The nine-member Washington State Supreme Court refused on June 6 to back down from its earlier decision that Barronelle Stutzman and her business, Arlene’s Flowers, Inc., violated the state’s anti-discrimination and consumer protection laws on February 28, 2013, when she told Robert Ingersoll that she would not provide floral arrangements for his wedding to Curt Freed. The court also ruled that Stutzman had no constitutional privilege to violate the state’s anti-discrimination law based on her religious beliefs. State of Washington v. Arlene’s Flowers, Inc., 2019 Wash. LEXIS 333, 2019 WL 2382063.
The Washington Law Against Discrimination (WLAD) prohibits sexual orientation discrimination in public accommodations, and the people of Washington voted in a referendum in 2012 to overrule a 5-4 adverse decision by their state supreme court and allow same-sex couples to marry.
Stutzman quickly announced that she would attempt to appeal the new ruling to the U.S. Supreme Court, which for several months has been pondering whether to grant review in another “gay wedding cake” case, from Oregon. She rejects the court’s opinion that that the Washington courts had “resolved this dispute with tolerance,” according to Justice Sheryl Gordon McCloud’s opinion for the unanimous court.
The Washington court originally ruled on this case on February 16, 2017,see 167 Wash. 2d 804, but Alliance Defending Freedom (ADF), the anti-gay litigation group representing Arlene’s Flowers, petitioned the U.S. Supreme Court to review the case, arguing that the state was violating Stutzman’s First Amendment rights of free exercise of religion and freedom of speech. That petition reached the Supreme Court while it was considering the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the “gay wedding cake” case.
The U.S. Supreme Court had been asked in Masterpiece to reverse rulings by the Colorado Court of Appeals and the Colorado Civil Rights Commission, which had ruled that baker Jack Phillips violated the state’s anti-discrimination law by refusing to make a wedding cake for a same-sex couple. Phillips argued on appeal that his 1st Amendment rights to free exercise of religion and freedom of speech were unconstitutionally violated by the state proceedings. The Supreme Court ruled, in an opinion by Justice Anthony Kennedy, that the Colorado Civil Rights Commission had not provided Phillips with a respectful, neutral forum to consider his religious freedom claim. See 138 S. Ct. 1719 (2018). The Court reversed the Colorado court and commission rulings on that basis, focusing particularly on comments made by Commission members during the public hearing in the case, as well as the fact that at the time Phillips rejected the business, Colorado did not allow same-sex weddings so Phillips could have thought that he was not obligated to provide a wedding cake for such an event. The Court did not rule directly on Phillip’s constitutional claims of privilege to violate the anti-discrimination statute, although it observed that in the past it had not accepted religious free exercise defenses to discrimination charges.
The Masterpiece decision was announced on June 4, 2018. On June 6, ADF filed a Supplementary Petition with the Supreme Court, arguing that the case should be sent back to the Washington Supreme Court for “reconsideration” in light of Masterpiece. In various different lawsuits, ADF has been trying to “spin” Masterpiece Cakeshop as what it is not: a decision that businesses have a 1st Amendment right to refuse to provide goods or services for same-sex weddings. In its Supplementary Petition to the Court, however, reacting to the Court’s Masterpiece opinion, ADF asserted that Stutzman, like Colorado baker Jack Phillips, had been subjected to a forum that was “hostile” to her religious beliefs.
The U.S. Supreme Court granted ADF’s request, vacating the Washington Supreme Court’s 2017 decision and sending the case back with instructions to “further consider” the case “in light” of Masterpiece Cakeshop. The Washington court took exactly a year from the date of ADF’s Supplementary Petition to produce a lengthy decision explaining why there was no reason to change its original decision.
The Washington court was flooded with amicus briefs, as the U.S. Supreme Court had been, as many saw this as the next major “culture wars” case around the issue of same-sex marriage and religious exemptions from anti-discrimination laws
After Stutzman told Ingersoll, a longtime customer of her business, she would not sell him flowers for his wedding, his fiancé, Freed, put up an indignant post on his Facebook page and the story went viral, quickly drawing the attention of the Attorney General’s office, which sent Stutzman a letter, asking for her to agree in writing not to discriminate against customers based on their sexual orientation. She has argued throughout the case that she did not discriminate based on sexual orientation, as she had happily sold Ingersoll flowers in the past and would do so in the future, but not for a same-sex wedding due to her religious belief that marriage was only between a man and a woman. When Stutzman refused to sign the statement requested by the letter, the Attorney General filed suit in Benton County Superior Court. Several days later, Ingersoll and Freed filed their own lawsuit, represented by the ACLU of Washington, and the cases were consolidated by the court, which ruled against Stutzman on February 18, 2015.
Justice McCloud explained the Washington Supreme Court’s understanding of the holding of the U.S. Supreme Court in Masterpiece: “In Masterpiece Cakeshop, the Supreme Court held that the adjudicatory body tasked with deciding a particular case must remain neutral; that is, the adjudicatory body must ‘give full and fair consideration’ to the dispute before it and avoid animus toward religion. Disputes like those presented in Masterpiece Cakeshop and Arlene’s Flowers ‘must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.’”
