by Travis Weber
February 16, 2017
Today the Washington Supreme Court ruled against Barronelle Stutzman, a florist who for years happily served her customer and friend Rob Ingersoll (who she clearly knew identified as gay), but could not in good conscience assist him in celebrating his same-sex marriage because it involved her creative talents and energies in furthering an activity she believed to be wrong.
In response to this desire to honor her conscience, the Washington State government organs of “justice” teamed up with the ACLU to sue her for purported violations of nondiscrimination laws, putting her personal assets and home at risk as a result. Barronelle never asked for this controversy, but it was brought to her doorstep by activists who simply couldn’t live and let live, and she has stood strong through it.
In its ruling today, the Washington Supreme Court first exposed its bias by spending a page and a half detailing the emotional toll on the same-sex couple, while spending a total of one sentence acknowledging similar harm to Barronelle (Hint: that toll is much more than one line’s worth). In addition to this discrepancy, there are major problems with the ruling. I want to focus on three of them.
1. The court got it wrong by concluding Barronelle engaged in discrimination
The state high court clearly erred by rejecting Barronelle’s claim that she did not engage in sexual orientation discrimination but rather objected to a certain activity (participation in the same-sex wedding). In rejecting her argument, the court heavily relied on cases minimizing any status/conduct distinction (the idea being that limiting the behavior of a certain class is discriminating against that class—a “tax on wearing yarmulkes is a tax on Jews”). Minimizing that distinction is a big error in this case, however. What makes the tax on yarmulkes reprehensible is the fact that it really is a back-door way of targeting Jews. Barronelle is not trying to “sneak in” discrimination against LGBT people by declining to participate in their marriages. She’s happily served these same people for years!
The court recognized she had no problem with “selling bulk flowers and “raw materials,’” for use in a same-sex wedding, and acknowledged “she would be happy to do” that in this case. The court seemed to miss how this shows her actions do not turn on whether the customer identifies as LGBT or not, but rather upon the specific activity she is asked to participate in, noting at one point it believes “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” But the court already acknowledged Barronelle was not turning away customers because they identified as gay, as a sandwich counter would turn away any African-American who walked in. Barronelle only wanted to not be involved in their weddings. Is the court not willing to accept this?
There actually is a status/conduct distinction that’s important to this case, and the Washington Supreme Court errs in minimizing it and relying on dissimilar situations and precedents. While the court acknowledges that cases highlighting the status/conduct distinction exist (see footnote 6 at the bottom of page 16 of the opinion), it does not discuss or address them. Barronelle honestly and simply has a conscience objection to facilitating certain marriages, and nothing else. Courts, activists, and everyone else involved in this discussion need to recognize this.
2. The court hugely erred in rejecting Barronelle’s Free Speech claim
Additionally, the Washington Supreme Court simply got it wrong in rejecting Barronelle’s Free Speech claim. Though beginning with soaring language probably meant to show its high regard for free speech, the court quickly puts a damper on the party, concluding her artistic creations are not “inherently expressive” protected speech. The court’s analysis has some gaping holes, however, as it heavily relies on Rumsfeld v. FAIR despite significant legal and factual differences with the present case. FAIR was an unconstitutional conditions case dealing with government funding—in the military, moreover—an area Congress has significant constitutional power to regulate. The Court in FAIR also noted the recruiting law does not force schools to accept members they did not desire, while nondiscrimination laws force complete compliance in admissions or service. FAIR is also distinguished because the case hinged on a funding conditions issue, while here, as in Boy Scouts of America v. Dale and Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the primary issue is constitutional rights being pitted against nondiscrimination laws.
The Washington Supreme Court gave inadequate attention to perhaps the most relevant case—Hurley—concluding it was “unavailing” to Barronelle simply because the Supreme Court in that case had recognized the parade organizing council was not a traditional public accommodation. But that was not the issue in Hurley; rather, it was whether there were constitutional rights in play that trumped any application of that state nondiscrimination law. On this point, the Hurley Court observed: “[w]hen the [public accommodations] law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own.” Thus, the Court concluded the application of the public accommodations law infringed on the parade organizers’ free speech, specifically the right to control the content of their message and be free from being compelled to speak a certain message.
But the Washington Supreme Court skips all this analysis (indeed, the court mentions Hurley and Dale in Footnote 11 on the bottom of page 28, but sidesteps any discussion of how the federal constitutional rights in those cases trumped state law). The issue here is not, as the court believes, whether Barronelle’s business is the type that has “traditionally been subject” to nondiscrimination laws, but whether the First Amendment protects her as it did the parade organizer in Hurley. Barronelle’s expression should have been so protected, and the Washington Supreme Court erred in concluding it was not (oddly, it did so while spending several pages listing myriad examples of a variety of expressive activity which is protected—not all of which was more clearly “speech” than Barronelle’s activity).
How it does this while at the same time quoting another Supreme Court case for the proposition that “[t]he government may not prohibit the dissemination of ideas that it disfavors, nor compel endorsement of ideas that it approves” is quite baffling. No same-sex marriage supporting florists are being threatened here. The state government is using the WLAD to go after those who disapprove of this “idea,” and the court goes along with this, while quoting a Supreme Court case which requires the opposite.
The state high court concludes that the average observer of Barronelle’s action would not think it is meant to send any message and thus is not protected as “inherently expressive” activity. Yet one wonders how that same court would view the many who recently have protested President Trump in a variety of ways—most notably those refusing to design dresses for his family. I suspect they would most certainly believe that their actions were expressing a message. Would the Washington Supreme Court disagree with them if the issue arose as a legal question?
3. The ruling validated concerns that same-sex marriage and SOGI laws will be used to suppress religious liberty
First, in its analysis which concluded that Barronelle engaged in impermissible sexual orientation discrimination, the court cites the Supreme Court’s same-sex marriage decision in Obergefell v. Hodges. The state court claimed that denying marriage licenses is equal to sexual orientation discrimination, a conclusion it now foists upon Barronelle in her religious liberty case. With more of these wedding-related religious liberty cases likely to come, this part of the ruling should be noted by those who said Obergefell would not be used against such dissenters, and would not affect religious liberty. Indeed, the Supreme Court itself said in Obergefell: “[f]inally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths … .” Apparently, that may not be true after all, if more courts and advocates adopt the reasoning of the Washington Supreme Court.
Second, on the bottom of page 52, the court’s reasoning validates the concerns of those who have long been claiming that SOGI laws are incompatible with religious liberty. Even when it comes to the most heartwarming religious liberty claimant around (an elderly grandmother who served her LGBT-identifying friend for years but didn’t want to be involved in his wedding), her rights are no match for state SOGI laws—which, the state high court concludes, are backed by a compelling government interest accomplished through the least restrictive means. Those putting much faith in compromise solutions between religious liberty and SOGI advocates should reexamine their assumptions in light of this portion of the opinion.
Despite this ruling, Barronelle may yet be able to obtain relief from the United States Supreme Court. Hopefully, that Court will take up her case and uphold her federal constitutional rights in the face of the Washington State government’s oppressive action and its state courts’ acquiescence in this injustice. In thinking about how the U.S. Supreme Court will treat this case, it is a reminder of how important it is to have Judge Neil Gorsuch, who is good on religious liberty, confirmed as a replacement for the late Justice Antonin Scalia.
Meanwhile, we must not let what has happened to Barronelle at the state level happen to others at the federal level. This ruling is all the more reason for President Trump to protect religious liberty through executive action. Please join our petition effort calling for such protections.