The Arlene’s Flowers Case

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

10 thoughts on “The Arlene’s Flowers Case

  1. Evan Humphreys July 15, 2016 / 1:08 pm

    A question about one of your proposed solutions: would using a network of affiliates really protect a closely held business from discrimination claims? Couldn’t that practice –offering your own services to heterosexuals, but foisting the work on to others for homosexuals- be viewed as a kind of discrimination? I agree that it seems to accommodate both sides, but I sense that some would still object to even this level of different treatment.

    I’m glad to see that someone is taking a balanced approach to these complicated legal issues. I look forward to reading more of your blog.

    Like

    • fravitch12 July 15, 2016 / 2:50 pm

      Evan,

      Thank you for your comment. I agree that the solution is far from perfect. I propose it as a permissive accommodation so that states can recognize it as an alternative, but don’t have to do so. The idea is to minimize any inconvenience and completely eliminate any additional costs for the couple seeking the service. There is still the potential for dignitary harm, but the accommodation is designed to minimize it. Also, it would only apply to sole propietorships or very small family owned shops. In the book I argue against protecting for-profit entities more broadly.

      Like

  2. readerjohn July 17, 2016 / 12:02 pm

    “[T]he 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.”
    I can certainly understand that someone might try to hide bias against gay status behind objection to gay marriage, but why should this be an across-the-board dogma, even in cases like Stutzman’s, when she so patently does not discriminate based on status simpliciter?
    Further, why should free speech defenses fail when the gay customer is asking for the expressive conduct of a celebratory flower arrangement (on in other cases a custom-made cake or set of celebrative photos)? As a sometimes-photographer, I can really empathize with a photographer who feels that he doesn’t even have the artistic vocabulary for a commission.

    Like

    • fravitch12 July 17, 2016 / 3:56 pm

      Thank you for the comment. You raise a good point, but the law on this has been pretty consistent. It doesn’t require that the person who discriminates based on conduct have bad intentions or that the person be a bigot. I agree that Baronnelle Stutzman had no bad intent and is no bigot. But the law simply acknowledges that when conduct is closely tied to status discrimination based on one is discrimination based on the other. If there is an adequate defense based on religion it could protect someone like Baronnelle Stutzman. As for the free speech issue there have been several cases which have considered the argument, including the Masterpiece Cakeshop case from Colorado and the Elaine Photography case from New Mexico, and it has failed in these cases because the entities involved are businesses open to the general public. Both of those courts were clear that if the photography or baking were not for profit the free speech argument would win. Please remember that I am simply explaining the law on these issues; not making it. I do oppose larger for-profit entities having any religious freedom defense and I think Hobby Lobby was wrongly decided, but I am far more sympathetic to sole proprietorships and other very small shops involved in creative services so long as they have a religious objection to materially supporting marriage and so long as they do not oppose serving members of the LGBT community generally, which is why I proposed the limited accommodation I did in the book.

      Like

      • readerjohn July 18, 2016 / 1:40 am

        “Please remember that I am simply explaining the law on these issues; not making it.”

        Acknowledged.

        But one of the things academics like you do is critique the law when it’s producing injustice, and perhaps predict what SCOTUS will do when it gets an issue.

        I could easily see SCOTUS, at least before Scalia’s death, unanimously reversing Masterpiece Cakeshop and Elaine Photography as they stunning reversed in Hurley despite the Iberian’s losses, and even judicial derision, in lower courts.

        I personally am unpersuaded by the “businesses open to the general public” approach when it comes to creating original works of art/craftsmanship as opposed to selling merchandise that’s already produced and “sitting on the shelf,” as it were. I know what the courts have said. I think they’re wrong and that my view has a decent chance even in the current and near-term-future Supreme Court.

        Like

      • fravitch12 July 18, 2016 / 5:46 pm

        You are correct that we do tend critique the law and sometimes we also try to predict what SCOTUS will do if a given issue reaches it. I think if a case similar to Masterpiece Cakeshop or Elaine Photography reached the Court we would end up with a unanimous decision against the shops under the Free Exercise Clause and a split decision under the Free Speech Clause.

        I think we would end up with a unanimous decision under the Free Exercise Clause against the shop because state anti-discrimination laws are laws of general applicability (apply to everyone) and there is no duty to provide an exemption. This is because of a terrible decision (in my opinion) authored by Justice Scalia called Employment Div. v. Smith, which held that so long as a law is generally applicable there is no duty to provide a religious exemption.

