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.
Dear Paul my name is Kori Miller is there anyway you can contact me I will leave my email and phone # Thank you very much I have also just recently discovered that when my brother filed in probate he filed as a deprived benificary only ,what he is failing to let the courts know is that before filing he concealed the valid trust amendments that demoted him as the sole successor and he. Went and made himself the sole successor impersonating and put all assets into his name,then filed as the benificary on another benificary (me)”concealing to the court his true fudicary position and who had the assets(him)not me like he said in his papers to the court,then 2yrs into litigation him and his attorney petition the court to appoint him sole successor.how do I show his criminal action that him and the attorney have been doing during this whole case, thank you once again I am still pro per and he is trying to put in his final accounting I need to stop him and exploite him now to the court . Kori Miller
Paul C. Schulte……….should be very interesting to see who Obama nominates, and the Senate Republicans’ response. “Borking”, so proudly introduced by Biden, Leahy and co. C. 30 years ago, can cut both ways.
Tom Nash – I think they are going to put continuous holds on the nomination until Obama is out of office.
Citizens United will stay alive. JT is for it. The Koch Brothers are for it. Same thing. The only thing which will defeat that case and that “Court” is Ebola.
It seems pretty clear with Scalia gone from the court that the balance is going to shift away from the conservatism of Alito-Scalia-Thomas back, at least to the center. Expect to see marriage equality affirmed, abortion rights affirmed, voting rights restored, and maybe if we’re lucky we’ll see Citizens United in the trash bin where it belongs.
phillyT – I would put even money that the Republicans keep an Obama appt off the court hoping for a Rep win. This means a lot of ties on the court for the rest of the year. Ties mean the court below rules. It is going to be an interesting year.
Equating blacks to homosexuals is actually insulting to blacks. Sexual ACTIVITY is always a choice, I don’t remember a person ever being able to chose their specific ethnic background. What a bunch of retards. Why do the homosexuals push their agenda on individuals that don’t wish to bow to their reprobate sexual activity? Because legally they can. How many flower shops or bakeries, etc…are there for them to chose from? If they can’t find one then maybe there is a hint – make one – if there is that much demand you should do quite well in your new gay business…hello – anybody out there? What a sick and pathetic people we have become – welcome to Sodom.
Scarecrow – you have every right to choose the ethnicity you want to be. We have had a couple of notorious case of that in the news in the last year. However, on those little forms that ask for your ethnicity, you have every right to choose the one you like the best. No one has the right to question you about it.
Correction to my previous comment; this is obviously about flowers not cakes..
Renegade: “Her business as a private citizen is her business. It is not essential to the community (if it were, there would be contractual provisions, no?).
Let the economy determine her business’s practices.” Agreed.
https://www.law.cornell.edu/wex/first_amendment
“Two clauses in the First Amendment guarantee freedom of religion. The establishment clause prohibits the government from passing legislation to establish an official religion or preferring one religion over another. It enforces the “separation of church and state.” Some governmental activity related to religion has been declared constitutional by the Supreme Court. For example, providing bus transportation for parochial school students and the enforcement of “BLUE LAWS” is not prohibited. The free exercise clause prohibits the government, in most instances, from interfering with a person’s practice of their religion.”
When the state can force a private business owner to provide goods or services against their religious convictions, the State has become the new religion. [Hmmmm…reminding me of…sounding a bit like….ummm..communism. Sorry, I digress!] Are we going to apply this same criteria to Muslims? Does The Constitution guarantee freedom of religion or freedom FROM religion?
Even if every logical, legal, and moral reason can be found to support forcing this woman to go against her conscience even ‘for her own good’ or for ‘the common good’ it’s still a violent act. She will just be one more individual sacrificed on the alter of the state and it will do nothing to further acceptance of gays and may in fact promote more discrimination and polarization. Is the gay couple not able to get flowers anywhere else?
As far as replacing “blacks’ with gays in this story? Which religion is it that would prevent a person from providing goods or services to blacks?
Sooo, she was honest and above board. If she had said she had too much work or couldn’t provide a specific arrangement, or just decided she and the store were on vacation and referred the folks to another, there would be no issue. Instead she spoke differently. She is a private citizen and isn’t her company to be treated as a “person” too? She and her enterprise are “licensed” (in one form or another) by the State and the Federal governments to provide services/products
As a former active duty surface warfare Naval Officer—commissioned, I would expect to be relieved if not discharged if I acted contrary to Federal law when exercising “civil” disobedience as I would not have been a civilian, and I served at the pleasure of the President (no matter the occupant of the office).
