The Supreme Court will soon show how eager – or how hesitant – it is to move ahead in defining the government’s power to give gay and lesbian couples equal rights as consumers in America’s marketplace – at least when they go shopping for wedding services. Having just spent six months working on a compromise ruling that avoided saying much on the issue, the Justices are already facing the first potential sequel.
This time, the dispute focuses on a Washington State florist who refused for religious reasons to make custom flower arrangements for a same-sex wedding. In the decision issued last Monday, the central figure was a Colorado bakery owner who relied on his religion in refusing to bake a wedding cake for a gay couple.
The baker was the declared winner of that case, but the victory was a narrow one, and by that fact alone, the Justices at least implied that they were intentionally being cautious in confronting for the first time the broad new controversy over what other rights go with the right of same-sex couples to wed. (The basic constitutional right to marry was settled three years ago.)
The Supreme Court has wide discretion to simply pass up new cases on that question, and it does not even have to explain if it chooses that option. Staying on the sidelines, at least for the time being, would allow lower courts to keep exploring the controversy, without anything like meaningful constitutional guidance from the Court.
The next case on their docket on the issue – Arlene’s Flowers Inc. v. State of Washington – has been kept on hold until the Colorado case was decided. On Wednesday, both sides filed new legal arguments, trying to persuade the Justices on what to do next.
The Court has three basic options: simply deny review of the appeal from a Washington State Supreme Court ruling against the florist – something that would happen unless at least four Justices vote to review it; overturn or set aside the state court ruling, perhaps to see what it might find in Monday’s ruling that might serve as some guidance – something that would take five votes to do; or, grant review and take on the case as the next term, starting in October. The Justices’ action might become known as early as next Monday, although they could take further time if they wish.
Denying review might be the easiest thing to do, but that would be an abrupt defeat for the florist and send a negative signal to others in her position and would be of little help to lower courts as they go on handling such cases. Overturning or setting aside the state court decision would be something of an affront, especially if it came without much of an explanation of what the Justices wanted done now with the case. Granting review for next term, of course, would simply plunge the Justices back into the midst of the constitutional battle after having worked so hard to avoid deciding the issue in a grand way.
The florist’s case raises the same two constitutional issues that had been at stake on Monday, when neither one was answered clearly. First, there is the issue of whether a florist’s creation of a special arrangement is a form of artistic expression that is entitled to First Amendment protection, so a state civil rights law that compels the florist to provide that service is a form of coerced speech supporting same-sex marriage, when the florist opposes such marriages.
In the Colorado baker’s case, the Justices did not even rule on that issue in response to his claim that he was a “cake artist” whose special cake spoke for his views. Two Justices among the nine said they would have ruled for him on that point; two others said the opposite. So there was no majority, one way or the other.
Second is the issue of the right of a florist to engage in the “free exercise of religion” under the First Amendment when the florist refused for reasons of faith to make a custom flower arrangement for a same-sex wedding and thus ran afoul of a state law protecting against marketplace discrimination based on sexual orientation.
On Monday, the Court by a vote of 7-to-2 ruled in favor of baker Jack Phillips on that second point, but did so on the very narrow ground that officials in Colorado had displayed hostility toward his religious beliefs in ordering him to make such a cake, and thus denied him his constitutional right to a “neutral” decisionmaker in state government.
That ruling left unanswered how the Justices might weigh the religious freedom claim in a case where such hostility was not as clear in the record of the case as the majority found it to be in Phillips’ situation. And, if that were not a factor, how might the Justices react in the next case on the other question, on free speech?
Because the hostility issue was the turning point for the Colorado ruling, as the majority saw it, it was no surprise when the Richland, Wash., operator of Arlene’s Flowers – Barronelle Stutzman -- on Wednesday claimed in a new brief that there was evidence of that in her case, too.
This was clearly an attempt to justify the option of wiping out the state court ruling and ordering a new look at the record in the case. The new brief argued that state officials took action against the florist without even having a formal complain from the gay customer denied a flower arrangement and aimed the action against the florist personally as well as at her business. In addition, it said that a lower state court had compared Stutzman to the racist owner of a convenience store who would not sell goods to black customers. “The state, in short, has treated [the florist] with neither tolerance nor respect.” The new filing also argued that the case against the florist threatened to drive her out of business and into bankruptcy.
The brief closed with a suggestion that there had been unequal treatment of her, hinting that state officials had recently reacted differently to a Seattle coffee shop owner who discriminated against customers who were Christians.
Lawyers for the state of Washington sought to counter, submitting their own new brief on Wednesday, arguing that not one of the florist’s new claims “can bear the slightest scrutiny.” The supposed reference to a racist owner of a convenience store simply came in a state court reference to a prior ruling that laid down a controlling legal standard, not to attack the florist, the state’s new brief said.
To the claim that the case threatened Arlene’s Flowers as a business or threatened the family, the state’s lawyers said she has been assessed a fine of only $1,000 along with a $1 fee. Moreover, the state said, the florist had been given an opportunity to avoid any penalty if she would simply obey the state anti-discrimination law.
Finally, the state disputed the claim about a coffee shop owner who allegedly was not dealt with by the state. No one filed a complaint in that situation, the state brief said, and state officials said they would contact that merchant about state law. The coffee shop owner has changed his policy, according to the state, and there is no evidence that any state official treated his refusal to serve Christians as a lawful gesture.
The state simply wants the Justices to deny review, leaving the state court ruling intact against the florist.
Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
