Bad Florist? The Arlene's Flowers Case (Part 2)

Read the series.

In the last article, I provided a brief overview of the State v. Arlene’s Flowers case in the State of Washington. In that instance, a Christian florist named Baronelle Stutzman in Richland, WA refused to provide floral arrangements for a same sex marriage. The WA Attorney General’s Office tried to compel Stutzman to provide service, she refused, and the Attorney General’s Office eventually filed suit against her. The case wound its way to the Washington State Supreme Court, which found for the homosexual couple. The matter was remanded back to Washington by the U.S. Supreme Court after it overturned Masterpiece Cakeshop v. Colorado Human Rights Commission (see my article on oral arguments from that case here).

This case is intriguing because, like the Obergefell and Masterpiece Cakeshop decisions, it’s a foil for how the issue of religious liberty is playing out in the courts. As we see the Court wrestle with the practical policy implications of these issues, the thinking Christians can learn a lot about how to address religious liberty concerns in the real world. 

Why do Stuzman’s actions violate the Washington State Law Against Discrimination (“WLAD”)? The Washington State Supreme Court (“the Court”) gave three reasons,1 two of which I’ll briefly address in this article.

The relevant portion of the WLAD2 forbids discrimination on the basis of (among other things) sexual orientation in a public accommodation context. So, if the evidence shows Stuzman turned Ingersoll away because of his homosexual orientation, then it’s over. Did she?

Stutzman tackled this in two ways:

  1. She claimed the WLAD protects sexual orientation, not same sex marriage, therefore the entire statute has been misapplied.
  2. Stutzman sought to drive a wedge between the issues of same sex marriage and sexual orientation. This wasn’t about orientation at all, she claimed, but about same sex marriage – which was unlawful when the WLAD went into effect.

Same sex marriage was unlawful in 2006, when the WLAD was implemented. In fact, the WLAD specifically noted it didn’t supersede existing WA laws about marriage,3 and the WA Defense of Marriage Act read (at the time), “[i]t is a compelling interest of the state of Washington to reaffirm its historical commitment to the institution of marriage as a union between a man and a woman as husband and wife and to protect that institution.”4 Same sex marriage wasn’t allowed in WA until 2012, so, Stutzman argued, the framers of the WLAD couldn’t possibly have envisioned it being applied in a same sex marriage context.

Stutzman’s noted the WLAD claims it “shall not be construed to endorse any specific belief, practice, behavior, or orientation.”5 She observed:6

It is difficult to imagine a more compelling endorsement of same-sex weddings than subjecting a private person in a wedding-related business who cannot participate in such weddings because of their religious beliefs to: (i) suit by the Attorney General and private litigants; (ii) liability for civil penalties, damages, and attorney fees and costs, and (iii) injunctive relief compelling the person to choose between violating their religious beliefs by participating in such weddings or foregoing all wedding business. That is precisely what happened here. Requiring Mrs. Stutzman to participate in same-sex weddings to the same extent as opposite-sex weddings effectively requires her to endorse same-sex weddings.

Indeed, the word “endorse” hardly allows for wiggle-room. When a word is not defined in the statute, the Court can rely on a common dictionary definition for clarification. My own desk dictionary (yes, I have a hardbound dictionary!) defines “endorse” as, “to approve openly.”7 Stuzman’s dictionary read likewise, which she pointed out.8

Shifting to her other defense, Stutzman’s attempt to differentiate between same sex marriage and sexual orientation sounds rather desperate. This is clearly an artificial distinction which Stutzman hopes will allow her to escape the language of the statute, but this is how the game is played, and Stutzman played with gusto here.

“[P]rotection for marital status is conspicuously absent from the WLAD’s public accommodations provisions,” she insisted. Even more, Stutzman’s own history of serving Ingersoll over the course of many years proves his sexual orientation wasn’t an issue. She only refused service when the issue of same sex marriage came up, which shows this is the real issue.9 Thus, she concluded, “the Court should hold that the refusal of Mrs. Stutzman to participate in a same-sex wedding is not discrimination ‘because of’ sexual orientation.”10

Ingersoll and Freed, the homosexual couple at issue, disagreed and observed:11

If that were true, Arlene’s Flowers would deny its good and services to all engaged couples, regardless of their sexual orientation. That is not, however, what Arlene’s Flowers does. It happily sells flowers and related services to engaged different-sex couples, but not to engaged couples who are gay. Arlene’s Flowers, and its owner, Mrs. Stutzman, treat engaged couples differently based only on the sexual orientation of the couple. This is, on its face, discrimination based on sexual orientation.