        I think the split decision would come under the Free Speech Clause. As you suggest there may be a distinction between those engaged in expressive activity for profit and those engaged in selling products or leasing property. I think some Justices would be persuaded by this argument and others would not. The key might be Justice Kennedy, and while I have little doubt that he would be willing to accept protection for expressive activities generally (in fact I think on that it would easily be 8-0 or 9-0 if we ever get a replacement for Justice Scalia), Justice Kennedy’s concurrence in Hobby Lobby suggests he might be unwilling to protect the rights of a business owner where protecting those rights would lead to discrimination against third parties. Of course, Hobby Lobby was decided under RFRA and the defense in these cases would be under the Free Speech Clause so the issue would arise in the context of whether or not there is actually a valid free speech claim and that might change things.

        As for my academic critique I think Elaine Photography was correctly decided given the facts in that case. My only disagreement with the court is one how they limited their state RFRA’s application as I explain in the book, but even if they applied the state RFRA to the facts the result would likely have been the same. I am agnostic about whether Masterpiece Cakeshop was correctly decided. I think the facts in that case, like those in the Arlene’s Flowers case, are more sympathetic for the shop owner. I explain the reasons for this in the book (as to Masterpiece Cakeshop. I do not address Arlene’s Flowers in the book since the appeal was not granted until after we were far into editing). What I try to do instead is craft an exemption to protect small shop owners engaged in expressive activity that will not in any way delay service for, or add cost to, same-sex couples seeking to do business with the shops. It is not an ideal solution for either side, but it is a compromise that protects rights on both sides. As you suggest it would only apply in contexts where expressive activity is involved.

        Like

  3. Aaron Logan July 19, 2016 / 5:01 am

    Is there any indication that, should Stutzman lose on appeal, the fines and costs will be greater than the funds she has raised through GoFundMe, Alliance Defending Freedom and Samaritan’s Purse fundraising? In the Oregon case of Sweet Cakes by Mellisa, the business was fined $135,000 yet they raised almost $500,000. Is Stutzman’s business really at risk?

    Is there an analysis of the constitutionality of RFRAs in your book?

    Thanks.

    Like

    • fravitch12 July 19, 2016 / 4:24 pm

      Thank your for your comment. The fundraising question is a good one because many plaintiffs in these cases end up having fees and fines covered when they lose, and sometimes even have a windfall of funds. Stutzman’s case is a bit different because of the likely amount of fees she could be liable for if she loses. The state has already said it will not seek fees from her but the individual plaintiff’s lawyers could have fees in excess of $1,000,000 given the amount of litigation that has been involved. The individual plaintiff’s themselves are only seeking a few dollars in damages to cover the extra cost they incurred and are much more concerned about getting an injunction than getting money. Quite honestly, I have no idea how much money she has raised through outside support and it is certainly possible by the time all is said an done she could have enough, but the fees in this case are likely to be quite high.

      As for the constitutionality of RFRAs, they are clearly constitutional (assuming they are regular RFRA’s). SCOTUS upheld the constitutionality of the Federal RFRA in a case called Gonzales v. O’Centro Espirita Benificente Uniao do Vegetal. State RFRAs would certainly be constitutional under the U.S. Constitution and also under most state constitutions. States may give people more rights than required by the federal constitution but not less rights and RFRA provides greater protection for religious freedom. In fact, RFRAs most often–although not always–benefit religious minorities as was the case in O’Centro. On the other hand, there have been some recent “religious freedom laws” or bills that are not RFRAs and which are likely unconstitutional. The most obvious among these is the recent Missisippi law called HB 1523, or the “Protecting Freedom of Conscience from Government Discrimination Act,” which seems aimed directly at same-sex marriage and LGBT rights, but has language that spans even further. The law goes far beyond the boundaries of the RFRA Mississippi already had in place. A Federal District Court found the law unconstitutional on June 30, 2016 and while an appeal is likely I think the district court opinion will likely be upheld.

      Like

  4. Boyd Bauer July 19, 2016 / 8:32 pm

    Your recommendation offers a common sense approach. I fear that any delay in the provision of service might result in a decision by those offend to “punish” in some cases with the help of federal agencies to drive the offending business out of business.

    Like

    • fravitch12 July 19, 2016 / 8:42 pm

      Thank you for the comment. It is certainly a possibility and that is why I hope my approach or some other common sense approach will allow rights on both sides to be protected.

      Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s