Alliance Defending Freedom (ADF), a religious freedom litigation group, is asking the Supreme Court to take a second look at Arlene’s Flowers v. State of Washington, No. 19-333 (Docketed September 12, 2019), in which the Washington Supreme Court held that a florist who refused to provide her usual custom floral design and installation wedding services for a same-sex couple had violated the state’s anti-discrimination law, and did not have a valid 1st Amendment defense. The Washington court’s original decision was vacated by the Court in June 2018 for reconsideration in light of the Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), but the Washington Supreme Court reiterated its earlier holding, 441 P.3d 1203 (Wash. 2019), finding that the record of proceedings in the Superior Court and the Supreme Court in the earlier litigation showed no evidence of hostility to religion and thus was not affected by the Supreme Court’s ruling in Masterpiece.
The Petition proposes two questions for review: 1. Whether the State violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and 2. Whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
In the first question, the Petitioner asks the Court to take up the underlying constitutional issues in Masterpiece Cakeshop, which the Court evaded in its opinion, and to resolve them once and for all, pointing to litigation from around the country in which small businesses had declined to provide goods or services for same-sex weddings, based on the religious beliefs of the proprietors, and had been hauled into state human rights commissions or courts on charges of violating anti-discrimination laws. There have been mixed results in these cases. Beginning with a recalcitrant wedding photographer in New Mexico and continuing with cases involving bakers, florists, commercial wedding venues, stationers and videographers, administrative agencies and courts consistently ruled against allowing religious belief exemptions from generally-applicable anti-discrimination laws covering sexual orientation. However, more recently, there has begun what may be a pendulum swing in the opposite direction, sparked in part by persistent appeals by ADF from adverse administrative and trial court rulings in affirmative litigation seeking declaratory judgments to establish religious exemptions.
In Masterpiece, the Court found several grounds taken together upon which to reverse the Colorado Court of Appeals’ ruling against the baker, most notably characterizing some public comments by Colorado commissioners that the Court found to evidence open hostility to the baker’s religious views. The Court also noted an inconsistency in the Colorado Commission’s dismissal of complaints against bakers by a religious provocateur who sought to order cakes decorated to disparage same-sex marriages and was turned down. The Court also noted that at the time the couple approach the baker, same-sex marriage was not yet legal in Colorado, so the baker could have believed he had no obligation to make such a cake. While reasserting the general principle that businesses do not enjoy a religious freedom exemption from complying with public accommodation anti-discrimination laws, the Court observed that litigations raising religion freedom claims are entitled to a “neutral” forum to decide their cases, not one evidencing hostility to their religious views.
In Arlene’s Flowers, ADF had filed a statement with the Court after Masterpiece suggesting that evidence of hostility could be found in that case, and the Washington Supreme Court took the remand as a charge to scour the record for signs of such, which it did not find. The Washington court read Masterpiece to be focused solely on the hostility or non-neutrality of the forum deciding the case. That case did not involve a hearing before an administrative agency, as the first decision was by the trial court.
In its second proposed question, ADF argues that this was error by the Washington Supreme Court, contending that while the Masterpiece ruling was based on open hostility by commissioners, it could not properly be read to impose a ban on governmental hostility only on government actors performing the function of adjudicating cases. ADF argues that the Attorney General of Washington evinced hostility and discrimination against religion by seizing upon news reports to come down hard on the florist, threatening litigation if she did not certify that in future should would provide her services to same-sex couples for weddings, making public comments criticizing religious objection to providing such services, and failing to bring similar action based on news reports about a coffee-shop owner expelling “Christians” from his establishment “based on religious views they expressed on a public street.” ADF also criticized as “unprecedented” the Attorney General’s action in suing under the state’s Consumer Protection Law as well as the anti-discrimination law.
The Petition’s statement of facts is artfully written to suggest a saintly woman who loves gay people and happily sells them flowers for a variety of occasions, but just balks at providing custom weddings services based on her sincerely-held religious beliefs. It argues that there is no evidence in the record of hostility toward gay people by the florist, emphasizing the long relationship she had selling floral goods to the men whom she turned down for wedding-related services, and maintaining that she had not turned down their business because they were gay but rather due to her religious objections to their wedding, and trying to draw that distinction as requiring dismissal of the discrimination complaint entirely.
The Petition argues that the Washington Supreme Court took too narrow a view of the Supreme Court’s doctrine concerning the obligation of the government to refrain from hostility towards religion, pointing to cases where the Court had found legislatures as well as adjudicators to have violated the 1st Amendment, and argued that executives, such as the Attorney General, were no less bound by the First Amendment. The Petition builds on a recent ruling by the 8th Circuit in the videographer case reported last month, Telescope Media Group v. Lucero, 2019 WL 3979621 (Aug. 23, 2019), and seeks to position the Petitioner, a florist, in the same category of First Amendment expression. In effect, the Petition asks the Court to hold that any business that engages in creative expression for hire cannot be compelled to provide its services for an activity of which it disapproves on religious grounds.
Without making it a central part of the argument, the Petition notes several instances in which various members of the Court have suggested a need to reconsider its long-standing precedent in Employment Division v. Smith, 494 U.S. 872 (1990), intimating that this is the ideal case to do so. That was the case that reversed decades of 1st Amendment free exercise precedents to hold that religious objectors do not enjoy a privilege to refuse to comply with religiously-neutral state laws of general application that incidentally may burden their free exercise of religion. Employment Division prompted Congress to pass the Religious Freedom Restoration Act, applying the pre-Employment Division caselaw to the interpretation of federal statutes, and leading many states to pass similar laws. A ruing overruling Employment Division and reinstating prior would law would, in effect, constitutionalize the Religious Freedom Restoration Act, making it more difficult in many cases for LGBTQ people suffering discrimination to vindicate their rights through legislative action, since the state and federal legislatures cannot overturn a Supreme Court constitutional ruling.