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Supreme Court Orders “Further Consideration” by Washington State Courts in Wedding Flowers Case

Posted on: June 25th, 2018 by Art Leonard No Comments

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.

Third Circuit Rejects Challenge to Pennsylvania School District’s Policy Allowing Transgender Students to Use Facilities Consistent with Their Gender Identities

Posted on: May 26th, 2018 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit took the unusual step on May 24 of announcing about an hour after hearing oral argument that it would unanimously affirm U.S. District Judge Edward G. Smith’s ruling from last summer denying a motion for a preliminary injunction by a group of parents and students seeking to stop the Boyertown (Pennsylvania) Area School District from continuing to implement a policy allowing transgender students to use locker rooms and bathrooms corresponding to their gender identities. Doe v. Boyertown Area School District, 2018 WL 2355999 (3rd Cir., May 24, 2018), affirming 276 F. Supp. 2d 324 (E.D. Pa., August 25, 2017).

Later that day, the court issued a brief “Judgement” written by Circuit Judge Theodore A. McKee, so brief that it can be quoted in full here: “We agree Plaintiffs have not demonstrated a likelihood of success on the merits and that they have not established that they will be irreparably harmed if their Motion to Enjoin the Boyertown School District’s policy is denied. We therefore Affirm the District Court’s denial of a preliminary injunction substantially for the reasons that the Court explained in its exceptionally well-reasoned Opinion of August 25, 2017.  A formal Opinion will follow. The mandate shall issue forthwith.  The time for filing a petition for rehearing will run from the date that the Court’s formal opinion is entered on the docket.”  There was some suggestion in press reports that after hearing argument the court was concerned that the affirmance be effective immediately, since the school year would shortly end.

This is one of several similar cases filed around the country by Alliance Defending Freedom (ADF), an organization formed to advance the freedom of Christians to assert the primacy of their beliefs over any conflicting obligations imposed by law. ADF is a staunch opponent of LGBT rights, battled on the ramparts to oppose marriage equality and to support the ability of businesses operated by Christians to refuse to sell their goods and services for same-sex weddings.  ADF has inserted itself into the “bathroom wars” by filing lawsuits on behalf of parents and allegedly cisgender students who oppose allowing transgender students to use single-sex facilities consistent with their gender identities.  When Judge Smith issued his decision last August, a federal magistrate judge in Illinois, Jeffrey T. Gilbert, had issued a report and recommendation to U.S. District Judge Jorge L. Alonso, which recommended denying ADF’s motion for a preliminary injunction against a similar school district policy in Students & Parents for Privacy v. United States Department of Education, 2016 WL 6134121 (N.D. Ill., Oct. 18, 2016), and Judge Smith cited and relied on Judge Gilbert’s analysis at various points in his decision.  Judge Alonso subsequently adopted Judge Gilbert’s Report and Recommendations, over the objections of ADF, on December 29, 2017, in Students & Parents for Privacy v. United States Department of Education, 2017 WL 6629520.

The plaintiffs in the Boyertown case argued three legal theories: first, that the district’s policy violates the constitutional privacy rights of non-transgender students under the 14th Amendment; second, that the school district’s policy violates Title IX’s requirement, as fleshed out in Education Department regulations, to provide separate restroom and locker room facilities for boys and girls; and third, that the policy violates Pennsylvania’s common law tort of invasion of privacy by intruding on the right of seclusion of non-transgender students.  Judge Smith found that the record compiled by the parties in response to the plaintiffs’ motion for preliminary injunction showed that the plaintiffs were unlikely to prevail on any of these claims.  The bulk of his lengthy opinion (which runs 83 pages, including about six pages of headnotes, in Lexis) is devoted to a careful delineation of the factual record upon which he based his legal analysis.

Judge Smith explored each of the three theories at length, rejecting ADF’s argument that high school students have some sort of fundamental constitutional right not to share restroom facilities with transgender students because of the possibility that a transgender student would see them in their underwear, and noting particularly that factual allegations by individual plaintiff students who had found themselves in restrooms with transgender students showed that even if such a “right” existed, it had not been violated in any instance.

