Is it a hot potato, a tennis ball? Maybe both.
The “it” is LGBT rights and equality, and the two sides eyeing its mysterious, contested trajectory high in the air are LGBT rights campaigners and those who believe that their “religious freedom” is threatened by baking a wedding cake for a same-sex couple or providing them with flowers.
On Monday, SCOTUS sent back for further consideration a Washington Supreme Court ruling that went against a flower shop, Arlene’s Flowers Inc., which declined to make an arrangement for Curt Freed and Robert Ingersoll’s marriage.
The U.S. Supreme Court returned the case back to the Washington state court, asking it to reconsider it in light of the SCOTUS ruling on Masterpiece Cakeshop earlier this month.
Back then, SCOTUS determined that the baker concerned, Jack Phillips, had not had his religious beliefs treated neutrally by the Colorado Civil Rights Commission when the commission had ruled that he’d violated state law by refusing to sell a wedding cake to a gay couple, David Mullins and Charlie Craig.
“The neutral and respectful consideration to which Phillips was entitled was compromised here,” Justice Anthony Kennedy wrote in his majority decision. “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
LGBT activists said it was a narrow ruling in Phillips’ favor. Their opponents said it was a shining day for religious liberty.
While Justice Kennedy also affirmed LGBT rights’ protections in that ruling, some activists see dark portents in SCOTUS’ latest punting of the florist case back to Washington state.
Rachel B. Tiven, chief executive of the advocacy group Lambda Legal, told The Daily Beast that the latest ruling would give heart to those who do not want to provide goods and services to LGBTQ people: “The message is, ‘You’ve got something here. Keep on litigating.’”
The Human Rights Campaign appeared more sanguine about SCOTUS’ referring the case back to the lower court. In a statement, HRC legal director Sarah Warbelow said, “The Supreme Court has simply asked the lower court to take another look at this case in light of their recent decision in Masterpiece, but they did not indicate there was anything wrong with the ruling.
“In Masterpiece, the Supreme Court found that the state of Colorado’s enforcement of its civil rights law was flawed due to perceived bias in the process, however, there is no indication that there were flaws in the application of civil rights law in Arlene’s Flowers. We view this decision as encouraging news 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.”
The Washington state attorney general, Bob Ferguson, released a statement also seeking to allay LGBT alarm.
“We expected this procedural step,” Ferguson said. “The Washington State Supreme Court now has the job of determining whether the U.S. Supreme Court ruling affects this case. I am confident they will come to the same conclusion they did in their previous, unanimous ruling upholding the civil rights of same-sex couples in our state.”
Under Washington law, the statement made clear, a business need not provide a particular service, but if it chooses to do so for couples of the opposite sex, it must provide that service equally to same-sex couples—hence the state Supreme Court had in 2017 initially ruled against Arlene’s owner Barronelle Stutzman, who is being supported by the conservative group Alliance Defending Freedom.
In 2017, the state Supreme Court ruling read: “We agree with Ingersoll and Freed, that ‘[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.’ … Public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.”
In 2017, Stutzman claimed her “artistic expression” and “deepest beliefs” were being violated by having to create flower arrangements for a same-sex wedding. The Constitution guaranteed her the “right to create freely, and to live out my faith without fear of government punishment or interference.”
In a statement Monday, Kristen Waggoner, senior vice president of the Alliance Defending Freedom’s U.S. Legal Division, said the state had shown “similar hostility” to what Colorado’s Civil Rights Commission had shown Jack Phillips.
Stutzman claimed, “It’s about freedom, not money. I certainly don’t relish the idea of losing my business, my home and everything else that your lawsuit threatens to take from my family, but my freedom to honor God in doing what I do best is more important.”
But how is Stutzman’s “freedom to honor God” endangered by making an arrangement of flowers for a same-sex couple? She is running a business, not a faith mission. For Tiven, the Masterpiece ruling has seeded a concerning trend.
“This is exactly what we were worried about,” Tiven said. “What was purported to be quite a narrow ruling has turned out to be anything but. Until Masterpiece, no cases bought by those wishing to discriminate were a win. Now, these claims of piety are being used to undermine LGBT equality and single out LGBT customers for discrimination.
