all the benefits our civilized society provides you (safe roads, police protection, access to courts, fire protection, the ability to buy insurance, etc), then you have to sell to everyone. Whether you’re christian, muslim, jew, satanist, pastafarian. If you don’t want to serve the public, go do something else, or go move somewhere else.
It is my personal belief that this should apply to pharmacies, hospitals, and clinics as well.
Justice Holmes
Isn’t there a definable difference between denial of entry and/or purchase of displayed or cataloged items v.s. the request to provide an item outside of a providers willingness.
If it isn’t in the typical catalogue, can it be demanded?
Justice Holmes – let us say, just for the sake of argument, that you are a Satanist artist. The black Roman Catholic bishop of your area wants you to paint a mural of the Blessed Virgin on the exterior wall of the cathedral. You refuse. Have exercised your religious rights (Satanism is a recognized religion) or are you discriminating because he is a Roman Catholic and happens to be black?
He sues for your tighty-whities. What is your defense?
Businesses can post all the signs they want but they don’t have the right to discriminate, for example, on the basis of race. Let’s say a Muslim baker decides that women cannot enter his bakery or that a coffee shop makes women stand out side. Is that ok? I think not. If you want to be in business with the public, you must engage with all of the public. We have resolved that issue.
Justice Holmes – as an artist I can sell or not sell my art to anyone I want. Would you agree to that? I know that Hopis do not allow whites to observe their traditional dances. Surely, that is discrimination. Can they be forced to open the viewing of their traditional dances?
Most businesses have a little sign saying they have the right to refuse business to anyone. What is the difference in that and this instance. She was willing to lose money because of her decision.
I think the artistic expression argument is creative and may have traction. If a Rothko is considered art, a floral decoration is art. And there are thousands of classical paintings of floral decorations.
I guess I won’t stop and smell the roses around Moses.
Jonathan: I did not know that Moses was gay.
By no measure shall artistic talents [which flower arrangements are] be used to further the performance of an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act [which sexual relations outside that of married male and female are]
The idea that someones sexuality is a protected class is idiotic.
Personally I think a business should have the right to refuse service to anyone. Only exceptions being fire/police/hospital. Not to say there isnt room for discussion on that. But giving someone legal rights to force someone to accept their sexual choices? Insanity
The florist needs to soften their heart. They are hardening them in the presence of God in the homosexual being like the Pharaoh who saw God in Moses.
The florist needs to soften their hearts. They are hardening them in the presence of God in the homosexual being like the Pharaoh who saw God in Moses.
I agree with Justice Holmes in his comment above. On the other hand I would not want my workers to have to paint the top of a wedding cake with some sort of gay sex act thing or somesuch. There are limits.
Something like: “Bent All The Way” would be ok. In Ferguson I would not want to have to post something like: “Only White Lives Matter”. I would like to send a cake to Loretta Lynch which says that she is a total jerk for failing to send in the National Guard when the No True Bill was published on Officer Wilson and Al Sharptongue’s mob came in and looted and burned the stores out in Ferguson and Dellwood. As for Bible Thumpers, they should not thump a cake or they will be expected to eat it too.
Back in the day when I was a stained glass artist, I refused to do stuff for people that gave me the impression they would give me a hard time when the project was finished and the last third was due, sometimes ten or more thousand dollars. In other words if I did not like the client, I refused my artistic/artisanal services. That is something an independent contractor, artist, artisan, must have.
However, openly discriminating because the clients are gay does not fall into that area of privilege. If I remember correctly, the florist was ok with selling the gays flowers but not for their wedding. So this has nothing to do with independent business person, artist, artisan, etc rights and only to do with bigotry. The law states that law abiding gays be afforded the same rights and privileges as everyone else. The bottom line is this florist is in the group with whom we should discriminate, the bible thumpers.
At what point does expression become repugnant enough to a person’s religious belief that the belief may hold sway?
Just because the law (up through SCOTUS) declares the expression a Constitutional right doesn’t make it right. See how many previous SCOTUS decisions have been changed or essentially rendered moot by subsequent decisions.
Our justice system is, by its nature, adversarial. So, one must oppose the other in a form of dialectic debate.
The florist essentially says the State went too far. Personally I believe the reasoning favorable to gay marriage was flawed in its essentials—the means used redefined marriage in a manner which may well lead to practices intolerable even by today’s progressive standards.
Could a florist (or confectioner) be compelled to provide a thematic arrangement for a local Planned Parenthood’s celebration of its 1000th abortion? Think of two dolls on top of the cake, or arrangement, placed in a manner of a D&C procedure. Is this “scene” a red herring? I think not. If that scenario isn’t shocking, then go a little farther. How about a scaled bucket with scaled down rubberized baby parts?
I’m just glad that we’re only talking about two men and a floral arrangement at this point.
JT and the ratpack here who work for him censor out and delete comments and thence commentors who disagree with JT. Bye bye Miss American Pie.
I’m always a little baffled why religion is so concerned with what people other than themselves do. If you are against gay marriage, don’t marry a gay person. Other than that, gay marriage is none of your business.
As to a business… A gun store owner vigorously maintains the he only sells guns and is not responsible for what the customer does with them after the purchase, that he is not participating in the shooting. That makes more sense than the flower shop who seems to think that they are participating in a wedding just because they are selling flowers that are used to decorate the wedding in question. The flowers are not even an integral part of the wedding, are not central to it, play no role in it and have no meaning in the performance of the wedding. Thery are nothing more than decoration, and yet the silly religious florist thinks that the act of selling that decoration is somehow participating in a religious act. It is a combination of ridiculous self centeredness, self importance, hubris and stupidity.
What Justice Holmes said. Pretty damn simple really.
Take out the word “gay” and insert the word “black” and few would dispute the obligation to provide the service. If one is unable to dealt with the public one should not engage in business.
For me the issue is not complex. The patrons of this flower shop can reach that shop via streets whose construction and maintenance were paid for by all and that includes the couple that wanted flowers for their wedding. I am quite certain that the shop receive additional services paid for by all taxpayers. Ergo you must serve all taxpayers that make your business possible as long as their requested purchases are legal.
How USSA Corporation ever made it through the first 240 years without homosexual nuptials, we’ll never know. Frankly, it is a crime against humanity, everywhere people are denied this basic human right of homosexual nuptials. It is akin to denying the breath of life itself! It is just another form of homosexual genocide.
America must constantly fight for eternity, spending its fiat tax debt, and shed its blood, to safely bring homosexual nuptials to the Muslim world, one nation at a time! Every Muslim nation we enter, the first thing they cry out for is: “When can our men and women wed their own gender? When can we TRULY be free?” Every Musim nation we conquer and free from the bondage of no homosexual nuptials, is a win for humanity!
Onward USSA solidiers!
All I can say is, I am sure as hell glad that I do not live in Oregon.