Barronelle Stutzman. (Washington Blade photo by Michael Key)
In the aftermath of being forced to reevaluate it decision following the U.S. Supreme Court’s decision in the Masterpiece Cakeshop case, the Washington State Supreme Court has again concluded Arlene’s Flowers violated the state’s LGBT non-discrimination law by refusing to provide floral services to a same-sex wedding.
The 76-page decision finds previous decisions in the case were reviewed correctly under the First Amendment’s guarantee of religious neutrality. Thus, the new decision reaches the same conclusion Baronelle Stutzman violated state law in 2013 by refusing to serve a same-sex couple seeking to buy wedding flowers.
“We have fully reviewed the record with this issue in mind, and we have considered substantial new briefing devoted to this topic,” the decision says. “We now hold that the answer to the Supreme Court’s question is no; the adjudicatory bodies that considered this case did not act with religious animus when they rules that the florist and her corporation violated the Washington Law Against Discrimination.”
The nine-members of the Washington State Supreme Court were unanimous in their decision against Stutzman, which was written by Associate Justice Sheryl McCloud.
The case has been in litigation for six years. Although the Washington State Supreme Court had concluded Stutzman broke violated state-non-discrimination law in 2017, the U.S. Supreme Court last year vacated that decision and remanded it to the state court for new review following the narrow ruling in favor Jack Phillips, the owner of Masterpiece Cakeshop.
The U.S. Supreme Court issued new instructions to the Washington State Supreme Court in response to a petition for certiorari filed by the anti-LGBT legal firm Alliance Defending Freedom, which is representing Stutzman.
But the precedent under Masterpiece Cakeshop was limited in scope. The U.S. Supreme Court didn’t find a First Amendment right for Phillips to refuse service to make a custom-made wedding cake for same-sex couples, but rather found the Colorado Civil Rights Commission had anti-religious bias when considering the case.
Under new guidance from the U.S. Supreme Court, the Washington State Supreme Court reached the same conclusion it had found when first adjucating the case: Stutzman violated state law when refusing service to Robert Ingersoll and Curt Freed, a same-sex couples.
“The State of Washington bars discrimination in public accommodations on the basis of sexual orientation,” the decision says. “Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation. We therefore hold that the conduct for which Stutzman was cited and fined in this case — refusing her commercially marketed wedding floral services to Ingersoll and Freed because theirs would be a same-sex wedding — constitutes sexual orientation discrimination under the WLAD.”
A new argument ADF presented to Washington State Supreme Court was the state law required Stutzman to “attend and participate” in a same-sex wedding against her wishes because her they require her to make on-site preparations.
Justices, however, had none of that. Noting Stutzman made a similar argument before a Washington superior court that “other aspects of her involvement in weddings are speech, including singing, standing for the bride, clapping to celebrate the marriage, and in one instance counseling the bride,” the court said these are activities outside the services for which she is being paid.
“Tellingly, Stutzman does not claim that she was being paid to do any of these things,” the decision says; “Said another way, she does not claim that these are services that she is providing for a fee to her customers such that they would be covered by an injunction. The degree to which she voluntarily involves herself in an event outside the scope of services she must provide to all customers on a non-discriminatory basis (if she provides the service in the first instance) is not before the court.”
Finding no reason to alter its initial conclusion, the Washington State Supreme Court uphold’s the ruling of the Benton County Superior Court, which found Stutzman violated the law and fined her $1,000.
Washington State Attorney General Bob Ferguson, a Democrat who brought the case against Arlene’s Flowers, said in a statement Thursday the court’s decision was consistent with state law.
“Washington state law protects same-sex couples from discrimination based on their sexual orientation, the same way it protects Washingtonians from discrimination based on their religion, veteran or military status, disability, race and other protected classes,” Ferguson said. “I will continue to uphold these laws and fight to protect Washingtonians from discrimination.”
Jennifer Pizer, director of law and policy for Lambda Legal, said in a statement the Washington State Supreme Court “confirmed a simple principle: Our precious freedoms of religion and speech do not give businesses a license to discriminate against LGBT people.”
“As important, the court also did a careful review and rejected the assertion that there was anti-religious bias in the state courts’ consideration of the lawsuit,” Pizer said. “The florist in this action – Arlene’s Flowers, Inc. v. Washington – had no plausible basis for claiming there was hostility to her religious beliefs among those deciding her case.”
John Bursch, ADF’s vice president of appellate advocacy, vowed in a statement after the ruling the legal firm would file another petition on behalf of Stutzman seeking review before the U.S. Supreme Court.
“Barronelle serves all customers; she simply declines to celebrate or participate in sacred events that violate her deeply held beliefs,” said Bursch. “Despite that, the state of Washington has been openly hostile toward Barronelle’s religious beliefs about marriage, and now the Washington Supreme Court has given the state a pass. We look forward to taking Barronelle’s case back to the U.S. Supreme Court.”