Now as clergy, I chose not to provide marriage services or participate in ordination of non-celebrate homosexuals (and non-celebrate unmarried heterosexuals).
At present, I am licensed by the State to perform marriages by virtue of my ordination and affiliation. And, I am not required to change my position, nor can I be sued to provide. Providing these services is my option in-spite of the principle of licensing.
If the law changes, then I would defer to civilian magistrates or anyother so empowered authority. But, I would not provide an ecclesiastical blessing on the union either.
Now to reiterate, I am licensed by the State to provide a service and yet not required to provide marriage services TO ANYONE. At least for now.
I can be open about my position, but she is (others are?) required to “adjust” their speech to avoid the law.
It should be noted that civil rights laws rely on an economic “boot.” For example, there are legal ways not to rent to any particular class by staying within certain gaps between the laws’ definitions/provisions. Certain institutions are required to comply to certain laws because they receive Federal funds. The requirements cease when funding stops. Look at FHA and VA housing mortgage requirements. I can be the most racist guy around, but if I have cash I can buy any house I want. Or another individual can privately lend me the money. On another take, the historic lunch counter issue was broken via economic boycott not govt edict.
Her business as a private citizen is her business. It is not essential to the community (if it were, there would be contractual provisions, no?).
Let the economy determine her business’s practices.
I won’t be surprised if invectives or ad hominems are included in comments. Voltaire’s sentiments apply.
To interfere with the running of a business, is to usurp property rights, the very foundation of freedom: anti-discrimination laws – when applied to a business – in effect, turn the owner of the business into an employee of the state. Equally, when the state tells one to whom one must sell one’s house, one is compelled to renounce one’s property rights. The same applies to schools and universities, when they acquiesce in the matter of quotas and academic standards intended to accommodate the less intelligent.
Ash “I think it’s important to err on the side of freedom of expression and religion.” This is ironically where we’re at; to support the 1st amendment is now to “err on the side of freedom of expression and religion”.
I don’t see why the immoral practice of aborting partially to completely formed pre-born children is legal but the immoral practice of refusing to make a wedding cake for a gay couple is not. Is our entire civilization going to collapse if people are allowed to do immoral things? Well it hasn’t collapsed yet so I’m thinking the answer is NO.
A view from a UK Gay Activist
http://www.theguardian.com/uk-news/2016/feb/13/peter-tatchell-snubbed-students-free-speech-veteran-gay-rights-activist?CMP=twt_b-gdnnews
Peter Tatchell: snubbed by students for free speech stance
Veteran gay rights activist is soon to celebrate 50 years campaigning for equality. But now he is caught up in a row over ‘no-platforming’
That the man in question is Peter Tatchell – one of the country’s best-known gay rights campaigners, who next year celebrates his 50th year as an activist – is perhaps a mark of how fractured the debate on free speech and sexual politics has become.
In the emails, sent to the organisers of a talk at Canterbury Christ Church University on Monday on the topic of “re-radicalising queers”, Cowling refuses an invitation to speak unless Tatchell, who has also been invited, does not attend. In the emails she cites Tatchell’s signing of an open letter in the Observer last year in support of free speech and against the growing trend of universities to “no-platform” people, such as Germaine Greer, for holding views with which they disagree.
Cowling claims the letter supports the incitement of violence against transgender people. She also made an allegation against him of racism or of using racist language. Tatchell told the Observer that the incident was yet another example of “a witch-hunting, accusatory atmosphere” symptomatic of a decline in “open debate on some university campuses”.
One of the founding members of direct action group OutRage!, which caused a storm in the 1990s by outing establishment figures it claimed were homophobic in public and homosexual in private, Tatchell is used to being in the establishment firing line. But the original radical queer is now finding himself having to think long and hard about free speech.
In the recent furore over the Belfast bakery that refused to decorate a cake with a gay rights slogan, he stunned many by supporting the firm’s right to reject the customer’s order. Ashers bakery is appealing against a court decision that ruled it had discriminated against the customer by refusing to make a cake with the slogan “Support Same-Sex Marriage” because it went against their beliefs as Christians.
“If the Ashers verdict stands, it would mean a gay baker could be made to make cakes saying ‘I’m against gay marriage’,” said Tatchell. “A Muslim printer would have to publish the cartoons of Muhammad or a Jewish printer publish books of a Holocaust denier. So, much as I disagree with Ashers’ right to be homophobic, and I have spoken out against their anti-gay discrimination, they shouldn’t be forced to aid a political message they don’t agree with. I think it’s important to err on the side of freedom of expression and religion.
