Following upon its decision In Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), the US Supreme Court vacated and remanded for reconsideration a Washington State Supreme Court decision (State v. Arlene’s Flowers, Inc. 187 Wn 804 (2017) that decided facts similar to those of Masterpiece Cakeshop (cert. granted, judgement vacated sub nom Arlene’s Flowers, Inc. v. State. 138 S. Ct. 2671(2018). SCOTUS directed the state court to consider whether anti-religious animus contributed to the decision below and thus violated the shop owner’s Free Exercise rights as it found in Masterpiece. The consolidated cases of State of Washington- and Ingersoll and Freed v. Arlene’s Flowers now have been briefed for the hearing on reconsideration; the following is this writer’s summary of the arguments made in the briefs.
June 20, 2019 Feature
Washington Supreme Court to Reconsider Decision on Religious-Based Denial of Public Services
By Bill Scheiderich
The Washington AG had filed suit against Arlene’s Flowers when it took notice of social media comments by Messrs. Ingersoll and Reed of the flower shop owner’s refusal to create a custom flower arrangement for their same-sex wedding. The suit claimed that the owner’s actions violated the Washington Consumer Protection Act and the Law Against Discrimination (WLAD) in the form of discrimination in public accommodation and an unfair trade practice and unfair method of competition. The state trial court found for the state, and the state Supreme Court affirmed.
The briefs on this remand appear to agree that, one, the shop owner (Ms. Baronelle Stutzman) bore no personal animus towards Mr. Ingersoll, a longtime former customer, nor towards his partner, Mr. Freed. Two, nothing in the record showed any question as to the sincerity of her religious belief that marriage may only be between one man and one woman. From there, the factual assertions and legal arguments take a much different turn from those in Masterpiece Cakeshop.
First, the Colorado case came to SCOTUS after adjudication from a state Human Rights Commission. It was in that Commission’s proceedings that the Supreme Court found evidence of anti-religious animus. The state’s brief on this reconsideration points to the absence of any indication in the record that either the state trial or the state appeal proceedings showed any such evidence of hostility or bias. Ms. Stutzman’s reply brief does not take issue with that assertion. Her argument is that the very filing of the complaint proceedings and subsequent court cases, by the Washington AG on its own initiative, was itself the “proceeding” where a state actor (the AG) acted with anti-religious animus. The state’s reply brief asserts to the contrary that the only issue for consideration on remand is whether, in their respective decisions, the trial court or the state Supreme Court evidenced “clear and impermissible hostility” towards her religious beliefs.
In support of a “selective prosecution” argument of evident hostility towards her beliefs, Ms. Stutzman pointed to the AG’s different actions in a different case of alleged discrimination in public accommodation occurring some years after her case had been decided by the state courts. In that other case, a gay man operating a Seattle coffee shop had refused to serve and forcefully ejected a number of patrons who, he recognized, had been part of an anti-abortion demonstration on the streets outside the shop. The protestors had distributed to passersby graphic illustrations depicting an ogre painted in “gay flag” colors with bloody hands carrying a depiction of a fetus. In that case the AG’s office did process a complaint but resolved it with that shop owner without resort to litigation. The shop owner had attributed his conduct to his anger and disgust at those tactics, and agreed not to refuse service to any patron based on the patron’s religious beliefs.
Next, Ms. Stutzman argues that to require her to accommodate the couple’s request for her services would be to compel her to participate in the couple’s wedding, against her religious beliefs. Here she asserts not only that the flower arrangements would constitute protected creative expression, but she also asserts that her services for weddings necessarily includes her presence at the ceremony (to refresh the flowers and keep the presentation intact to reflect the care she invested in creating them). Mr. Ingersoll had testified that they never discussed the full scope of her proposed services as she had rejected outright the request to make the floral arrangements before the conversation ever reached that level of detail. Her belief that the services requested would force her to attend the wedding was, he testified, unknown to him. The record showed that wedding services constituted a very small percentage of her business.
Finally, the Appellants make what might be characterized as an “as applied” challenge to the WLAD itself, namely, that for the state to apply that law to require public accomodations or services contrary to one’s sincere religious beliefs is, in and of itself, a violation of the Free Exercise clause.
The full text of the briefs filed in this case may be found at http://www.courts.wa.gov/appellate_trial_courts/SupremeCourt/ using typical search fields.
On June 6, 2019 the Washington Supreme Court published its opinion affirming is original decision after reconsideration.