By Ese Olumhense
Refusing to make flower arrangements isn’t a constitutional right
WASHINGTON — The owner of a Washington flower shop who was sued for refusing to make floral arrangements for the wedding of an area gay couple — who she reportedly considered friends — lost an appeal Thursday before the state’s Supreme Court.
Barronelle Stutzman, the 72-year-old owner of Arlene’s Flowers in Richland, Washington, had appealed the 2015 decision of a trial court, which ruled that the grandmother had violated state anti-discrimination law and the Consumer Protection Act by refusing to serve Curt Freed and Robert Ingersoll, who had come to her business in 2013 for wedding arrangements.
“As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services,” part of Thursday’s 59-page opinion read. “Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination that purpose would be fatally undermined.”
After the 2015 trial court’s decision, Stutzman, a Christian, was given the opportunity to settle the case by paying a fine and promising not to discriminate in the future. She refused, saying that her “freedom isn’t for sale.”
Stutzman, who has known Ingersoll for ten years, said the Thursday ruling was “disappointing.” Despite the ongoing litigation, she said that she will attend her friend’s wedding.
The backlash to marriage equality: ‘No cake for you!’
As marriage equality for same-sex couples slowly became law in many states, starting with Massachusetts in 2003 and culminating in the U.S. Supreme Court decision in 2015, LGBT couples began encountering resistance and refusal from businesses as they tried to plan the wedding celebrations that many had waited decades to have.
For everything from cake to catering, and flower arrangements to photography, business owners have attempted the First Amendment religious freedom defense to deny service to LGBT patrons planning legal marriages. The businesses say that making a cake for a same-sex couple essentially endorses the marriages, a view that such owners say they cannot reconcile with their religious beliefs, and that, as private businesses, they shouldn’t have to.
As Washington’s Supreme Court notes, though, the use of this defense to flout local anti-discrimination laws is almost never successful: courts are hesitant to make exceptions to established local protections. The consequences for violating these laws are costly, as is the litigation against them. Like Stutzman, many people fighting such access-to-service laws work with conservative legal groups, like the Alliance Defending Freedom (ADF), to receive representation pro bono.
Could the Supreme Court hear this case?
The ADF has said it will petition the Supreme Court to hear Stutzman’s case. The group has launched an online campaign to do so, with a $24 million fundraising goal.
It is not likely that the case will be ultimately be heard by the Supreme Court. None like it has, though one involving a Colorado baker is pending review. (ADF is also representing that petitioner.) Before the Colorado case, ADF tried in 2014 to get a similar appeal involving a New Mexican photography firm heard, but that too was declined review by the Supreme Court.
“The Supreme Court rarely would grant a case if it is one of the first few on the issue,” explained Kristen K. Waggoner, senior vice president of legal advocacy for ADF. But as more business owners like Stutzman are “punished” for their religious views, Waggoner believes it is only a matter of time before the Court weighs in on anti-discrimination laws that “suppress freedom rather than supporting and expanding it.”
Equality groups worry that those efforts, if successful, would create a dangerous slippery slope, endangering far more than LGBT people.
“If a bakery, store, or restaurant were allowed to turn away gay people, it would open the floodgates to all kinds of discrimination against many different groups in all kinds of business settings, not just gay people,” wrote Jennifer Pizer, law and policy director at Lambda Legal, a gay rights group that filed a friend-of-the-court brief in the Stutzman case.