The U.S. Supreme Court on Monday ordered the case of a Washington florist who refused to provide flowers for a same-sex wedding back to the lower court for another look, vacating the decision against her and signaling the justices are not quite ready to settle when, if ever, a business can decline to offer goods or services based on a religious objection to marriage equality.
The Court had considered taking Arlene’s Flowers Inc. v. Washington four times before issuing Monday’s order.
In early 2013, Curt Freed and Robert Ingersoll approached Barronelle Stutzman, a Southern Baptist who owns Arlene’s Flowers in Richland, Washington, to ask for floral arrangements for their wedding. Ingersoll had hired Stutzman previously to provide floral arrangements for different occasions. But this time, Stutzman refused to sell Ingersoll flowers, citing her religious objection to same-sex marriage as the reason she was turning the couple away.
Washington is one of 20 states that prohibit any businesses that provide public accommodations from discriminating based on sexual orientation. Those public accommodations include all retail and service businesses, including florists. After Freed and Ingersoll were turned away, they described their experience in a Facebook post. That post caught the attention of local media and the state attorney general’s office. When the state attorney general 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. The state then filed an independent lawsuit against Stutzman and the flower shop, as is allowed under Washington law. Ingersoll and Freed, represented by the American Civil Liberties Union (ACLU), filed their own private lawsuit. The two cases were eventually consolidated into one legal challenge against Stutzman and Arlene’s Flowers. In 2017, the Washington Supreme Court ruled unanimously on behalf of Freed and Ingersoll.
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Monday’s order in Arlene’s Flowers offers no insight into the Court’s decision; it only directs the Washington court to reconsider its determination that the florist intentionally discriminated against the couple, in light of the Court’s holding in Masterpiece Cakeshop v. Colorado Civil Rights Commission. That’s the Colorado case involving a Christian baker named Jack Phillips who refused to sell a wedding cake to a same-sex couple. Just a few weeks ago, the Court in Masterpiece Cakeshop tossed out rulings from the state human rights commission and state courts that Phillips had violated state law by refusing to serve the couple. Instead the Court ruled 7 to 2 that there was sufficient evidence that state civil rights commissioners had shown religious bias when investigating the claim against the baker to warrant vacating the ruling and sending his case back to the lower courts for further review.
After the Court issued its ruling in Masterpiece Cakeshop, attorneys from Alliance Defending Freedom, the Christian litigation mill that represents both Stutzman and Phillips, argued the justices should do the same with the Arlene’s Flowers case, claiming the state trial court “has treated Barronelle with neither tolerance nor respect,” and that the Washington attorney general has “steadfastly—and on his own initiative—pursued unprecedented measures to punish” Stutzman by seeking to collect monetary damages against her for violating the Washington law.
“We expected this procedural step,” Washington Attorney General Bob Ferguson said in a statement following the order. “The Washington State Supreme Court now has the job of determining whether the U.S. Supreme Court ruling affects this case. I am confident they will come to the same conclusion they did in their previous, unanimous ruling upholding the civil rights of same-sex couples in our state.”
“To be clear, the court made no indication the lower courts ruled incorrectly and made no decision on the case’s merits,” said James Esseks, director of ACLU’s LGBT and HIV Project, in a statement. “We are confident that the Washington State Supreme Court will rule once again in favor of the same-sex couple, and reaffirm its decision that no business has a right to discriminate.”
In 2017 the Washington Supreme Court unanimously ruled that Stutzman had violated the state’s human rights law. In defending her actions, Stutzman tried to argue that she was not discriminating against LGTBQ people on the basis of who they are by refusing to provide flowers for same-sex weddings. Rather, she argued, she is refusing to engage in conduct (selling flowers) that violates her religious objection to marriage equality.
It’s a variation of the argument Justice Neil Gorsuch put forward in his concurring opinion in Masterpiece Cakeshop and one both Justice Elena Kagan in her concurrence for Masterpiece Cakeshop and the Washington Supreme Court in its ruling on this case shredded to ribbons. First, the Washington court explained that the state’s anti-discrimination law was designed to ensure that people, regardless of their sexual orientation, have “full enjoyment” of all public accommodations. As Lisa Needham explained for Rewire.News, this means anything that directly or indirectly results in discrimination is prohibited under the law. Stutzman’s attempt to distinguish between refusing services to a same-sex couple and refusing services for a same-sex wedding are irrelevant.
“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,” Needham explained.
“No one should have to experience the hurt that we did,” said Ingersoll in a statement following the order. “Curt and I now live our lives on-guard in a way that we didn’t before we were turned away from Arlene’s Flowers. No one should have to experience that, and we’re hopeful the Washington courts will again recognize that this case is clearly about discrimination, which has no place in the public marketplace or in our Constitution.”
Like the decision in Masterpiece Cakeshop, Monday’s order in Arlene’s Flowers was not a decision by the Supreme Court on the merits of of Stutzman’s actions, nor on her claims that the Washington attorney general showed religious hostility in the enforcement action against her. And given the record from the proceedings in Washington, there is no reason to think the Washington court will rule any differently the second time around on this case.
But the idea that state governments are somehow treating Christian business owners unfairly when investigating discrimination claims against those business owners has clearly taken hold at the Roberts Court. As Rebecca Pilar Buckwalter Poza notes, the fact that the Court sent the case back to Washington rather than accepting it outright also suggests the Court is “weighting discriminatory religious beliefs more heavily when it comes to sexual orientation than other bases for discrimination, such as race or gender.” Someone not familiar with the Masterpiece Cakeshop case could easily conclude based on a quick read of the decision that Phillips had sued the state for religious discrimination rather than being sued by the state for LGBTQ discrimination. The decision barely mentions the discrimination faced by the Colorado couple, instead admonishing Colorado officials for noting that religion has historically been used to justify horrible things from slavery to the Holocaust. The decision, authored by Justice Anthony Kennedy, claimed those statements suggested the state had an improper anti-religious bias when enforcing its non-discrimination law.
Arlene’s Flowers now returns to the Washington court, which will have an opportunity to issue another ruling—one that this time specifically addresses the actions of the Washington attorney general in deciding on his own to proceed with a case against Stutzman.
In some ways, that could be a good thing. We’ve already seen one court cite Masterpiece Cakeshop to affirm a local non-discrimination ordinance. Monday’s action by the Supreme Court gives the Washington court the chance to do so too. The more courts that cite Masterpiece Cakeshop for the positive conclusion that states can and should affirmatively protect the rights of LGBTQ people, the harder it will be for the Supreme Court to find a way to overturn that conclusion. But without a clear holding from the Roberts Court that states businesses and their owners cannot claim a religious objection to same-sex marriage as a way to avoid complying with non-discrimination laws, the possibility remains that a future Court—one with or without Justice Kennedy— could craft that very exemption and hand evangelicals the win they are seeking.