On June 25, the Supreme Court sent the case of a florist who refused, on religious grounds, to provide flowers for a same-sex wedding—and was found to have violated her state’s antidiscrimination law as a result—back to the Washington Supreme Court to reconsider its decision in light of Masterpiece Cakeshop v. Colorado Civil Rights Commission. In Arlene’s Flowers, Inc. v. Washington, the Court granted the petition for review, vacated the state high court’s judgment, and remanded.
Washington Supreme Court decision. In February 2017, the state supreme court had found in State of Washington v. Arlene’s Flowers, Inc. that the business’s refusal to sell wedding flowers to a same-sex couple was not protected by the state or federal constitutions. It was undisputed that the florist, who had sold flowers to the couple for years, is a Southern Baptist and her sincerely held religious beliefs include that marriage can exist only between one man and one woman. She said she could not sell flowers for the wedding because of “her relationship with Jesus Christ” and providing the arrangements would be tantamount to endorsing marriage equality for same-sex couples. Deeply hurt, one of the plaintiffs posted on Facebook that his favorite flower shop refused their business. The post drew media attention, resulting in offers of free flowers to the plaintiffs and threats against the defendant’s business.
The Washington Law Against Discrimination bars discrimination in “public … accommodation[s]” based on “sexual orientation.” The couple sued, as did the state attorney general’s office. The florist raised defenses, including that her actions were protected by constitutional guarantees of free exercise, free speech, and free association. Affirming judgment for the plaintiffs, the state high court explained, among other things, that the WLAD has no mandate to balance religious rights against rights of protected class members; the refusal to provide flowers did not express a message about the wedding, so was not protected speech; and the WLAD, as applied, did not violate her right to religious free exercise or to free association.
Masterpiece Cakeshop. Earlier this month, the U.S. Supreme Court decided Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which it found the Colorado civil rights commission violated the right of a cake shop owner/designer to the free exercise of religion by failing to consider, with the constitutionally required neutrality, his religious objections to creating a wedding cake for a same-sex wedding. The lack of neutrality was evident to the Court from commissioners’ comments disparaging the shop owner’s faith and likening it to the defense of slavery, and from the disparate treatment his case received compared to cases of other bakers objecting to making cakes with anti-gay messages. The 7-2 opinion was authored by Justice Kennedy.
Reversing the state court of appeals, the Supreme Court pointed out that our society has recognized that gay persons and gay couples cannot be treated as inferior, and “the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” Here, the Commission’s actions violated the cake shop owner’s constitutional rights. The majority explained that while Colorado law can protect gay persons in acquiring products and services on the same terms and conditions offered to other members of the public, the law must be applied in a manner that is neutral toward religion. The Commission’s treatment of the cake designer’s case showed elements of impermissible hostility toward the sincere religious beliefs motivating his objection to creating a cake celebrating a same-sex marriage.
Reaction. Following the Supreme Court’s order in Arlene’s Flowers, the Human Rights Commission, a national LGBTQ civil rights organization, released a statement: “The Supreme Court has simply asked the lower court to take another look at this case in light of their recent decision in Masterpiece, but they did not indicate there was anything wrong with the ruling,” said HRC Legal Director Sarah Warbelow.
“In Masterpiece, the Supreme Court found that the state of Colorado’s enforcement of its civil rights law was flawed due to perceived bias in the process; however, there is no indication that there were flaws in the application of civil rights law in Arlene’s Flowers. We view this decision as encouraging news that justice will prevail and the Washington State Supreme Court will again uphold the state’s non-discrimination laws ensuring LGBTQ people cannot be turned away from a business open to the public.”
Religious hostility? After Masterpiece was decided, UCLA law professor Eugene Volokh expressed some disappointment that the Supreme Court’s decision left almost all the “big questions” unresolved, including whether bakers have a First Amendment right to refuse to bake cakes for same-sex weddings, even if state law bans sexual orientation discrimination by such businesses. Volokh also posed a question echoed by others, pondering: “Does all this talk about government officials’ statements showing religious bias foreshadow the result in the so-called (rightly or wrongly) ‘Trump Travel Ban’ case, where the challengers are arguing that various statements by candidate Trump or President Trump show that the restrictions on travel from certain countries were motivated by religious hostility?”
However, on June 26, the High Court appeared less concerned about questions of “religious hostility” when it upheld the Trump administration’s third iteration of a travel ban in Trump v. Hawaii. In that case, one of the assertions by the challengers was that the primary basis for the ban was religious animus against Muslims. At the heart of the case was a series of statements made by President Trump and his advisersm both during the campaign and since the president took office. But the Court found that the issue was not whether to denounce Trump’s statements, but the significance of those statements in reviewing his presidential directive, “neutral on its face,” addressing a matter within the core of executive responsibility. In so doing, the Court said it must consider not just the statements of a particular president, but also the authority of the presidency itself.
So, as to those comments expressing impermissible religious hostility: We really don’t care, do we?
The Court’s order granting certiorari, vacating, and remanding is Dkt. No. 17-108, Arlene’s Flowers, Inc. v. Washington, June 25, 2018.
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