On July 2, the U.S. Supreme Court declined to hear the appeal of Barronelle Stutzman, a Washington florist who refused to make a floral arrangement for a same-sex wedding. By declining to hear the case, the high court left in place a lower court ruling that found Stutzman violated a state civil rights law that bars discrimination on the basis of sexual orientation.
Stutzman’s flower shop is known as Arlene’s Flowers, located in Richland, Washington. In February 2013, Robert Ingersoll and Curt Freed wanted Stutzman to do the flowers for their wedding but were turned away because they’re a same-sex couple.
Washington has an LGBT-inclusive law against discrimination. Antibias complaints were filed against Stutzman. Lower courts ruled against her. She appealed to the U.S. Supreme Court twice, emphasizing her free-speech rights and religious-freedom rights. In 2018, the high court sent Stutzman’s case back to the lower court for review. But the lower court reaffirmed its earlier ruling against Stutzman. She appealed to the high court once again. But on July 2, the high court rebuffed Stutzman’s second appeal, which is expected to end the litigation.
Stutzman couldn’t be reached for comment. She was represented by Alliance Defending Freedom, a conservative legal organization. According to ADF’s website, news of the Supreme Court’s decision was “devastating” to Stutzman.
Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project, contrasted Stutzman’s case with the recent Supreme Court ruling known as Fulton, which allows a Catholic agency to certify foster parents in Philadelphia, even though the agency won’t work with same-sex couples.
“The Fulton case held that, because Philadelphia’s contract with CSS gave the city discretion to grant [antibias] exemptions, Philadelphia couldn’t refuse an exemption to CSS,” Mar said, in a statement. “The decision was limited to the particular contract at issue and did not grant a license to discriminate against LGBTQ people.
“In this [Stutzman] case, by contrast, Washington’s Law Against Discrimination has no mechanism for individualized exemption — a fact even the flower shop did not dispute. So there was no basis for letting the flower shop off the hook for its discrimination against Rob Ingersoll and Curt Freed. Instead, the flower shop is subject to the general rule that, as the court put it in Masterpiece Cakeshop, LGBTQ people ‘cannot be treated as social outcasts or as inferior in dignity and worth.’”
Jenny Pizer, senior counsel at Lambda Legal, expressed concern with the direction the Supreme Court is moving in.
“There’s an unmistakable pattern of allowing violations of law, including nondiscrimination laws, for religious reasons,” Pizer told PGN. “Arlene’s Flowers is a welcome exception. But the majority of the Court clearly wants to further expand religious rights. The only question is how much new, special freedom for religion they will provide, and how much harm to LGBTQ people and others they will allow.”
Angela Giampolo, a local civil-rights attorney, expressed concern with the Supreme Court’s “shadow docket.”
“I think we are witnessing SCOTUS delivering blows to the LGBTQ+ community in finding for religious ‘liberties’ but doing so quietly,” Giampolo said, in an email. “The ‘shadow docket’ which handles emergency motions and requests to stay lower court opinions allows SCOTUS to hand down orders and create law without following SCOTUS’ typical deliberative procedures. SCOTUS must spend months on a case that receives a full opinion and can decide shadow-docket cases within a mere couple of days.”
Giampolo said she sees “SCOTUS laying the groundwork quietly and delivering massive victories for the religious right in shadow-docket cases and punting (like in Fulton) — or denying to hear altogether — cases that would garner national attention and by virtue of that, scrutiny. That will come back to bite the LGBTQ+ community.”
Adrian Shanker, executive director of Bradbury-Sullivan LGBT Community Center, issued this statement: “The Supreme Court has repeatedly declined to issue a broad license to discriminate. The Court’s narrow opinion in Fulton — while challenging for children in Philadelphia’s foster care system — did not create a new national license to discriminate against LGBTQ+ people. And likewise, the Court’s decision not to hear Arlene’s Flowers will hopefully be enough to make it clear that there is no constitutional license to discriminate against LGBTQ+ people. Both in Fulton and in Arlene’s Flowers, a conservative Supreme Court declined to take our country backward. The decision by the Court not to hear Arlene’s Flowers is good news for LGBTQ+ Americans. But let’s be clear. We need comprehensive federal protections like what the Equality Act would offer to provide the enduring protections from discrimination that LGBTQ+ people need.”
Preston Heldibridle, executive director of Pennsylvania Youth Congress, echoed Shanker’s comments. “The Supreme Court’s decision in the Fulton case ruled that non-discrimination policies are fully lawful as long as they are neutrally applied and enforced,” Heldibridle said, in an email. “The case was only a narrow loss for the City of Philadelphia because a clause in its policy allowed the City to grant exemptions to the non-discrimination policies at its discretion. This created the opportunity for uneven enforcement.
“In the case of Arlene’s Flowers, there was no such clause at play. Every establishment in Washington is subject to the state’s non-discrimination laws. As such, simply filing a lawsuit against an establishment for violating these laws could not be an act of religious hostility or evidence of impermissible religious bias.”
Barbara Simon, a spokesperson for GLAAD, urged the U.S. Senate to pass the Equality Act. “Again and again, the Supreme Court has refused to say there is a Constitutional right to discriminate against LGBTQ people,” Simon said, in an email. “Same-sex couples shouldn’t have to worry about being rejected for who they are when they walk into a store, apply to foster a child, or see their doctor. A majority of Americans agree such discrimination should be illegal and that religion shouldn’t be used as an excuse to discriminate. It’s time to secure the core value of equal treatment into law. The Senate must pass the Equality Act as soon as possible to protect every LGBTQ American from discrimination.”