"What the court did in Masterpiece was say to businesses wanting to discriminate, ‘Keep at it, you might have something there.’ Washington state has already said Arlene’s has no claim, that the law for LGBT people is the same as any other protected class, and that one’s religious beliefs are not unfairly burdened by having to treat gay customers equally.”
Tiven wondered whether SCOTUS’ florist decision Monday was also, at least partly, about the justices wanting to leave for their summer vacations without the case hanging over their heads, "an easy way to dispose of it without coming to a decision of finality.”
There is no federal law that explicitly states you have to provide goods and services to someone regardless of their sex or sexual orientation; neither are contained in the relevant part of the 1964 Civil Rights Act.
However, Washington is one of 20 states, including Colorado, that provide clear protections against discrimination in employment, housing, and public accommodations on the basis of both sexual orientation and gender identity.
The Masterpiece Cakeshop and Arlene’s Flowers cases are far from isolated. There are similar litigations pending testing the limits of LGBT equal access and “religious liberty.”
And so the tennis ball, the hot potato, stays up in the air bouncing between state and federal gavels. Who will ultimately rule on these cases?
Possibly next at SCOTUS, should it choose to hear the case, could be now-defunct Oregon bakery Sweet Cakes By Melissa, which refused to make a wedding cake for lesbian couple Rachel and Laurel Bowman-Cryer in 2013.
On Friday, Oregon’s Supreme Court declined to hear the case. The shop’s owners had already been ordered to pay the couple $135,000 after being found to have violated Oregon’s anti-discrimination laws. A direct appeal to SCOTUS seems likely.
Shortly after the Masterpiece ruling, the Arizona state Court of Appeals upheld a Phoenix anti-discrimination law that makes it illegal for businesses to refuse service to same-sex couples because of religion.
ADF, again backing here a wedding invitation business that does not wish to design invitations for same-sex weddings, said it intended to take the case to Arizona’s Supreme Court.
Tiven said that “over and over again” these cases are emerging, with the protection of “artistic expression” and “religious exercise” at their heart. “But in that Arizona decision, it was said resoundingly that this wasn’t about speech, it’s about conduct and the conduct that one must run one’s business with to meet the standard of the law. These laws were not passed to undermine religion.”
“People should be clear. What SCOTUS did today, and with Masterpiece, does not undermine the existing law,” said Tiven. “In 20 states LGBT rights in this area are still protected. But there is a very potent effort by people who don’t like queers that has been encouraged by the Supreme Court to undermine those protective laws. The presence of Neil Gorsuch has added an enormous amount of power to the success of those arguments, and yes, people should be concerned.”
Tiven asked, rhetorically: “Is Roe vs. Wade still the law of the land, has it been overturned? No. It’s there. But can you get an abortion in 90 percent of U.S. counties? No, you can’t. The campaign to undermine marriage equality is similar, by hollowing it out with religious exemptions. In five to 10 years’ time, if this well-funded campaign is successful, the possibilities are, Will you be able to get a marriage license in your hometown? Not if that small town is in a red state, where officials have asked for religious exemptions.
“So, you drive to the nearest big city, but the only official there who hasn't got a religious exemption only works every other Tuesday. You can’t get your Social Security application process that recognizes you as a married family underway because of that official’s ‘religious conscience.’ And so, as with abortion today, you may have to drive over state lines. Yes, marriage equality is the law of the land, but the campaign against it is to make it Swiss cheese.”
Lambda Legal, said Tiven, is contacted regularly by LGBTQ people refused service because of who they are: the transgender driver refused help from a tow-truck driver after their vehicle breaks down in the middle of the night; the pediatrician who demands consent from a child’s “real” parents, rather than the two same-sex parents in front of them.
The battle is psychological and cultural, as well as unfolding in courts, said Tiven. Those against marriage equality, fighting these quotidian-seeming legal battles over wedding cake and invitations because of supposed religious liberty and artistic self-expression, want to imprint the idea in the public mind of the separateness of “gay marriage”—that there are ‘gay’ wedding cakes, as opposed to wedding cakes.
“The point of the SCOTUS equal marriage decision was to say, ‘There’s only one kind of marriage,’ that all marriages are the same under the law,” said Tiven. “These legal fights are about stating again and again that ‘gay marriage’ is lesser than, different than. It’s insidious, and it’s not going away.”
And so the legal hot potato, or tennis ball, stays up in air that is growing steadily more poisonous.
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