New York Law School

Art Leonard Observations

Posts Tagged ‘Washington Supreme Court’

Alliance Defending Freedom Asks Supreme Court to Revisit Religious Exemption Issue

Posted on: October 1st, 2019 by Art Leonard No Comments

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.

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.

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.