Under this standard, wrote McCloud, there was no basis for the Washington court to change its opinion. “We have painstakingly reviewed the record for any sign of intolerance on behalf of this court or the Benton County Superior Court, the two adjudicatory bodies to consider this case,” she wrote. “After this review, we are confident that the two courts gave full and fair consideration to this dispute and avoided animus toward religion.”
Because the Supreme Court had vacated the earlier decision, however, the court’s new opinion incorporates its entire analysis from the earlier decision. In a footnote, Justice McCloud wrote, “The careful reader will notice that starting here, major portions of our original (now vacated) opinion are reproduced verbatim.”
However, the opinion also responds to arguments that ADF tried to make building on Masterpiece, attempting to persuade the court that Stutzman was sued because of hostility to her religious beliefs by the Attorney General. The court refused to take the bait. McCloud wrote, “Apparently realizing the limits of Masterpiece Cakeshop, appellants attempt to stretch its holding beyond recognition and to relitigate issues resolved in our first opinion and outside the scope of Masterpiece Cakeshop. We reject this attempt and instead comply with the Supreme Court’s explicit mandate to ‘further consider’ our original judgment ‘in light of Masterpiece Cakeshop.’”
Consistent with that, the court denied motions by both ADF and the Attorney General’s office to supplement the record, finding that the additional materials being offered to the court were not relevant to the task it had been set by the Supreme Court.
ADF was trying to make something of an entirely unrelated incident that occurred while this case was pending, when it was reported that the owner of a café in Seattle had “expelled a group of Christian customers visiting his shop” but that despite publicity to the incident the Attorney General had not taken any action against the owner of the café. ADF sought to draw an analogy to an incident Justice Kennedy relied upon in concluding that the Colorado Civil Rights Commission was hostile to religion. The Commission had refused to proceed against several Colorado bakers who had rejected an order from a provocateur named William Jack, who sought to order cakes inscribed with anti-gay symbolism. “The crux of appellants’ argument is that the attorney general sought to enforce the WLAD in the case before us but not in the incident at the coffee shop,” wrote McCloud, “revealing ‘hostility towards Mrs. Stutzman’s beliefs.’”
The Washington court agreed with Ingersoll and Freed, who argued that the attorney general’s response to the coffee shop incident was irrelevant. That was a prosecutorial decision, not an adjudicatory decision. “As discussed above,” wrote McCloud, ‘the Supreme Court in Masterpiece Cakeshop held that the adjudicatory body tasked with deciding a particular case must remain neutral. That Court was explicitly sensitive to the context in which the lack of neutrality occurred: during the adjudication by the adjudicatory body deciding the case.” The Attorney General here was acting as attorney for a party in the case – the state of Washington – and not as an adjudicator.
“It would take a broad expansion of Masterpiece Cakeshop to apply its holding – that the adjudicatory body hearing a case must show religious neutrality – to a party. That is especially true here, where the party supposedly exhibiting antireligious bias is Washington’s attorney general,” wrote McCloud. “By arguing that Masterpiece Cakeshop’s holing about adjudicatory bodies applies to the attorney general’s enforcement decision, appellants essentially seek to revive their selective-enforcement claim, a claim that was rejected by the superior court, and abandoned on appeal.”
The court pointed out that prosecutorial discretion leaves it to the judgment of prosecutors deciding which cases to bring. “Courts are wary to question a prosecutor’s decision of which claims to pursue and thus generally ‘presume that prosecutors have properly discharged their official duties.’” The court rejected ADF’s seeming argument that selective enforcement claims implicating free exercise of religion defenses should not be subjected to the same “demanding standard to which all other selective-enforcement claims are subject.”
The court also pointed out that because this is a consolidation of two cases, ADF’s argument is beside the point, since it has nothing to do with plaintiffs Ingersoll and Freed. A “selective enforcement” claim has no relevance to a lawsuit brought by private individuals who are victims of discrimination.
Most of the court’s opinion, however, was devoted to restating the legal analysis from its 2017 decision, finding that the First Amendment and Washington state constitutional provisions did not provide a shield for Stutzman against the discrimination charges. Interestingly, the Washington courts have found that their state constitution provides greater protection for free speech and free exercise of religion than the U.S. Supreme Court has found in the 1st Amendment, but even under those more demanding standards, the court rejected Stutzman’s state constitutional defenses. The state has a compelling interest to prevent discrimination by businesses, reiterated the court.
“Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation,” McCloud concluded. “We therefore hold that the conduct for which Stutzman was cited and fined in this case – refusing her commercially marketed wedding floral services to Ingersoll and Freed because theirs would be a same-sex wedding – constitutes sexual orientation discrimination under the WLAD. We also hold that the WLAD may be enforced against Stutzman because it does not infringe any constitutional protection. As applied in this case, the WLAD does not compel speech or association.” And, even if the court assumed that application of the WLAD “substantially burdens Stutzman’s religious free exercise,” that did not violate the First Amendment or the analogous provision of the Washington constitution, “because it is a neutral, generally applicable law that serves our state government’s compelling interest in eradicating discrimination in public accommodations.”