Bad Florist? The Arlene's Flowers Case (Part 1)
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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 conundrum
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 ruling
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
Who cares?
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.
Notes
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.
5 Washington State Supreme Court, “State vs Arlene’s Flowers,” No. 91615-2. Retrieved on 04 November 2018 from https://bit.ly/2Ryjpap.
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[14]).
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.
Tyler Robbins 2016 v2
Tyler Robbins is a bi-vocational pastor at Sleater Kinney Road Baptist Church, in Olympia WA. He also works in State government. He blogs as the Eccentric Fundamentalist.
- 33 views
Some things that should be kept distinct: the seller’s professionalism vs. the state’s right to compel conscience.
Obviously, the seller shouldn’t have freaked out. There’s probably no law against having a stupid moment, though.
It’s not clear to me what the import of state of Washington’s laws are on this, but it’s clear what they should be. A seller who has demonstrated history of willingly doing business with an individual, fully aware of his sexual ethics, should not be convicted of discriminating against him on the basis of his sexual ethics. It’s pretty obviously about the wedding and the seller not wanting to have any part of it. Her history with the would be buyer shows that in the seller’s mind, it’s not about a category of human being being turned away, but a particular ceremony the seller sees as sacred. The state should not have the power to force the seller to behave in a way that she sees as endorsing the ceremony.
As for what the would be buyer actually wanted, it’s not clear to me whether it’s relevant. Maybe it is under the state law. I’m inclined to argue that the seller shouldn’t be compelled by the state to complete a transaction she sees as an endorsement of a religious ceremony contrary to her beliefs… regardless of whether there would have been a creative act or just a provision of materials.
So, the professional blunder is one thing, the legal case another.
The other important distinction is the ethicality/wisdom issues vs. the legal issues. I wouldn’t personally see myself as responsible for what a buyer intends to do with supplies I provide. Even if they declared their intention to take the supplies home and use them to murder their spouse, I’d complete the sale and call the cops. But in retail, you have no choice but to draw some lines between what you sell and what people do with it.
If I were asked to create something for the wedding, though, that would be different. That’s a much more personal act, a custom made product inherently freighted with personal beliefs and values of both the creator and the buyer.
But again, how we ought to think about the business and marriage ethics is a separate question from what the state ought to have the power to require.
Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.
Aaron wrote:
But again, how we ought to think about the business and marriage ethics is a separate question from what the state ought to have the power to require.
Not necessarily. That’s only true if you believe the State laws exist to harm people. The State does seek to preserve freedom of conscience and religious freedom … for both parties. How do we do that?
This case (and others like it) is instructive because it takes us out of the clouds and into real life. We can all wax eloquent about ethics and morality in the abstract, but here it is with Arlene’s Flowers - right in front of us, in a real-world situation. Ethics, freedom of conscience, the public good, the State’s position … this is high drama. This is where the rubber meets the road.
Tyler is a pastor in Olympia, WA and works in State government.
But again, how we ought to think about the business and marriage ethics is a separate question from what the state ought to have the power to require.
Your response to this was “maybe.” The alternative is the proposition that everything unethical should also be illegal. What are your thoughts on that view?
Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.
I don’t understand your question. My point was that it’s an abstraction to discuss ethics for business owners without tackling the subject of how the State should enforce and regulate this conduct. This is the conversation I wish people would have - how should government handle these issues?
Was Stutzman right? Was she wrong? Does she have an obligation to serve anyone, if she’s engaged in public commerce? The State says she does; is that right? Why, or why not? If not, where is the line? Are we willing to enforce that line consistently, across the spectrum? Why or why not?
Tyler is a pastor in Olympia, WA and works in State government.
OK. Maybe my initial point on that wasn’t clear. What I often see in conversations on topics like these, is a blurring of two different questions:
- What should people do?
- What should the state have the power to force people to do?
I believe that keeping the distinction clear helps answer both questions, but especially the second one.
When it’s clear that not everything wrong should be illegal, it’s much easier to clearly see the importance of limiting government power over individual conscience.
In this case, the government should not have the power to require individuals to affirm a recently-invented social custom in violation of their religious beliefs.
If the tables were turned, and I decided to buy candles at a Wiccan crafts shop, and was dumb enough to tell them I wanted to use them for a Christian prayer service, I do not believe the state should be able to force the shop to sell the candles to me. They should be free to turn me away.
Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.
Here’s the problem:
- Everyone operates by a set of moral principles
- Some people have an explicit Christian moral framework, others aren’t sure what they have - but it’s likely a mix of Christianese and secularism
So, what set of moral guidelines should the State use when it decides what’s “right” and what’s “wrong?” We know the answer, but what do we have? We have a situation where the State uses secular reasoning, while (usually) genuinely trying to protect religious freedom. I don’t believe the Arlene’s Flowers situation is analogous to the Colorado Civil Rights Commission’s treatment of Jack Phillips.
So, what should a Christian expect the State to do in 2018? It’ll continue to use a secular moral framework to craft laws and regulations.
But, flip the script and try out a scenario or two:
- I’m certain the Congregationalist Church sincerely thought it was doing right when it persecuted Baptists in New England. They believed in a state church, and their actions dictated their laws and regulations. Baptists disagreed with this interpretation, and just wanted to be left alone to worship as they saw fit, without interference. Baptists celebrate religious freedom because it came so dear.
