By Jon McLamb
The United States Supreme Court is deciding whether to hear a case with significant ramifications on First Amendment religious freedom. This time, however, a decision will come in direct conflict with local and state anti-discrimination laws that prevent businesses from discriminating on the basis of an person’s sexual orientation.
The case, Arlene’s Flowers, Inc. v. Washington, involves a private florist in Washington who refused to make a flower arrangement for a same-sex couple’s wedding.[1] The business owner cited her religious beliefs against same-sex marriage as her reason for the refusal.[2] The florist argued that she was entitled to refuse because providing services to a same-sex marriage ceremony would offend her religious beliefs so, therefore, she was protected under the First Amendment right to religious freedom.[3] The couple and the state believed that the florist had violated both local and state anti-discrimination laws by denying the couple’s request.[4] As a result of this conflict, the state filed a lawsuit on the couples’ behalf seeking injunctive and other relief.[5]
The case first reached the United States Supreme Court in June 2018.[6] In that instance, the Court remanded the case back to the Washington state courts to address the case in light of its decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which was decided that same month.[7] In Masterpiece Cakeshop, the Court held that a business owner’s religious freedom was violated when the business owner received penalties for refusing to sell a wedding cake to a same-sex couple.[8] The Court reasoned that the business owner deserved a neutral decisionmaker under the First Amendment that would give full and fair consideration to his religious beliefs against same-sex marriage.[9]
The Washington State Supreme Court subsequently re-decided the case on remand from the United States Supreme Court.[10] Applying the United States Supreme Court’s decision in Masterpiece Cakeshop, the Washington Supreme Court unanimously ruled against the florist.[11] The Washington Supreme Court reasoned that there is no exception to the public accommodation statutory requirement for religious beliefs, and the florist was therefore required to accommodate the same-sex couple’s request for a flower arrangement.[12] The Court found that the Masterpiece Cakeshop framework required a neutral analysis that involved looking into both the religious freedom of the First Amendment and the anti-discrimination statutes currently enacted in the State of Washington.[13]
Following the decision of the Washington Supreme Court, the florist petitioned the United States Supreme Court for a writ of certiorari.[14] In the petition, the florist argued that her First Amendment right to freedom of religion would be infringed if Washington penalized her following her beliefs and not serving the couple.[15] In arguing this point, the florist contended that the holding of the Washington Supreme Court is in direct conflict with the decision in Masterpiece Cakeshop because her refusal to serve the couple is protected expressive freedom protected under that case and other United States Supreme Court precedent.[16]
Both the State of Washington and the couple filed responses to the florist’s petition for writ of certiorari. The State of Washington argued that the florist’s contention that she was “participating in the wedding ceremony” if she served the couple a flower arrangement is highly misleading, because simply providing a service to the couple is not the same as participating in the ceremony.[17] Additionally, Washington argued that its supreme court’s decision does not violate United States Supreme Court precedent, but actually follows the current law by neutrally addressing both the religious freedom of the florist and the right to be free from discrimination of the couple.[18] Further, Washington contended that there is not a violation of United States Supreme Court precedent just because the Washington Supreme Court disagreed that the florist had a protected right that outweighs the right of the couple in this instance.[19]
The couple’s brief in response to the florist’s petition for writ of certiorari addressed the same arguments as Washington’s brief in opposition.[20] Like Washington, the couple opined that the Washington Supreme Court’s decision did not conflict with United States Supreme Court case law and did not force the florist to participate in their wedding ceremony.[21] The one major difference, however, is that the same-sex couple focused on their right to equal access that protected them against discrimination as opposed to the state’s brief, which focused on the florist’s lack of protected right to religious freedom.[22]
Several different interest groups filed amicus briefs in support of the petition for writ of certiorari. These groups include mostly conservative, religious, and constitutional scholars. In essence, their arguments addressed the right of the florist to refuse service to a same-sex couple under the First Amendment’s right to freedom of religion.
Because many interest groups have voiced their concerns about the Washington Supreme Court’s decision, the United States Supreme Court is likely to grant certiorari. The Supreme Court may also grant certiorari to resolve the direct conflict between two protected interests: the right to religious freedom and the right of same-sex couples to be free from discrimination on account of sexual orientation. The likelihood of granting certiorari is also higher because the Supreme Court heard this case at an earlier date but did not resolve the dispute.
This case presents an opportunity for the United States Supreme Court to address issues not reached in the Masterpiece Cakeshop decision. Many in the legal profession believe that the Masterpiece Cakeshop decision rendered a narrow holding that protected only the religious rights of the individual business owner in that circumstance. Therefore, the Court may take this opportunity to expand that holding to protect all business owners with similar religious beliefs. On the flip side, the Court could use this opportunity to distinguish the cases and limit the Masterpiece Cakeshop’s holding, giving a win to members of the LGBT community who continue to fight for their Constitutional rights, even after the landmark decision of Obergefell v. Hodges.[23] The Court will likely make a decision whether to grant certiorari in the next few weeks, and the disposition of the case will have significant impact on American citizens, one way or another.
[1] See 187 Wash.2d 804 (2017).
[2] See id. at 816–17.
[3] See id. at 818.
[4] See id. at 818–19.
[5] Id.
[6] 138 S.Ct. 2671 (2018).
[7] 138 S.Ct. 1719 (2018).
[8] Id. at 1724.
[9] Id. at 1732.
[10] State v. Arlene’s Flowers, Inc., 193 Wash.2d 469 (2019).
[11] Id. at 507–08.
[12] Id. at 508.
[13] Id.
[14] Petition for Writ of Certiorari, Arlene’s Flowers (2019).
[15] Id. at i.
[16] Id. at 26.
[17] State’s Brief in Opposition, Arlene’s Flowers, at11–14 (2019).
[18] Id. at 25–35.
[19] Id. at 26–27.
[20] See generally Brief of Respondents, Arlene’s Flowers (2019).
[21] Id.
[22] Compare Brief of Respondents, Arlene’s Flowers (2019) (addressing whether florist can deny same-sex couple’s equal access to flower arrangement services) with State’s Brief in Opposition, Arlene’s Flowers (2019) (addressing whether freedom of religion allowed florist to deny public accommodation to same-sex couple).
[23] 135 S.Ct. 2584 (2015).
