The Washington Supreme Court last week unanimously upheld a trial court’s ruling that a florist violated a Washington law barring discrimination on the basis of sexual orientation in public accommodations when she refused to sell flowers to a gay couple for their wedding because of her sincerely held religious belief that marriage is for one man and one woman only.
The supreme court was not persuaded by her arguments that the Washington law violated her rights under the U.S. Constitution to free speech, free exercise of religion, and freedom of association.
This post briefly describes the court’s analysis of these three arguments.
(1)
The court rejected the florist’s argument that the Washington law forces her to endorse same-sex marriage via her sale of flowers for the wedding. She argued that such forcing violates the First Amendment’s protection against “compelled speech.”
The florist asserted that her creation of a floral arrangement is “speech” because arranging flowers is an artistic expression. The court noted that a person’s activities (conduct) is not normally protected as “speech” under the “freedom of speech” clause of the First Amendment. “Inherently expressive” conduct can constitute protected speech per the court, however, when the conduct is clearly expressive, in and of itself, without further explanation.
The court found that a florist’s decision to provide (or not provide) flowers for a same-sex marriage does not, in and of itself, inherently express a message about the wedding. The court said that the florist’s refusal to provide flowers for a wedding could express, among other things, that it was because of a religious objection or insufficient staff or stock.
The florist had testified that providing flowers for a Muslim wedding would not necessarily endorse Islam and providing flowers for an atheist wedding would not endorse atheism.
Per the court, the florist providing or not providing flowers for the same-sex wedding did not inherently express a message. Accordingly, the court found no free-speech violation.
(2)
The court also rejected the florist’s argument that applying the Washington law here violates the Constitution’s barring of laws prohibiting the “free exercise” of religion.
The court explained that a generally applicable law that happens to burden religion does not violate the First Amendment’s “free exercise” clause if the law has a rational basis. This is not a difficult standard for a law to meet. The court had no trouble finding that the law is rationally related to the state’s legitimate interest in ensuring equal access to public accommodations.
If, however, the law discriminates against some or all religions or if the law regulates conduct because the conduct is undertaken for religious reasons, then the law is more likely to violate the First Amendment. In that event, the court gives the law “strict scrutiny.”
The court rejected the florist’s argument that the Washington legislature’s exemption of religious organizations from the law shows the legislature’s intent to target religion. The court found instead that such exemptions indicate just the opposite, an intent not to target religion. The court rejected her other arguments in this vein, too.
Thus, the court refused to give the law strict scrutiny and found no violation of the “free exercise” clause.
(3)
Finally, the court rejected the florist’s argument that applying the law to her in this situation violates her First Amendment right to freedom of association. The court explained that the U.S. Supreme Court distinguishes a business’s customer service from protected expressive-association.
Indeed, the court noted that “the Supreme Court has never held that a commercial enterprise, open to the general public, is an ‘”expressive association'” for purposes of First Amendment protections.”
Conclusion
Some would argue that “forced to sell flowers” is an overstatement. She could choose to shut down her shop and not face liability for not selling flowers for future same-sex marriages, for example. But I suspect florists would view the situation as “forced to sell.”
Most states do not have a law like the Washington law at issue here that prohibits discrimination in public accommodations based on sexual orientation. The National Conference of State Legislatures reports that 22 states prohibit such discrimination based on sexual orientation. North Carolina, for example, does not have such a law.
The florist made other arguments to the court, such as the Washington law violates the Washington Constitution. These arguments were also rejected.
One of her lawyers said that the florist will appeal to the U.S. Supreme Court.
The full opinion of the Washington Supreme Court can be found here.
Sources
http://www.adfmedia.org/files/ArlenesFlowersWSCopinion.pdf
https://www.nytimes.com/2017/02/16/us/florist-discrimination-gay-couple-washington-court.html?_r=0
http://www.ncsl.org/research/civil-and-criminal-justice/state-public-accommodation-laws.aspx
(The picture at the top is one I took of some flowers I bought Tracey last week for Valentine’s Day.)