On 01 March 2013, Robert Ingelsoll strolled into Arlene’s Flowers in Richland, WA. He was a gay man. The shop owner, Barronelle Stutzman, knew him. He’d been a good customer for over nine years and had bought flowers from her shop perhaps 20 times. Ingelsoll estimated he’d spent around $4,500 in her store over the years.
Stutzman knew him to be gay, and had knowingly made and fashioned numerous floral arrangements for Ingelsoll over the years for events such as birthdays, Valentine’s Day and anniversaries. On these occasions, Stutzman was aware Ingelsoll intended these arrangements for his romantic partner, Curt Freed.1
Today, however, was different. Ingersoll was planning his wedding, and he wanted Arlene’s Flowers to handle the floral arrangements. At a later deposition, Stutzman explained how the conversation went:2
Q: Tell me what you remember about your conversation with [Ingelsoll].
A: He came in and we were just chitchatting, and he said that he was going to get married. Wanted something really simple, khaki I believe he said. And I just put my hand on his and told him because of my relationship with Jesus Christ I couldn’t do that, couldn’t do his wedding.
Q: Did you tell him that before he finished telling you what he wanted?
A: He said it was going to be very simple.
Q: Did he tell you what types of flowers he would want?
A: We didn’t get into that.
Ingersoll had substantially the same recollection:3
A: Just some sticks or twigs in a vase and then we were going to do candles. We wanted to be very simple and understated.
Q: Did you tell Barronelle that you wanted to do sticks or twigs?
A: Barronelle never gave me the opportunity to discuss the flower arrangements.
Ingersoll left, angry and humiliated. He and his partner filed a complaint with the Consumer Protection division of the Washington State Attorney General’s Office (“AGO”), which sent Arlene’s Flowers a letter of warning about discrimination based on sexual orientation. It asked her to sign and acknowledge she would cease her discriminatory practices. Stutzman declined to sign the letter.
The AGO then filed a lawsuit in Benton County Superior Court (“Benton County”), alleging Arlene’s Flowers violated Washington State law. The lawsuit explained that Ingelsoll’s sexual orientation “was a substantial factor” in Stutzman’s refusal to sell him flowers, and she thus “discriminated against Mr. Ingelsoll based on his sexual orientation …”4
On 18 February 2015, Benton County issued a summary judgment against Arlene’s Flowers for violating the Washington State Consumer Protection Act. Arlene’s Flowers appealed to the Washington State Supreme Court (“the Court”), which agreed with Benton County in a decision issued on 16 February 2017.5 Stutzman appealed to the U.S. Supreme Court, which sent the case back to Washington on 25 June 20186 to determine how its ruling in the Masterpiece Cakeshop decision impacted the Arlene’s Flowers issue.
The issue in State vs. Arlene’s Flowers doesn’t hinge on Biblical texts or allegations of unfair treatment at the hands of so-called “liberals.” It hinges on three things; (1) the Washington State Constitution’s (“WA Constitution”) article concerning religious freedom, (2) the Washington Law Against Discrimination (“WLAD”), and (3) the Washington State Consumer Protection Act (“CPA”).
The nuts and bolts of the legal process aren’t sexy or quick; they involve a healthy amount of due process and a “fair shake” for both parties. To be sure, this “boring” business of bureaucracy doesn’t make for compelling FaceBook memes, or attention-grabbing headlines on cable news. But, it’s the process we have. It’s a fair process.
The three hinges
The WA Constitution’s position on religious freedom is clear; it’s also more emphatic than the U.S. Constitution.7 Freedom of conscience is “absolute,” and covers “all matters of religious sentiment, belief and worship.” This freedom “shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion.” This is clear enough.
But, the caveat reads, “the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.” This freedom of religion isn’t a cloak for debauchery, and it can’t provide cover for disturbing “peace and safety.” In other words, there’s a public good to consider. Clearly, this is the clause which will give Arlene’s Flowers problems as it argues its case.
The WLAD is part of a larger chapter on human rights, which WA law proclaims is an “exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state.”8 Already, we see the nexus to the caveat in the WA Constitution regarding religious freedom.
The relevant portion of the WLAD explains it’s an unfair practice to “commit an act which directly or indirectly results in any distinction, restriction, or discrimination … or the refusing or withholding from any person the admission, patronage … in any place of public resort, accommodation, assemblage, or amusement … regardless of race, creed, color, national origin, sexual orientation …”9 In fact, it states the right to be free from discrimination based on sexual orientation “is a civil right.”10 Moreover, it states people shall have “full enjoyment” of public commerce.11 So, in Washington State, if you’re engaged in public commerce, you can’t directly or indirectly commit an act which discriminates based on sexual orientation. This is clear.
As for the CPA, it declares, “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”12
The florist here, Stutzman, clearly believes the State is infringing on her right of free expression and religious liberty. So, this is the situation:
- The WA Constitution allows “absolute” freedom of conscience, but won’t permit this freedom to “justify practices inconsistent with the peace and safety of the state.”
- The WLAD exists “for the protection of the public welfare, health, and peace of the people of this state.” In other words, it exists (in part) to reasonably balance freedom of conscience for the public interest.
- The WLAD says Arlene’s Flowers cannot refuse patronage to a homosexual couple who request a floral arrangement for a wedding, based on that couple’s sexual orientation.
- The WLAD says the right to be free from discrimination based on sexual orientation is a civil right.
- The CPA says unfair practices in the conduct of trade and commerce are unlawful.