The Court agreed, and observed it’s often impossible (and, dare I say, artificial?) to distinguish between status and conduct. This makes sense. For example, consider this hypothetical scenario concerning a pregnant woman who is not hired for a job:12

  • Court: Mr. Employer, you have discriminated against Jane Doe because she is a woman!
  • Mr. Employer: No, you don’t understand. The fact that she’s a woman has nothing to do with it at all. We didn’t hire her because she’s pregnant. It’s a totally different thing!”
  • Court: Just stop …

Clearly, Stutzman refused to provide floral arrangements for a same sex marriage because of Ingersoll’s sexual orientation. The same sex marriage is the fruit of a sexual orientation, the same way pregnancy is the fruit of a female gender. Stutzman’s argument here is fallacious on its face. The Court agreed, noted the WLAD is violated even by indirect discrimination13 and that “[t]he provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof …”14

The Court also observed that, in the now infamous Obergefell decision,15 “the Supreme Court likened the denial of marriage equality to same-sex couples itself to discrimination, noting that such denial ‘works a grave and continuing harm,’ and is a ‘disability on gays and lesbians [that] serves to disrespect and subordinate them.’”16

The issue about the WLAD’s applicability, given that it was enacted when same sex marriage was unlawful in the State of Washington, is rather trickier. Stutzman argued the Court should read into the WLAD an implied same sex marriage exception. That is:17

  1. because same sex marriage was unlawful in the State of Washington when the WLAD was enacted,
  2. its framers certainly never envisioned the WLAD would apply to same sex marriages,
  3. therefore the WLAD does not apply to Stutzman and the case is over

The Court disagreed because it had already rejected her status vs. conduct distinction as fallacious.18 It also noted the WLAD carved out a religious exemption to protect churches from performing same sex marriages, so its framers clearly understood same sex marriage fell under the statutory umbrella.19 After all, you don’t exempt someone from something if your law doesn’t address it!

From a Christian perspective, the real issue is about religious liberty. The Court found the Washington Attorney General’s Office did not violate Stutzman’s religious rights. We turn to that issue in the next installment.

Notes

1 (1) Stutzman discriminated on the basis of sexual orientation, (2) there is no same-sex wedding exemption to the WLAD, and (3) the WLAD contains no mandate to balance religious rights against the rights of protected class members. This last reason is particularly troubling, which is why I’m saving it for the next installment.  

2 See RCW 49.60.215.

3 Appellant’s Brief, 15.  

4 Quoted in Appellant’s Brief, 15-16.  

5 See RCW 49.60.020.  

6 Appellant’s Brief, 17-18.  

7 Merriam-Webster Collegiate Dictionary, 11th ed. (Springfield: Merriam-Webster, 2003), s.v. “endorse,” 2a.  

8 Appellant’s Brief, 18.  

9 Appellant’s Brief, 21-22.  

10 Appellant’s Brief, 21.  

11 Respondent’s Brief, 9.

12 The Court cited this instance as sex discrimination, and provided many other representative case law examples to make the point.  

13 The relevant portion of RCW 49.60.215(1) reads, “It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination …”

14 See RCW 49.60.020. State v. Arlene’s Flowers, §25.

15 For more on Obergefell v. Hodges, see my two-part article on the U.S. Supreme Court decision at https://bit.ly/2UWhFdM.  

16 State v. Arlene’s Flowers, §24. Retrieved from https://bit.ly/2QE4DTx on 16 December 2018. Quoted from Obergefell v. Hodges, Syllabus, pg. 4. Retrieved from https://bit.ly/2aD9xKB on 16 December 2018.

17 State v. Arlene’s Flowers, §27; Appellant’s Brief, 16-17; 19-21.  

18 State v. Arlene’s Flowers, §26.  

19 State v. Arlene’s Flowers, §28.

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There are 6 Comments

Aaron Blumer's picture

EditorAdmin

A few distinctions that get lost in these cases in much of the reporting and analysis...

  • Birth factors
  • Belief factors
  • Behavioral factors

At some point, if we're going to honor our First Amendment, the government has to draw some lines to limit its enforcement of anti-discrimination. One set of rights clashes with another set. Historically, we prohibited discrimination based on race/ethnicity ("birth factors"). I'm not clear on the history, but somehow that has expanded to prohibiting discrimination based on beliefs and behaviors as well. The case can be made for that, of course, but the difficulty -- as cases like Masterpiece and Arlene's show -- is finding a good place for government/law to stop extending its reach. I'm sure organizations such as ADF and Heritage Foundation have put a lot more research and thought into this.

