On Thursday, the Washington Supreme Court unanimously rejected a florist’s assertion that she had not discriminated against a same-sex couple when she refused to provide flowers for their wedding—and that, even if she had, she held a constitutional right to do so.
The florist, Barronelle Stutzman, rose to fame in 2013 after she informed Robert Ingersoll, a gay customer, that she would not sell him flowers for his upcoming wedding because of “her relationship with Jesus Christ.” Stutzman explained that her religious beliefs precluded her from providing flowers for same-sex ceremonies. Ingersoll and his partner sued under Washington nondiscrimination law, which prohibits discrimination on the basis of sexual orientation, and the state attorney general asked Stutzman to stop discriminating against gay customers. Stutzman refused, and the state sued as well. A trial court ruled against Stutzman, fining her $1001 and ordering her to stop discriminating. She appealed all the way to the state Supreme Court, which has now affirmed the trial court’s judgment.
Stutzman first claimed that she hadn’t actually discriminated on the basis of sexual orientation, because she is willing to serve gay customers, just not those who are getting married. The court dismissed this defense as an untenable “distinction between status and conduct” that makes no sense because the conduct (getting married to a same-sex partner) is “fundamentally linked” to status (being gay). Moreover, the court explained, the Washington statute guarantees “full enjoyment” of public accommodations and prohibits “all discriminatory acts,” including those that “directly or indirectly” result in “any distinction, restriction, or discrimination” based on sexual orientation. This sweeping language obviously bars businesses from turning away same-sex couples planning a wedding as such discrimination creates a distinction on the basis of their sexual orientation that directly deprives them of the business’ services.
Next, Stutzman alleged that she has a free speech right to turn away same-sex couples as selling floral arrangements for profit amounts to “expression” protected by the First Amendment. The court determined that making and selling these arrangements is conduct, not speech, but noted that certain expressive conduct still holds some constitutional protection. Creating bouquets, the court concluded, does not fall into this category as it is not “inherently expressive” and does not send a message of any sort. Moreover, the Supreme Court has limited its expressive conduct decisions to noncommercial activity, like marching in a parade. Stutzman sells flowers for money—and “her store,” the court wrote, “is the kind of public accommodation that has traditionally been subject to antidiscrimination laws.”
Stutzman has a very strange backup argument: She insists that the court should create a new “narrow” rule that would let only “businesses, such as newspapers, publicists, speechwriters, photographers, and other artists, that create expression” discriminate against same-sex couples. But as an amicus brief filed by Americans United for Separation of Church and State points out, this rule “would create a ‘two-tiered system’ that carves out an enormous hole from public accommodations laws,” under which “a dime-store lunch counter would be required to serve interracial couples but an upscale bistro could turn them away.” Because this bifurcation of nondiscrimination law has no basis in free speech jurisprudence—and would undermine the very purpose of public accommodation statutes—the court properly rejected it.
Perhaps Stutzman’s least risible defense is her religious freedom claim. Stutzman alleges that Washington has violated her free exercise rights under the First Amendment by forcing her to violate her religious beliefs. Unfortunately for Stutzman, the Free Exercise Clause permits neutral laws of general applicability—even if they have the practical effect of burdening religious liberty. The Washington statute at issue here is obviously such a law. There is no evidence that it was designed to target Christians like Stutzman, and it applies broadly to all businesses. Stutzman sought a new exemption to this rule, permitting discrimination in public accommodations, but the court sensibly declined to create one.
Finally, Stutzman asserted that she holds a right to discriminate under Washington’s own constitution, which arguably provides greater protections for religious liberty than the First Amendment. The court “emphatically” rejected this argument. Even if the court applied the strictest of scrutiny to Washington’s nondiscrimination law, it noted, Stutzman’s defense would still fail because the law is narrowly tailored to serve an overwhelmingly important public interest.
“As every other court to address the question has concluded,” the court held in the decision’s most incisive passage, “public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.”
This decision is a remarkable victory for nondiscrimination law and a stinging rebuke of the sophistic reasoning concocted by anti-gay advocates to justify this form of discrimination. It functions as a sort of mini-treatise on the clash between religious liberty and minority rights, concluding that strong public accommodation law may constitutionally co-exist with religious freedom. Stutzman may be a very sympathetic defendant, but she is also a business owner who sells goods to make a profit. She wanted to hold herself above the law. And the Washington Supreme Court correctly refused to let her.