ABOVE: Barronelle Stutzman of Arlene’s Flowers is seeking an OK to refuse service to gay couples. Washington Blade file photo by Michael Key.
The U.S. Supreme Court on Monday announced that it has sent back for review to Washington State a lawsuit filed by an anti-gay florist seeking a First Amendment right to refuse service to same-sex weddings.
The court announced the decision in an orders list on Monday, which reflected decisions made on many petitions for certiorari considered at its conference last Thursday.
Although the Supreme Court granted certiorari and vacated the decision against her by the Washington Supreme Court, justices also remanded the case back to that body for reconsideration in light of the U.S. Supreme Court’s narrow decision for Colorado baker Jack Phillips in the Masterpiece Cakeshop lawsuit.
That means the U.S. Supreme Court won’t consider the judgment Barronelle Stutzman, the owner of Arlene’s Flowers, was seeking: A sweeping right under the First Amendment based on freedom of religion and freedom of speech to refuse to provide floral services for same-sex weddings.
Alliance Defending Freedom, the anti-LGBT legal group representing Arlene’s Flowers, nonetheless praised the action from the U.S. Supreme Court as a win.
Kristen Waggoner, the senior vice president of ADF’s U.S. legal division, said in a statement the U.S. Supreme Court “rightfully asked the Washington Supreme Court to reconsider Barronelle’s case in light of the Masterpiece Cakeshop decision.”
“In that ruling, the U.S. Supreme Court denounced government hostility toward the religious beliefs about marriage held by creative professionals like Jack and Barronelle,” Waggoner said. “The state of Washington, acting through its attorney general, has shown similar hostility here.”
The Washington Supreme Court ruled against Stutzman last year as a result of legal action brought against her by Washington Attorney General Bob Ferguson, who contended she violated the Washington Law Against Discrimination by declining to provide floral services for the same-sex wedding of Curt Freed and Robert Ingersoll. The decision upheld the ruling of the Benton County Superior Court, which found Stutzman violated the law and fined her $1,000.
Waggoner, who argued on Stutzman’s behalf before the Washington Supreme Court in 2016, insisted Stutzman “serves all customers,” but won’t create “custom art that expresses messages or celebrates events in conflict with her deeply held religious beliefs.”
“The Washington attorney general’s efforts to punish her because he dislikes her beliefs about marriage are as impermissible as Colorado’s attempt to punish Jack,” Waggoner said.
Waggoner said Ferguson didn’t prosecute a business that berated and discriminated against Christian customers with anti-abortion, anti-LGBT views, but in contrast pursued measures to punish Stutzman for refusing to provide floral services for a same-sex wedding.
Ferguson said in a statement “we expected this procedural step” from the U.S. Supreme Court in the aftermath of the Masterpiece Cakeshop decision.
“The Washington State Supreme Court now has the job of determining whether the U.S. Supreme Court ruling affects this case,” Ferguson said. “I am confident they will come to the same conclusion they did in their previous, unanimous ruling upholding the civil rights of same-sex couples in our state.”
Much like the Masterpiece Cakeshop decision, LGBT groups are split on the action from the U.S. Supreme Court in the Arlene’s Flowers case.
Praising the decision was Masen Davis, CEO of Freedom for All Americans, who pointed out the Supreme Court has now on two separate occasions declined to issue a sweeping ruling allowing anti-LGBT discrimination in the name of “religious freedom.”
“Opponents of LGBTQ equality have asked the Supreme Court for a constitutional right to discriminate against LGBTQ people, and the Court has refused to do so on two separate occasions – first in Masterpiece, and now in Arlene’s Flowers,” Davis said. “Earlier this month, the Supreme Court reaffirmed our nation’s longstanding promise of equal opportunity for all, making clear that all business owners and all customers should be treated with respect.”
Jennifer Pizer, senior counsel and law and policy director at Lambda Legal, had a different take and called the Supreme Court’s decision “immensely frustrating and disappointing.”
“Just as in the Masterpiece Cakeshop case decided three weeks ago, the Supreme Court should simply have reaffirmed longstanding constitutional principles that freedom of religion is not a license to discriminate,” Pizer said. “Laws requiring businesses to be open to all do not conflict with the Constitution. It is past time to put to rest these proliferating attempts to undermine the civil rights of LGBT people in the name of religion.”
Technically, the Washington Supreme Court could rule in Stutzman’s favor upon reconsideration, but the Supreme Court directed reconsideration in light of the Masterpiece Cakeshop decision, which was a narrow ruling for Phillips on the grounds the Colorado Civil Rights Commission didn’t respect his religious views when considering his case.
Based on that, it’s hard to see how the Washington Supreme Court could issue a sweeping decision enabling anti-LGBT discrimination in the name of “religious freedom” under those instructions. In fact, an Arizona state court in the aftermath of the Masterpiece Cakeshop recently drew on the decision to uphold an LGBT non-discrimination law in Phoenix, rather than undercut it.
Representing the same-sex couple in the case was the American Civil Liberties Union, which asserted there’s no expectation the Washington Supreme Court would issue any sweeping decision for Arlene’s Flowers.
James Esseks, director of ACLU’s LGBT and HIV Project, said in a statement he doesn’t expect any new outcome from the Washington Supreme Court undermining LGBT rights.
“To be clear, the court made no indication the lower courts ruled incorrectly and made no decision on the case’s merits,” Esseks said. “We are confident that the Washington State Supreme Court will rule once again in favor of the same-sex couple, and reaffirm its decision that no business has a right to discriminate.”