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Washington State Supreme Court Unanimously Reaffirms Liability of Florist Who Refused Flowers for a Same-Sex Wedding

Posted on: June 7th, 2019 by Art Leonard No Comments

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.”

Washington Supreme Court Unanimously Rules Against Florist Who Refused Flowers for Same-Sex Wedding Ceremony

Posted on: February 17th, 2017 by Art Leonard No Comments

 

Continuing an unbroken string of appellate rulings finding that small businesses cannot refuse to supply goods or services for same-sex marriages in jurisdictions that ban sexual orientation discrimination, the nine members of the Supreme Court of the State of Washington unanimously ruled on February 16 that Barronelle Stutzman, proprietor of Arlene’s Flowers, Inc., and her business, violated the Washington Law Against Discrimination (WLAD) and the state’s Consumer Protection Act, and had no constitutional right to do so based on her religious beliefs. State of Washington v. Arlene’s Flowers, 2017 Wash. LEXIS 216, 2017 WL 629181.

This ruling follows a string of losses by businesses that sought to rely on religious objections to refuse wedding-related services to same-sex couples, involving a photographer in New Mexico (Elane Photography v. Willock, 309 P.3d 53 (N.M. 2013)), a baker in Colorado (Mullins v. Masterpiece Cakeshop, 370 P.3d 272 (Col. App. 2015)), and a farm that provided a venue for weddings in upstate New York (Gifford v. McCarthy, 23 N.Y.S.3d 422 (N.Y. App. Div. 2016)).  So far, no final court decision has ruled in favor of a for-profit business claiming a right to discriminate against same-sex couples in connection with their weddings, either under the federal and/or state constitutions or under a state’s Religious Freedom statute.  Washington State does not have such a statute, so Ms. Stutzman’s case came down to two questions: whether her refusal of services violated the public accommodations and consumer protection statutes, and whether she was privileged to withhold her services by the 1st Amendment of the U.S. Constitution or an equivalent provision of the Washington Constitution.

Robert Ingersoll and Curt Freed had been living together in what the opinion by Justice Sheryl Gordon McCloud calls “a committed, romantic relationship” for several years. Over those years they had been regular customers of Arlene’s Flowers, spending by their estimate as much as $1,000 total at the store.  After the Washington legislature passed a bill allowing same-sex marriages in 2012, Freed proposed to Ingersoll and they planned to marry on their ninth anniversary in September 2013 with a large reception at a major event venue, “complete with a dinner or reception, a photographer, a caterer, a wedding cake, and flowers.”  Naturally, Ingersoll went to Arlene’s Flowers to make arrangements, anticipating no problems because the owner, Ms. Stutzman, knew him and Curt, knew they were gay, and had dealt with them many times.  They considered Arlene’s Flowers to be “their florist.”

So it was a big surprise when Stutzman told Ingersoll that she could not do the flowers for their wedding because of “her relationship to Jesus Christ.” Indeed, the conversation did not even get as far as discussing what kind of flowers or floral arrangements the men wanted, or whether Stutzman was being asked to deliver and set up floral arrangements at an event venue or just to prepare them to be picked up at her store.

The story quickly got media play after Ingersoll posted about it on his facebook.com page, inspiring the state’s Attorney General Bob Ferguson to initiate litigation against Stutzman and her business, and Ingersoll and Freed filed their own complaint. The cases were combined in Benton County Superior Court, where the trial judge granted summary judgment against Stutzman.

The analysis by the court will be familiar to anybody who has been following this issue as it has unfolded in parallel with the advance of marriage equality. Courts have generally rejected the argument made by Stutzman that refusing to do business with same-sex couples in connection with their marriages is not sexual orientation discrimination because the refusal has to do with “conduct” (a wedding) rather than “status” (sexual orientation).  The Washington court decisively rejected this argument, advanced by lawyers from Alliance Defending Freedom, the organization that has been involved in the other cases mentioned above and which is petitioning the Supreme Court to review the Colorado baker case.  So the major focus of the case is not on whether she violated the statutes, that being easily decided, but rather on whether she was privileged to do so because of constitutional protection for her freedom of religion, speech or association.

Most civil rights laws include provisions exempting religious institutions and their clergy from complying to the extent that their doctrines would be violated, but the exemptions usually do not extend to private, for-profit businesses. The Supreme Court of the United States ruled in the Hobby Lobby case, consistent with prior decisions going back to the 1990s, that the 1st Amendment does not require the government to exempt businesses from complying with statutes of general application, such as civil rights laws or, in that case, the Affordable Care Act.  However, under the federal Religious Freedom Restoration Act (RFRA), a statute enacted in response to the Supreme Court’s religious freedom ruling, the Supreme Court found that a for-profit business may be entitled to claim an exemption from complying with a federal statute or regulation because of the religious views of the owners of the business.  The test in such a case would be whether the challenged statute imposes a substantial burden on the free exercise rights of the business, and then whether the government has both a compelling interest for the statute and has adopted the least intrusive means of achieving that interest.

Washington State does not have a RFRA, so Stutzman was limited to making constitutional claims. The court rejected her argument that her floral arrangements were the kind of artistic creations entitled to free speech protection, or that requiring her to design and supply floral arrangements for a wedding ceremony of which she disapproved would burden her freedom of association.  The court conceded that requiring her to devise floral decorations for such an event would burden her free exercise of religion, but found that the state’s compelling interest in protecting all its residents from discrimination in places of public accommodation clearly outweighed the incidental burden on religion.

“As applied in this case,” wrote Justice Gordon McCloud, “the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman’s religious free exercise, the WLAD does not violate her right to religious exercise under either the First Amendment or article I, section 11 [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.”

When the court refers to a “neutral law,” it means a law that does not expressly target religion and was not enacted for the specific purpose of imposing a burden on religion. A law that, in general, forbids all public accommodations from discrimination because of sexual orientation or gender identity, is such a “neutral law.”  Of course, one notes, religiously-inspired advocates such as Alliance Defending Freedom would argue that it is not neutral, and that legislators adopt those laws knowing that they will burden religious believers, because testimony to that effect is usually presented in legislative hearings and the argument is made during legislative debate.  But the courts generally will not attribute a discriminatory intent to the legislature as a whole on the basis of such testimony and arguments.

Stutzman had argued that her refusal to “do” the flowers for the wedding was not a serious problem for the two men because she suppled Ingersoll with the names of other florists who would readily do it, and in fact after this case got publicity several florists contacted Ingersoll and Freed and volunteered to provide flowers for their wedding. In the event, the men were so affected by what had happened to them that they dropped their plans for a big wedding ceremony and instead had a small private event with minimal fuss. The court said that being able to get flowers was not really the issue in this case.  Rather, it was about the violation of civil rights stemming from a denial of services because the customers were a gay couple.  Indeed, in her deposition Stutzman conceded that she would happily supply flowers for a Muslim wedding or a wedding for atheists, making clear that her objections here focused on the fact that it was for a “gay wedding.”  It was not relevant that she claimed she was not homophobic and happily sold flowers to Ingersoll and Freed when it was not for a wedding.  That was not the point of the case.

The timing of this decision is particularly interesting, because the Supreme Court was scheduled to discuss whether to grant review of the Colorado baker case on February 17, having listed it at two of the Court’s prior conferences and having sent for and received the full record from the state courts just recently. If the Court made a decision to review that case at the February 17 conference, it would probably be announced on Tuesday, February 21.

The ACLU of Washington has been involved in representing Ingersoll and Freed in this case. A spokesperson for Alliance Defending Freedom, representing Stutzman, announced that they would petition the Supreme Court to review this case as well as the Colorado baker case.