Analysis Human Rights

Washington Supreme Court Rules Against LGBTQ Discrimination in ‘Arlene’s Flowers’

Lisa Needham

The Alliance Defending Freedom keeps making the same legal arguments in different states—and keeps losing.

Even though the U.S. Supreme Court ruled in favor of marriage equality in Obergefell v. Hodges in 2015, ancillary battles have not come to an end about whether certain companies—usually those that provide wedding-related services—legally have to provide services to same-sex couples. This latest fight has, thankfully, been decided against discrimination in a case out of Washington state, Ingersoll v. Arlene’s Flowers.

Marriage equality in Washington state became legal in 2012. In early 2013, a gay couple, Curt Freed and Robert Ingersoll, approached a local florist—Arlene’s Flowers, which Ingersoll had used previously—to ask for floral arrangements for their wedding. The owner of the shop, Barronelle Stutzman, refused, citing her religious belief that marriage is between a man and a woman.

Washington state has a law prohibiting any businesses that provide public accommodations—which includes all retail and service businesses, like a floral shop—from discriminating based on sexual orientation. When the state attorney general’s office found out about the refusal, it sent a letter to Stutzman asking her to sign an assurance that she would no longer discriminate against same-sex couples for wedding floral services. Stutzman refused, and the state then filed a lawsuit against both her and the floral shop in the spring of 2013. Ingersoll and Freed, represented by the ACLU, filed a private lawsuit. The two cases were eventually consolidated.

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Stutzman’s refusal to provide floral arrangements centered on a rather torturously constructed reading of First Amendment protections. Essentially, she argued that her floral arrangements—even if copied from a picture or book provided by someone—represent protected free speech in the form of “floral art.” Her refusal was also predicated, as these sorts of arguments almost always are, on an assertion that she was distinguishing between what the Washington Supreme Court called “status and conduct fundamentally linked to that status.” In other words, business owners like Stutzman say they aren’t refusing to serve LGBTQ people on the basis of their sexuality. Instead, the argument goes, they’re just refusing to serve anyone who engages in conduct that violates their religious beliefs, such as same-sex marriage. It ends up as an advanced version of “I love the sinner but hate the sin.” (The ostensible sincerity of that belief is further undercut by the fact that Stutzman said she’d have no problem providing flowers for an atheist or Muslim wedding.)

In finding against Stutzman and the flower shop, the court found her argument entirely unpersuasive. It held that Washington’s anti-discrimination law was designed to ensure that people, regardless of their sexual orientation, have “full enjoyment” of all public accommodations. This means anything that directly or indirectly results in discrimination is prohibited under the law. In other words, even if you take Stutzman’s assertion at face value—she’s refusing services because a couple is getting married, not because the constituent parts of the couple are LGBTQ—it doesn’t matter. The end result, indirectly, is that LGBTQ people can’t access the same marriage-related services as straight people.

The court also found that the public accommodations provision of Washington’s anti-discrimination law was designed to protect patrons of businesses, not business owners, and that companies that “engage in commerce necessarily accept some limitations on their conduct as a result.” Essentially, you can’t hold yourself out as a corporation doing business with the public and then decide there is a specific part of the public you are not comfortable servicing.

By choosing to operate a business, one of the “limitations on [your] conduct” is having to do business with people you might not agree with. This doesn’t mean, to be sure, that business owners need to accommodate every type of person or behavior. Restaurants are free to demand their patrons wear shoes. Stores are free to remove people who are disruptive or who make their employees feel unsafe. Businesses are even free to refuse service to people for any reason at all—so long as that isn’t based on discriminating against someone because of their race, religion, sexual orientation, gender, or disability status, among other things.  

The florist in this case, unsurprisingly, was represented by the Alliance Defending Freedom, a conservative legal group that has worked assiduously to deny LGBTQ people their rights. ADF has taken many cases like this before—and repeatedly being handed losses hasn’t deterred it from continuing to do so. A few years ago, ADF represented a New Mexico wedding photographer who refused to provide services to a lesbian couple. The New Mexico Supreme Court held that the refusal violated New Mexico’s anti-discrimination act, which protects people on the basis of sexual orientation.

ADF also currently represents a cake shop owner in another similar case. There, the shop owner refused to make a cake for a gay couple because his religion does not approve of same-sex marriage. Colorado also prohibits discrimination based on sexual orientation, and the Colorado Court of Appeals similarly held that the owner’s refusal to provide services violated the state anti-discrimination law. The U.S. Supreme Court still hasn’t decided whether it will take that case.

And late last year, ADF filed a lawsuit on behalf of a Minnesota film production company that has never been approached to provide services to same-sex couples, but is afraid it might be. Since Minnesota has a human rights act that forbids refusal of services based on sexual orientation, it isn’t unreasonable to expect a similar outcome against the couple there.

The Washington loss hasn’t stopped ADF from fundraising off of the case, which likely means a petition to the U.S. Supreme Court is in order. There is probably nothing that will deter people like Barronelle Stutzman from discriminating against LGBTQ people, and there is probably nothing that will stop ADF from bringing this case again and again, but it is always nice to see a win.

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