- Arlene’s Flowers refused to provide a floral arrangement for a homosexual wedding.
So, did Arlene’s Flowers violate WA law? It appears the State would have to prove the following:
- Did Arlene’s Flowers refuse a provide a floral arrangement for the homosexual wedding?
- Did Arlene’s Flowers refuse to provide this service because of the sexual orientation of the homosexual customer?
The first element is clear; it happened. The second is the crux of the matter. Even further, if Arlene’s Flowers did refuse to provide service because of the consumer’s sexual orientation, how should the State balance her convictions with the public good? How should it weigh the rights and consciences of both parties?
The Benton County Superior Court (“Benton County”) ruled that Arlene’s Flowers had violated the WLAD and the CPA by refusing to sell floral arrangements for a homosexual wedding. Arlene’s Flowers appealed, and the case went to the Court.
But, how did Benton County balance the tensions between freedom of religious conscience and the rights of the homosexual couple? It made several constitutional determinations about the application of the WLAD to the Arlene’s Flowers situation:
- Arlene’s Flowers’ right to free speech, under both the WA and U.S. Constitutions, were not violated.
- The right to free exercise of religion, under both the WA and U.S. Constitutions, were not violated.
- The right to free association, under the U.S. Constitution, was not violated.
Benton County wrote:
Stutzman cannot comply with both the law and her faith if she continues to provide flowers for weddings as part of her dulylicensed business … For over 135 years, the Supreme Court of the United States has held that laws may prohibit religiously motivated action, as opposed to belief. In trade and commerce, and more particularly when seeking to prevent discrimination in public accommodations, the Courts have confirmed the power of the Legislative Branch to prohibit conduct it deems discriminatory, even where the motivation for that conduct is grounded in religious belief.13
Ironically, had Stutzman given Ingelsoll the opportunity to explain what he wanted (i.e. sticks and twigs in a vase), she would have learned he did not intend to request an artistic arrangement at all — he simply wanted raw materials. Thus, Stutzman argued desperately, there is actually no dispute at all. Benton County was unmoved, and noted, “The Defendants post hoc understanding of what Ingelsoll may have wanted cannot undo the refusal.”14
This case, like the Masterpiece Cakeshop decision, forces thinking Christians to go beyond cable news caricatures, social media memes, and tired “talking points.” More specifically, it forces Baptists to think about the principles of religious liberty and freedom of conscience in a very practical way. How committed are we to freedom of expression? To freedom of worship? To freedom of conscience?
In 2013, Os Guinness argued:
[F]reedom of thought, conscience, religion and belief is for all religious believers and is opposed to none. On the other hand, and let there be no misunderstanding here, it reaches out to secularists too, and to any who do not believe in God, gods or the supernatural. Soul freedom includes all ultimate beliefs and worldviews, whether religious or nonreligious, transcendent or naturalistic.15
What should a convictional Baptist think about that statement? And, thus, what should he think about Robert Ingersoll and Arlene’s Flowers?
In the next installments, we will briefly examine some of the key findings from the Washington State Supreme Court decision and make some applications for religious freedom in a contemporary society.
1 Benton County Superior Court, “Order for Summary Judgment,” case no. 13-2-00871-5, dated 18 February 2015, pgs. 6-7. Retrieved from the Washington State Attorney General’s website, on 04 November 2018, at https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Home/News/Press….
2 Ibid, pg. 8.
3 Ibid, pgs. 8-9.
4 Benton County Superior Court, “Complaint for Injunctive and Other Relief Under the Consumer Protection Act,” filed on 09 April 2013. Retrieved from the WA AGO’s website at https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Home/About_the_Office/Cases/Arlenes/Complaint%202013-04-09.pdf.
6 WA AGO, “US SUPREME COURT ASKS WASHINGTON SUPREME COURT TO REVIEW ARLENE’S FLOWERS CASE.” Retrieved on 04 November 2018 from https://www.atg.wa.gov/news/news-releases/ag-us-supreme-court-asks-washington-supreme-court-review-arlene-s-flowers-case.
7 Washington State Constitution, Article 11 “Religious Freedom.” Retrieved from http://leg.wa.gov/lawsandagencyrules/documents/12-2010-wastateconstitution.pdf on 04 November 2018. The article contains more text, but this is the relevant excerpt.
8 Revised Code of Washington (“RCW”) 49.60.010. Retrieved from http://app.leg.wa.gov/RCW/default.aspx?cite=49.60.010 on 04 November 2018.
9 RCW 49.60.215(1).
10 RCW 49.60.030(1).
11 See RCW 49.60.030(1)(b). The term “full enjoyment” means, “the right to purchase any service, commodity, or article of personal property offered or sold on, or by, any establishment to the public, and the admission of any person to accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement, without acts directly or indirectly causing persons of any particular race, creed, color, sex, sexual orientation, national origin, or with any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability, to be treated as not welcome, accepted, desired, or solicited,” (RCW 48.60.040).
12 RCW 19.86.020. Retrieved from http://app.leg.wa.gov/RCW/default.aspx?cite=19.86.020 on 04 November 2018. For definitions on the terms from the text, see RCW 19.86.010.
13 Benton County Superior Court, “Order for Summary Judgment,” pg. 58.
14 Ibid, pgs. 2-3.
15 Os Guinness, The Global Public Square: Religious Freedom and the Making of a World Safe for Diversity (Downers Grove: IVP, 2013), 29.