It should be clear, though, that it isn't possible (or desirable!) for everything that's morally wrong to also be illegal and enforced as illegal. So enforcement of nondiscrimination has to end at some threshold. The question is where should that threshold be?

Another potentially useful distinction would be

  • Essential goods and services
  • Nonessential goods and services

Looking again at the threshold problem (how many kinds and variants of discrimination is the government going to enforce), it seems intuitive that people should not be denied food, clothing, and shelter based on pretty much anything... whether birth factors, belief factors, or behavioral factors (though the latter seems messy when it comes to "shelter" -- should renters be required to house people who chose to enjoy a lifestyle of random destruction of property?). It's not so obvious that government ought to enforce nondiscrimination of every imaginable sort for nonessential goods and services.

As a Christian, I understand that my choice to believe what I do has consequences. There are options that go off the table. It's not supposed to "cost me nothing." This should also be an expectation for lifestyle choices in general. So being discriminated against for my choices is a very different thing from being discriminated against for characteristics a person is born with and didn't choose.

How to get law back into some kind of reasonable shape in this area is beyond my expertise, but there are lots of people working on it.

TylerR's picture

Editor

This is the crux of the questions the Court asked booth parties during oral arguments. They grilled the WA Attorney General pretty hard. WA doesn't do transcripts of oral arguments; they do video instead. So, for the next installment, I'll use a bunch of video clips. Pretty much all the next article will be about is "where do we draw the line" for the interest of the public good. 

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

Jay's picture

Clearly, Stutzman refused to provide floral arrangements for a same sex marriage because of Ingersoll’s sexual orientation. The same sex marriage is the fruit of a sexual orientation, the same way pregnancy is the fruit of a female gender. Stutzman’s argument here is fallacious on its face. The Court agreed, noted the WLAD is violated even by indirect discrimination and that “[t]he provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof …”

This was always the core of my concern, as it has been with churches that fire or church discipline pregnant women for living with a man out of wedlock or for engaging in premarital sex.  Women are forced by their bodies to display when they are pregnant, which can be used to indicate guilt of an otherwise unknown or unknowable act. If we treat that person differently because of fruit, not root, then the courts should (IMHO) conclude that we are judging unfairly.  After all, we wouldn't fire someone if we didn't know they were carrying on an affair, to use a different example.

There is not always a way to know - and apply the Scriptural principles accurately - when two people stand in front of a florist and order flowers for their wedding.  Are they living together?  Are they related?  Are they friends that have to be running errands together?  I have a single female friend who is pursuing foster care adoption.  Should we treat her as though she has sinned because she will have a boy? Or is it enough because her yet-unplaced child may have different color skin than she does?

Looking at a couple or a group of people and concluding that they are gay and should not be served as a result of it has all kinds of potential to go awry.  I realize that isn't the case with this particular situation but we need to think hard about how to work around this without resorting to the interrogation of potential customers.

"Our task today is to tell people — who no longer know what sin is...no longer see themselves as sinners, and no longer have room for these categories — that Christ died for sins of which they do not think they’re guilty." - David Wells

Aaron Blumer's picture

EditorAdmin

From an ethical standpoint, I think it's pretty clear that a retailer is not responsible for what purchasers do with what they buy. So that's a pretty practical place to draw the line. What's going to happen to the merchandise isn't relevant to the transaction, so there is no reason for the seller to ask questions.

If the buyer volunteers info, and they indicate they're going to do something illegal or injurious to someone, there's an ethical obligation to pass that on to the authorities. 

But if they are going to do something unethical, but not illegal or injurious, I would not see that as any of my business as a seller. 

But what should the government have the power to require as a matter of law in these situations? I don't believe they should have the power to require the seller to sell a product for a use they believe to be wrong.

And this really is the right way to frame it. It's not about rejecting categories of people. It's about what the buyer is going to do.

If the defense allows the prosecution to frame it as a question of rejecting types of persons, they probably automatically loose the case. 

WallyMorris's picture

Interesting and valuable discussion. The legal issues become complex mainly because sin and all its effects tend over time to create a multitude of ethical and practical questions. Just look at how detailed and verbose Jewish rabbi commentary has been over the centuries.

Tyler: One of your interests seems to be legal issues. Any reason for that?

Wally Morris

Charity Baptist Church

Huntington, IN

amomentofcharity.blogspot.com

TylerR's picture

Editor

I've been connected with the legal world since I was 18, which is when I entered law enforcement. My entire adult life has been as a customer of the legal arena, and the nature of my job (Investigations Manager for a State agency) necessarily involves daily contact with the law. There are six attorneys right outside my door, and I work with each of them on a daily basis regarding my unit's cases. So, that's where it comes from!

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

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