ABOVE: Barronelle Stutzman of Arlene’s Flowers is seeking an OK to refuse service to gay couples. Washington Blade file photo by Michael Key.
After obtaining a perfunctory decision last year in her favor, the owner of Arlene’s Flowers in Washington State is back before the U.S. Supreme Court with a renewed call for a First Amendment ruling allowing her to refuse service to same-sex couples seeking floral arrangements for their weddings.
In her 41-page petition for certiorari, Baronelle Stutzman alleges the Washington State Supreme Court ignored case law in favor of religious freedom when it ruled—now twice—she violated the Washington Law Against Discrimination by refusing to provide floral arrangements in 2013 for a same-sex wedding.
“In Obergefell’s wake, government officials continue to disregard civility and punish ‘reasonable and sincere’ people of faith like Barronelle because of their beliefs about marriage,” the petition says. “This violates the First Amendment’s promise that citizens are free ‘to differ as to things’ such as marriage and religion ‘that touch the heart of the existing order.’ Unless this court intervenes, that freedom will be gone, and people like Barronelle will be marginalized in their own communities.”
Representing Stutzman is the anti-LGBT legal firm Alliance Defending Freedom, which has been designated a hate group by the Southern Poverty Law Center. ADF filed the petition Wednesday shortly before the Supreme Court will determine what cases it will hear for its upcoming term at its annual “long conference.”
Kristen Waggoner, senior vice president of the legal division at Alliance Defending Freedom, said in a statement Stutzman serves all people, but cannot “take part in, or create custom floral arrangements celebrating, sacred events that violate her religious beliefs.”
“Because of this, the Washington Supreme Court upheld a ruling that threatens Barronelle with personal and professional ruin,” Waggoner said. “Regardless of what one believes about marriage, no creative professional should be forced to create art or participate in a ceremony that violates their core convictions. That’s why we have taken Barronelle’s case back to the U.S. Supreme Court.”
The petition for certiorari presents two questions before the Supreme Court: 1) Whether the State violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and 2) Whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
The first time the Washington State Supreme Court ruled against Stutzman was in 2017 as a result of litigation brought by Washington State Attorney General Bob Ferguson. The court unanimously found Arlene’s Flowers violated the state law by refusing to make floral arrangements for Robert Ingersoll and Curt Freed, a same-sex couple. Stutzman was fined $1,000.
According to Alliance Defending Freedom, Stutzman and Ingersoll embraced after she said she couldn’t facilitate his wedding and he left the establishment on good terms. Stutzman had also provided him the names of three nearby florists whom she said would provide floral arrangements for same-sex weddings, according to ADF.
But Stutzman wasn’t done after losing in state court and filed a petition for review and took it up with the U.S. Supreme Court. Justices at the same time were considering the Masterpiece Cakeshop case in which Colorado baker Jack Phillips was seeking a First Amendment right to refuse to make custom-made wedding cakes for same-sex couples.
In the Masterpiece Cakeshop case, the Supreme Court ultimately found the Colorado Civil Rights Commission held anti-religion bias when penalizing Phillips and vacated the decision against him, giving him a limited ruling in his favor.
Shortly afterward, the U.S. Supreme Court vacated and remanded the Washington State Supreme Court’s decision in Arlene’s Flowers, instructing the lower court to review the case again under the principles of the Masterpiece Cakeshop decision.
The Washington State Supreme Court reviewed the case again and reached the same conclusion: Arlene’s Flowers was in violation of the Washington Law Against Discrimination.
But in her new petition before the U.S. Supreme Court, Stutzman argues the Washington State Supreme Court ignored the Masterpiece Cakeshop in ruling against her the second time.
Contending the state attorney general had clear anti-religion bias in pursuing the case against her, Stutzman points out Ferguson declined to prosecute a gay coffee-shop owner in a different situation “who profanely ejected a group of Christians with some of the vilest invective imaginable.”
“Only one thing explains this blatant difference in treatment and hostile rhetoric — religious animosity,” the petition says. “The attorney general has left no doubt that Barronelle is ‘less than fully welcome’ in the business community…and that has resulted in her enduring death threats and public ridicule. Hounding Barronelle based on her ‘decent and honorable’ religious beliefs about marriage…is exactly the sort of hostility Masterpiece forbids.”
The petition argues the Stutzman’s creation of floral arrangements constitutes a speech act as protected under the First Amendment because “[l]ike all artists, Barronelle speaks through her custom creations.” The petition argues Washington law violates her freedom of religion as defined under the First Amendment because “[a]s a Christian, Barronelle sincerely believes she must use her artistic skills and business to honor God.”
Alliance Defending Freedom sets a very low bar for anti-religion bias is present, saying that was with the Colorado Civil Rights Commission in the Masterpiece Cakeshop case.
“To prevail on a free-exercise hostility claim, Barronelle need not prove that the Attorney General acted solely or even predominantly out of animus toward her religious beliefs,” the petition says, “She need only show a ‘slight suspicion’ that the attorney general’s actions stemmed from such animosity…and she has shown far more here.”
It remains to be seen whether the Supreme Court will grant review of Stutzman’s case the second time around. If it does, it will likely be because of the confirmation of U.S. Associate Justice Brett Kavanaugh. After all, the Supreme Court vacated and remanded her case on summary disposition in June of last year, but that was before the confirmation of Kavanaugh.
Jennifer Pizer, law and policy director for Lambda Legal, said the new petition constitutes an “unsurprising recycling of arguments” Alliance Defending Freedom made in earlier petitions before the Supreme Court, such as the notion that “refusals to serve gay customers are not discrimination if done with an apology, and that arranging flowers for a wedding is actually ‘participating’ in the wedding.”
“But the difference between vendors and the wedding party and guests is obvious to most people,” Pizer said. “The threat to civil rights laws should be, too. Because if flowers, why not the food, the custom clothing, a limo to the venue? These cakes and flowers cases are attempting to pry open a door to marketplace discrimination that the Supreme Court has kept firmly closed so far.”
Pizer pointed to landmark civil rights decisions in the federal courts, such as Newman v. Piggie Park Enterprises, that found religious freedom cannot be an excuse for business owners to engage in racial discrimination at their establishments.
“More than half a century ago, the court rejected as ‘patently frivolous’ the notion that owners’ religious beliefs free businesses to discriminate against customers,” Pizer said. “The court referenced that case just last year in its Masterpiece Cakeshop decision, in which it did not embrace these lawyers’ beliefs-excuse-discrimination arguments. There are some challenging constitutional questions in the religious liberty and free speech areas of law, but Arlene’s Flowers should not be seen as presenting any of them.”
The Arlene’s Flowers petition isn’t the only one pending before the Supreme Court seeking a First Amendment right to discriminate against LGBT people. The Becket Fund for Religious Liberty has filed a petition on behalf of Catholic Foster Services in Philadelphia, which seeks to refuse to place children in LGBT homes despite an agreement it made to abide by non-discrimination principles in its contract with the City of Philadelphia.
The petitions reach the Supreme Court as justices are set on Oct. 8 to hear oral arguments in cases that will determined whether Title VII of the Civil Rights Act of 1964, which bars discrimination in the workplace on the basis of sex, also applies to cases of anti-LGBT discrimination. The rulings will have a profound impact on LGBT people both in the workplace as well as health care, housing and education settings.