On June 25, the Supreme Court finally acted on a petition for certiorari filed last summer in Arlene’s Flowers, Inc. v. State of Washington, No. 17-108, in which Alliance Defending Freedom (ADF) sought review of the Washington Supreme Court’s ruling that unanimously affirmed the Benton County Superior Court’s decision that Arlene’s Flowers and its proprietor, Barronelle Stutzman, had violated the state’s Law Against Discrimination and its Consumer Protection Act by refusing to sell wedding flowers to a same-sex couple. The Petition was docketed at the Supreme Court on July 14, 2017, after the Court had recently granted review in Masterpiece Cakeshop v. State of Colorado. The Court did not place this Petition on the agenda for any of its certiorari conferences until after rendering its decision in Masterpiece Cakeshop on June 4, 2018. Then on June 25, it granted the petition, vacated the lower court’s ruling, and sent the case back for “further consideration” in light of the Masterpiece ruling.
This case arose from an incident that occurred shortly after Washington began to issue same-sex marriage licenses as a result of the marriage equality litigation within the 9th Circuit. Robert Ingersoll and Curt Freed, a same-sex couple planning their wedding, went to Arlene’s Flowers to order floral decorations for what they planned to be a big event. Ingersoll had been a frequent customer of this business and had established a personal relationship with the proprietor, Barronelle Stutzman. When he asked her to provide the flowers for his wedding, however, she told him that she could not design flowers for his wedding because of her relationship with Jesus Christ. She gave him the names of three other florists, and claims he said he understood her decision and “they hugged before he left.” Ingersoll and Freed decided to scale down their wedding plans as a result of this and evidently talked about their experience to others, generating news reports that spurred the state’s Attorney General to action. Around the same time the state’s lawsuit was filed, Ingersoll and Freed, represented by the ACLU, filed their own suit, and the two cases were consolidated, resulting in State v. Arlene’s Flowers, 2015 WL 720213 (Wash. Super. Ct., Benton Co.), and State v. Arlene’s Flowers, 187 Wash. 2 804, 389 P.2d 543 (2017). (Washington State allows direct action to enforce the statutes in question without requiring exhaustion of administrative remedies, and the Washington Supreme Court accepted Arlene’s Flowers’ petition for direct review, bypassing the state’s intermediate appellate court.) The state courts found that the defendant had violated the statutes, and that she was not entitled to any 1st Amendment defense.
Within days of the Masterpiece ruling, ADF had filed a supplementary brief in the Supreme Court on behalf of Arlene’s Flowers and Stutzman, urging the Court to grant certiorari, vacate the state court ruling, and remand for consideration in light of Masterpiece. The Respondents (State of Washington and Ingersoll and Freed) quickly filed responding briefs, arguing that certiorari should be denied because there was nothing in the history of this case that suggested anything like the grounds on which Masterpiece had been decided.
In its supplementary brief, ADF mounted several arguments in support of its contention that Masterpiece could require a reversal in this case because of “hostility” to religion by the State of Washington. First, ADF argued that the Attorney General’s action in filing suit against Barronelle Stutzman in both her professional and personal capacities, reacting to news reports and without the same-sex couple having filed their own discrimination claim, evinced hostility to religion. Second, ADF argued that the trial court’s reliance on and quotation from a case cited by the Attorney General in which the court ruled against a retail store that refused on religious grounds to serve African-Americans was, in effect, comparing Barronelle to the “racist” owner of the store, further evincing “hostility” to her religion. Based on this, ADF argued, “the State, in short, has treated Barronelle with neither tolerance nor respect,” quoting Justice Kennedy’s phrase from Masterpiece. ADF also pointed to the state’s failure to initiate litigation against a coffee-shop owner in Seattle who, according to a radio talk show, had “profanely berated and discriminated against Christian customers,” apparently seeking to draw an analogy to a situation described by Kennedy in Masterpiece, of the Colorado Civil Rights Commission dismissing charges against three bakers who had refused to bake anti-gay cakes in the wake of the Commission’s ruling against Masterpiece Cakeshop.
The State of Washington and the ACLU quickly filed responsive briefs, disputing the accuracy and relevance of ADF’s supplementary brief. For one thing, unlike Masterpiece Cakeshop, Arlene’s Flowers did not raise any issued in its original Petition about “hostility to religion” by the state and, Respondents argued, could not now introduce a new issue into the case. For another, they pointed out, a party to litigation citing a case that supports its legal position cannot be considered “hostility to religion.” After all, Justice Kennedy cited a similar federal case involving a restaurant that refused to serve African-Americans in his opinion in Masterpiece to support the point that it is well established that there is no general free exercise exemption from complying with public accommodations laws. This doesn’t show hostility to religion by the court. Furthermore, the A.G.’s filing of a discrimination complaint, in itself, is no evidence of animus or hostility, but merely doing his job, and the A.G. “played no adjudicatory role in the process of deciding this case.” What Masterpiece required was that the forum not be hostile religion, and the forum is the court, not the parties to the case.
Furthermore, the A.G.’s brief pointed out, there was doubt about the accuracy of the talk radio report cited by ADF, but notwithstanding that, even though nobody filed a discrimination claim against the coffee shop owner, the chair of the Washington Human Rights Commission “publicly announced that she would send a letter to the business owner explaining Washington law,” and the owner subsequently announced, unlike Barronelle Stutzman, that “he will no longer refuse service to the customers he initially turned away.” Contrast this with the situation in Masterpiece, where Justice Kennedy counted as evidence of hostility that the Colorado Commission had rejected discrimination claims against three bakers who declined to make anti-gay cakes while ruling against Jack Phillips for refusing to make a same-sex wedding cake. (As Justice Breyer explained in his concurring opinion joined by Justice Kagan, there was no inconsistency here as the two situations were clearly distinguishable.)
In any rate, a strong argument can be made that there is no basis for order “further consideration” of Arlene’s Flowers in light of Masterpiece. In the days following a Supreme Court decision, the Court usually moves quickly to dispose of petitions in other cases that had been “on hold” pending its ruling. It is not uncommon in such “mopping up” situations to send cases back to the lower courts for a determination whether the Supreme Court decision would require a different result. But it is also common to merely deny the petition if the lower court ruling is clearly consistent with the new Supreme Court decision. In this case, the Court’s action may be reacting to ADF’s assertion in its supplementary brief that there is evidence of hostility to religion in the proceedings in the Washington courts, and to a common practice by the Court of sending cases back for reconsideration if any member of the Court is troubled about possible inconsistency. On the other hand, it may signal some ambiguity about exactly what the Court was holding in Masterpiece, and a desire by the Court, ultimately, to consider the underlying legal questions on the merits without any complications involving the nature of the lower court proceedings.
The Supreme Court’s decision to vacate the Washington Supreme Court’s ruling is certainly cause for concern, since that ruling is totally consistent with what Justice Kennedy said about the free exercise and free speech arguments that ADF advanced in Masterpiece, and a careful reading of Kennedy’s opinion shows that the Court did not back away, at least overtly, from its prior precedents holding that there is not a free exercise exemption from complying with laws banning discrimination in public accommodations. Time will tell whether a firm majority of the Court is actually ready to reassert that position on the merits in an appropriate case. Meanwhile, opponents of religious exemptions can take some comfort from the actions by the Arizona Court of Appeals and the Oregon Supreme Court (refusing to review a court of appeals ruling in another wedding cake case) in the weeks following the Masterpiece rule.