As to the Title IX argument, plaintiff insisted that allowing transgender students to use the restrooms created a “hostile environment” for the non-transgender students, but Judge Smith, recurring to Judge Gilbert’s ruling in the Illinois case, observed that “the School District treats both male and female students similarly,” undercutting the argument that the District is discrimination in education opportunity “because of” the sex of the individual plaintiff students.   “The practice applies to both the boys’ and girls’ locker rooms and bathrooms,” wrote Smith, “meaning that cisgender boys potentially may use the boys’ locker room and bathrooms with transgender boys and cisgender girls potentially may use the girls’ locker room and bathrooms with transgender girls.  In addition, with regard to the transgender students, both transgender boys and transgender girls are treated similarly insofar as they, upon receiving permission from the School District, may use the locker rooms and bathrooms corresponding with their gender identity.  Moreover, the School District is not discriminating against students regarding the use of alternative facilities if students are uncomfortable with the current practice insofar as those facilities are open to all students who may be uncomfortable using locker rooms or multi-user facilities… The School District’s similar treatment of all students I fatal to the plaintiffs’ Title IX claim.”  Concluding on the Title IX point, Judge Smith wrote, “The plaintiffs have failed to cite to any case holding that a plaintiff can maintain a sexual harassment hostile environment claim when the allegedly sexually harassing party treats all individuals similarly and there is, as such, no evidence of gender/sex animus.”  Simply put, the District was not “targeting” any student for particular adverse treatment because of his or her sex.  Judge Smith also pointed out that the law of “hostile environment” as it has been developed under Title VII of the Civil Rights Act of 1964, to which courts refer in Title IX cases, sets a very high evidentiary bar for establishing a hostile environment, which he concluded could not be met by the plaintiffs’ factual allegations in this case.

As to the tort of invasion of privacy claim, Judge Smith noted that there were no allegations that any of the named defendants had personally invaded the privacy of any of the plaintiffs, as the plaintiffs’ factual allegations all related to two transgender students, identified as Student A and Student B, whose presence in locker rooms or restrooms was the subject of individual plaintiffs’ angst. But, of course, Students A and B were only present in those facilities because the District’s policy allowed them to be.  “The court does not deny that an individual seeks seclusion in a bathroom toilet stall from being viewed by other people outside of the stall,” wrote Judge Smith, pointing out that the cases cited by the plaintiffs in support of their common law privacy claims “involve alleged invasions of privacy in bathroom stalls,” usually involving police surveillance of public restrooms.  “Here,” Smith pointed out, “there are no allegations and the plaintiffs presented no evidence that any transgender student invaded their seclusion while they were in a bathroom stall.  And similarly, although the plaintiffs indicate that viewing a person while in a bathroom would be ‘considered “highly offensive” by any reasonable person,’ the case cited involved an intrusion into a single bathroom stall and not the presence of someone in the common area of a multi-user facility.”  After noting how the plaintiffs’ factual allegations about particular incidents involving transgender students in restrooms fell short of supporting the plaintiffs’ contentions about unwanted exposure of their bodies, Smith wrote, “the court does not find that a reasonable person would be offended by the presence of a transgender student in the bathroom or locker room with them, despite the possibility that the transgender student could possibly be in a state of undress more significant than Student A was in this case when the male plaintiffs same him.”  He concluded similarly regarding the other incidents described by the plaintiffs, and concluded they had not shown a likelihood that they would be able to establish liability under Pennsylvania’s invasion of privacy tort.

That could be the end of Smith’s analysis, since a finding that plaintiffs are likely to prevail would be necessary to ground a preliminary injunction against the District’s policy, but Smith, to be thorough, analyzed the irreparable harm factor that courts consider, concluding that because the District was providing single-user alternatives the individual plaintiffs would not be irreparable harmed if the policy was allowed to continue in effect. He concluded as well that because these two factors weighed against granting the injunction, there was no need to perform the “balance of harms” analysis that would necessarily follow if the plaintiffs had prevailed on the first two factors.

As noted above, the 3rd Circuit’s brief Judgement issued on May 24 described Judge Smith’s opinion as “exceptionally well-reasoned,” so it is likely that the “formal opinion” to follow will run along similar lines and probably quote liberally from Judge Smith.  Also, it would not be surprising were the court of appeals to give persuasive weight to decisions from other courts ruling on claims by transgender students to a right under Title IX and the 14th Amendment to use facilities consistent with their gender identity.  In the course of deciding those cases, the courts necessarily considered the same factual and legal issues presented by the Parents & Students cases.  In light of the judicial rulings so far in these “bathroom wars” cases, a consensus seems to have emerged in the federal judiciary that is part of a larger movement in the law in the direction of recognizing transgender civil rights claims under both the Equal Protection Clause in constitutional law and the statutory bans on discrimination because of sex.

In addition to ADF’s attorneys and the attorneys defending the school district, the court heard from ACLU attorneys representing the interests of transgender students in the Boyertown School District, including lead attorney Leslie Cooper with the ACLU LGBT Rights Project, lead attorney Mary Catherine Roper with the ACLU of Pennsylvania, and cooperating attorneys from Cozen O’Connor, a Philadelphia law firm.