On Monday, the U.S. Supreme Court remanded the case Arlene’s Flowers v. Washington to the Washington State Supreme Court. While this is a win for florist Barronelle Stutzman and for religious freedom, it will also restart a long legal battle without issuing a ruling on the fundamental issue.
Last February, the Washington State Supreme Court upheld $1,001 in fines against Stutzman, owner of Arlene’s Flowers, for violating the state’s non-discrimination law. Stutzman had refused to provide a floral arrangement for a long-time customer’s same-sex wedding.
Stutzman, like many other Christians refusing service for same-sex weddings, argued that the fines violated her rights to freedom of speech, freedom of association, and free exercise of religion. As a Christian, she believes that marriage is between one man and one woman, and while she gladly served Robert Ingersoll for decades, she would not sell him flowers specifically for his same-sex wedding.
Although the Washington State Supreme Court acknowledged that Stutzman “has served gay and lesbian customers in the past for other, non-wedding-related flower orders,” it nevertheless ruled that she had discriminated against Ingersoll on the basis of his sexual orientation.
On Monday, the U.S. Supreme Court vacated the Washington State Supreme Court’s decision, urging the court to reconsider the case, given the result in Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided earlier this month.
Masterpiece Cakeshop was a victory for religious freedom, as the Supreme Court ruled in favor of Jack Phillips, a Christian baker who refused to bake a custom cake for a same-sex wedding. While seven of the nine justices ruled for Phillips, they did so on very narrow grounds, arguing that Phillips did not receive a fair hearing due to anti-religious bias against his perspective.
Importantly, the Court acknowledged that anti-Christian animus is real and will not be tolerated. Religious conservatives — whether they are Christian, Jewish, Muslim, or even atheist — can refer to this case as proof that persecution against them is real and will not stand.
While the Court gave Phillips a great moral victory, sending the message that anti-Christian bias will not be tolerated, it did not answer the fundamental question of the case: whether or not Christian (or any religious conservative) small business owners have the free speech and religious freedom rights to opt out of serving a same-sex wedding on conscience grounds.
Phillips and Stutzman had powerful and convincing arguments that neither of them turn away LGBT people, but merely refuse to lend their creative work (and implicitly their public support) to a “wedding” they consider a departure from the idea of marriage. This issue is not going away anytime soon, and the Court’s refusal to side with one party or the other ensures that this issue will present prolonged political and legal battles.
For this reason, most observers have predicted that Barronelle Stutzman will again lose her case at the Washington State Supreme Court. After all, the Court was unanimous in upholding the fines last year.
Cato Institute Senior Fellow Ilya Shapiro declared himself “a bit surprised that [the Supreme Court] remanded Arlene’s Flowers. Not in a legal realist sense—they clearly don’t want to resolve the issue—but Masterpiece Cakeshop was already a punt, so lower court will now rubber stamp its previous ruling and we’ll be back at same place.”
https://twitter.com/ishapiro/status/1011259535359709185
The LGBT group the Human Rights Campaign (HRC) predicted that “justice will prevail and the Washington State Supreme Court will again uphold the state’s non-discrimination laws ensuring LGBTQ people cannot be turned away from a business open to the public.”
It appears Stutzman will have to show what Phillips showed — that anti-Christian bias was fundamental to the original ruling against her. This will prove more difficult than in Phillips’ case, and the odds are good that the Washington Supreme Court will reissue its old ruling, again prompting a Supreme Court appeal.
Perhaps in 2020 or 2021, the Supreme Court will finally defend free speech and religious freedom, explaining that a Christian florist’s decision to opt out of serving a same-sex wedding is fundamentally different from refusing to serve all LGBT people. Only at that point will justice truly have been served.
At least for now, Stutzman can enjoy a temporary — but nevertheless important — victory. America is not yet so far gone that religious freedom is utterly toothless. Still, the battle ahead will be long.
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