Paul
She gave the reason that she did not believe in their way of life. She is a bigot, a religious bigot or whatever. What business is it of hers whether or not they are gay or not? She is in the business of selling flowers. She was honest, but bigoted. She sold them flowers before, so she’s a hypocrite as well.
issac – I believe Scientology is a fraud. Does that make me a bigot? Or enlightened?
David
Yeah, there are a lot of things that could be solved by simply making them crimes, lots of equality issues that have caused problems could be avoided. Where would you stop when you give yourself the power to determine what is and what is not deserving of equal treatment under the law? Or better still in your world how would you punish the gays for breaking your laws? Is selling flowers to gays accommodating their sexual perversion? Will gays go straight because they can’t buy flowers or are jailed? Are you that ignorant of history’s lessons? Apparently so.
issac, what causes harm should be criminalized. Homosexuality causes harm. Foremost is the harm caused to those who engage in it. The median age of death for homosexuals is 42, more than 30 years less than the median age of a heterosexual married man (75). Homosexuals suffer more mental illness like depression and have much higher rates of suicide. They have higher rates of sexually transmitted diseases and suffer more from alcoholism and drug abuse.
Homosexuality has increased in the last decade that it has been legalized. One study showed that more than 18% of women in the age group of 16 – 34 experienced lesbian encounters. So yes, criminalizing homosexuality does serve to deter those who might otherwise be curious and make harmful decisions to engage in it.
Homosexuality also harms others in society. It has destroyed the institution of marriage by the fallacious claim of homosexuals being treated unequally, despite the fact that no test of homosexuality has ever been done to discriminate against homosexuals marrying. The truth is that thousands of homosexuals have always married throughout history for the purpose of having children and raising a family. Now every State is being forced to recognize gay marriage as equal to traditional marriage, despite the obvious differences between the two types of unions. When governments are forced to create law that is illogical, it breaks down the force and authority of government, leading to civil unrest as subjects of the government come to recognize it. Now homosexuals force businesses to subscribe to their perversion and lend artistic expression for it through flower arrangements, photography and baking cakes. Their latest assault on gender diversity is to eliminate gender specific bathrooms. Already in Washington State, it is illegal to keep a man out of the woman’s restroom. Homosexuality is a sexual disease in society, destroying the very fabric of civilization. It has caused untold number of leaders to abandon logic and embrace feelings and emotions as arbiters of truth. Enough is enough. Homosexuality should be criminalized again, just like it was only 13 years ago. The Supreme Court has made some mistakes that need to be reversed before it is too late.
I am so tired of these discrimination arguments. Sexuality is partly ingrained and partly developed by the choices we make. Twin studies prove this. I used to think we could allow for homosexuality in society as a privacy issue, but after observing cases like this one, I am convinced that homosexuality should be illegal. SCOTUS made the mistake in Lawrence v. Texas in 2003.
Nobody should be forced to violate their conscience. Nobody should be forced to accommodate sexual perversion. If the law still treated homosexuality as a crime, then none of this other foolishness would be going on.
Unless the legal system reverses itself, it has lost my respect. With Justice Scalia passing away now, there is less hope for our future.
FartinDog here: I agree.
This dog quite reading this Republican diatribe a while back. You have a so-called “blog” for comments and then censor out those folks (dogs) that you do not agree with.
The fact of the matter is that the florist openly discriminated against the gays. She stated that her religion or herself was against gay marriage therefor she would not sell the product to them. This is some distance from the freedom to sell or work for this or that person for artistic integrity or protection from someone you have a bad feeling will not pay. She is a bigot and the law defends the targets of her bigotry and not her bigotry.
issac – she is not a bigot. She sold flowers to both of them before, she is supportive of their wedding plans, however her religion is against gay marriages.
Renegade
I think the answer is that you get to decide what your business is, what you make, what you sell, etc. but you can’t decide who gets to buy it if you are open to public business.
So if you don’t sell bacon in your store, people can’t force you to. But if you sell tuna salad, anyone can buy it. If you make flower arrangements, anyone can buy them.
This just in:
Multiple news sources are reporting that Justice Scalia has died at a resort in west Texas. He was 79.
But do you have provide something that isn’t in your store, list of products, portfolio, etc?
Is one to be required to purchase or produce that which is not in one’s normal course of business? Certain items are purchased in bulk and afforded lower per item cost? A single unit may be substantially more. Is one required to provide? Is it discrimination if a higher cost is to be paid by the buyer. How about not wanting to take the extra effort? Divert time?
The establishment is not denying entry or service within its established parameters as defined by products offered.