- So, can Baptists legitimately side with Arlene’s Flowers, here?
There are really two questions:
- Do we believe everyone, no matter who he is, should be allowed to live his own life without molestation or persecution? If so, how does this impact the homosexual couple, here?
- Do we believe that somebody engaged in public commerce abdicates some rights of freedom of conscience by virtue of operating a public establishment?
Tyler is a pastor in Olympia, WA and works in State government.
Mississippi RV park owners refused to rent to interracial couple
On Feb. 28, 2016, she arrived at the RV park and gave Baker a $275 check for rent for the month. “He was real nice,” she said. “He invited me to church and gave me a hug. I bragged on him to my family.” The next day, she said Baker telephoned her and said, “Hey, you didn’t tell me you was married to no black man.” She said she replied that she didn’t realize it was a problem. “Oh, it’s a big problem with the members of my church, my community and my mother-in-law,” she quoted him as saying. “They don’t allow that black and white shacking.” “We’re not shacking. We’re married,” she replied. “Oh, it’s the same thing,” she quoted him as replying. She said he told her, “You don’t talk like you wouldn’t be with no black man. If you would had come across like you were with a black man, we wouldn’t have this problem right now.” She said she replied, “My husband ain’t no thug. He’s a good man. My husband has served his country for 13 years. He’s a sergeant in the National Guard.”
“Public accomodation laws” really derive from our country’s habit of enshrining racism not only into slavery and Jim Crow—de jure laws—but also private contracts. My grandpa’s burial plot has one of them, actually. (I own the deed) Hence certain kinds of discrimination against protected classes are banned, and quite frankly, I’m surprised that churches didn’t run afoul of this—the pastor who did my wedding noted that when he was stationed in the South in the late 1960s and early 1970s, he skipped church after church after church spoke on the “spiritual” necessity of segregation.
And now homosexuals are becoming a protected class, and the result is giving us a great reason to look again at Romer v. Evans, the case that invalidated Colorado’s Amendment 2, which forbade adding homosexuals to the list of protected classes. Central in the decision was the notion that there was not a rational basis for the law—that harm would result if it were not retained. We obviously might find reason to dispute this now.
That noted, it’s doubtful that it would be overturned, as one of the lawyers who prepared pro bono services for the plaintiffs was none other than…..the current Chief Justice, John Roberts.
Aspiring to be a stick in the mud.
There are several places that courts have or should draw lines of distinction here. “Sincerely held beliefs” has never been the only standard.
None of the cases Jim linked to involved a business refusing to affirm a ceremony. Rather, they were cases of people in business rejecting individuals. I think in a few of these cases, though, we have examples of government overreach. Not everything that is “wrong” should be illegal, for many reasons. One of the biggest is that some matters commit the government to enforcing behavior that will inherently expand government power without clear boundaries on that expansion.
One place a boundary can be set is to acknowledge legally the difference between a transaction that harnesses speech/expression to events/actions vs. transactions that link to individuals of a particular race, ethnicity, etc.
Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.
[josh p]I think my views on this are considered “radical” on SI, if I remember correctly, but the state (whether federal or actual state) should not have the power to enforce a transaction at any level. As horrible as Jim’s RV park example is-it’s their property and they have a right to use it as they choose. Particularly when a person can demonstrate a long held religious belief (confessions are helpful here) it should be especially clear.
The ‘ought to be’ versus ‘the way things are’
- Josh says the ‘ought to be’ in this case is ‘it’s their property and they have a right to use it as they choose’ (I don’t agree with Josh on this but it’s not my point)
- ‘the way things are’ = can’t discriminate on race in housing
- For me I would follow the law on this
We would have to ask the proprietors about this, but it strikes me that if indeed the plaintiffs were just asking for sticks & such (are these guys unaware of “parks” where you can pick them up for free?), they’re arguably not asking for the florist to affirm the ceremony. Plus, I would dare suggest that if homosexuals use florists like heterosexuals do—I would bet a nickel or two on this, that it’s a romantic kind of deal—that a florist who sells flowers to a homosexual has affirmed their relationship in some way. For that matter, the florist who sells flowers to those living in sin has done the same.
Long and short of it, though, is that there appears to be some categorical difference between this and the cake-maker asked to make a “Congratulations Bobby and Steve on your wedding” cake. And the extended “dance track” point is that if you’re willing to help couples living in sin celebrate their relationships, the difference between doing that and doing it for homosexuals isn’t that big, Biblically speaking.
Aspiring to be a stick in the mud.
Stutzman made the distinction you mentioned in her defense, and I look forward to explaining it in a subsequent article.
Tyler is a pastor in Olympia, WA and works in State government.
” if indeed the plaintiffs were just asking for sticks & such (are these guys unaware of “parks” where you can pick them up for free?), they’re arguably not asking for the florist to affirm the ceremony.”
This is where the defense’s argument on this point actually makes sense. The prosecution can’t have it both ways: either the seller intentionally refused to affirm a ceremony or she accidentally rejected a person, thinking she was refusing to affirm a ceremony. But a misunderstanding of what the customer wanted is not a crime.
“Stutzman made the distinction you mentioned in her defense, and I look forward to explaining it in a subsequent article.”
The distinction is unavoidable, though rhetorical muddying of it is common enough. Does anybody believe all wrong behavior should be illegal? But the premise that ethical and legal are the same things forces that conclusion.
Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.
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