In March, 2016 the Washington Supreme Court agreed to hear an appeal of a trial court decision holding that Arlene’s Flowers and it’s owner, Baronnelle Stutzman, violated the Washington Law Against Discrimination and the Washington Consumer Protection Act. The violation arose when Baronnelle Stutzman refused to provide a flower arrangement to Robert Ingersoll, a long term client of Arlene’s Flowers, for his wedding to Curt Freed.
Stutzman had provided flower arrangements for Ingersoll for a variety of events, including birthday and Valentine’s day arrangements. She knew Ingersoll is gay and in a same-sex relationship with Freed, and had no objection to serving him and his partner until a same-sex wedding was involved. Therefore, she did not refuse to serve members of the LGBT community generally, but rather had a religious objection to same-sex marriage.
Yet the law is pretty clear that defenses based on conduct (marriage) versus status (being gay) are not valid; that is, discrimination based on conduct associated with a status protected by law is discrimination based on status. Washington law provides strong protection against discrimination based on sexual orientation. The best defense Stutzman had was based on Washington State’s strong constitutional protection for the free exercise of religion under its state constitution.
Stutzman is a devout Southern Baptist and she deeply believes that she can not support a same-sex marriage even if she has no issues with same sex relationships. This makes her case factually different from the Elaine Photography case from New Mexico, which gained a lot of media attention, because Elaine Photography refused to photograph any romantic event involving same-sex couples.
The trial court addressed many issues, but I think the key issue is the interaction between Article 11 of the Washington State Constitution, which protects the freedom of religion, and the Washington Law Against Discrimination. For reasons explained in the book Freedom’s Edge, I think free speech and free exercise arguments under the U.S. Constitution will always lose in these cases (and so far they have), but strong protection for religious freedom under a state constitution or state Religious Freedom Restoration Act may provide someone like Barronelle Stutzman with a possible, yet limited, defense.
Still, the trial court rejected Stutzman’s argument under Article 11 of the Washington Constitution because even though requiring her to do flower arrangements for a same-sex wedding substantially burdens her religion and conflicts with express tenets of her Southern Baptist faith the state has a compelling interest in prohibiting discrimination. Moreover, the court held requiring that businesses serving the general public not discriminate is narrowly tailored to serve the interest in prohibiting discrimination. It is this last question where the trial court may have been wrong.
I am not a fan of protecting religious freedom claims by for-profit entities because doing so opens a can of worms that has led to broad attacks on religious freedom more generally, including religious freedom for individuals and religious entities. Yet, if Stutzman loses the case her liability for legal fees might put her out of business, all because she stood by her faith in a manner that was not intended to be mean spirited or disrespectful towards Ingersoll and Freed.
Yet given the purpose of anti-discrimination laws enforcing those laws appears to be narrowly tailored to serve the government interest in prohibiting discrimination. Yet, if there were a less restrictive alternative Stutzman would have a chance. In factual situations similar to this there may be a less restrictive alternative, but Stutzman refused to allow it. That alternative is allowing someone else in the shop to do the arrangements. But she sincerely believed that as the owner she could not allow anyone to materially support the wedding under the auspices of her shop.
The only other option, which I propose in the book, would be for owners of sole proprietorships or small family shops to have a network of entities with whom they work so that the client can seemlessly, and without any additional cost, be served through an internal referral if a religious objection arises. Of course, it is too late for that accommodation in this case and it is unclear whether the accommodation would survive a legal challenge. So, pending her appeal to the Washington Supreme Court, Stutzman may be liable for millions in legal fees.
A copy of the trial court decision is posted here: Arlene’s Flowers Trial Court Decision