Enforcing Nondiscrimination Laws Is Not a Sign of Anti-Religious Bias

ACLU | August 2018

By James Esseks, August 2018 Issue.

On the morning of June 25, the U.S. Supreme Court refused to take up another challenge to state nondiscrimination laws protecting LGBTQ people. Instead, it asked the Washington Supreme Court to take a fresh look at a case about a flower shop that refused to sell flowers to a same-sex couple for their wedding in violation of state law. The remand provides a chance for the state court to clarify the meaning of the Supreme Court’s recent decision in Masterpiece Cakeshop as it applies to this case.

In 2017, the Washington Supreme Court ruled unanimously for the same-sex couple in Arlene’s Flowers v. Washington, and there’s no reason to think its analysis and ruling will change when it reconsiders the case in light of the Masterpiece Cakeshop decision.

The Masterpiece case involved Dave Mullins and Charlie Craig, a same-sex couple who went to a Denver bakery in search of a cake for their wedding reception. When the bakery refused to sell them a cake because they are a same-sex couple, they sued under Colorado’s longstanding nondiscrimination law. The bakery claimed that the Constitution’s protection of free speech and freedom of religion gave it the right to discriminate regardless of the state’s civil rights law.

The Supreme Court’s decision did not decide that question. Instead, it held that the Colorado Civil Rights Commission displayed anti-religious bias when ruling on Dave and Charlie’s discrimination claim. This bias, the court said, invalidated the commission’s ruling against the bakery.

The constitutional problem that the Supreme Court found in the bakery case — anti-religious bias by a government adjudicator — is simply not present in the flower shop case. A ruling for the couple in Arlene’s Flowers on remand would underscore that the Supreme Court’s decision in Masterpiece Cakeshop does not provide a license to discriminate against LGBTQ people or against anyone else protected by nondiscrimination laws.

The facts in the Arlene’s Flowers case are quite similar to the bakery case — with one crucial difference. Rob Ingersoll and Curt Freed went to Arlene’s Flowers, a local florist in their small Eastern Washington town, seeking flowers for their wedding. The flower shop refused to sell them flowers because of the owner’s religious objection to same-sex couples getting married. Rob and Curt had been planning a wedding with about 100 of their close friends and family, but after being turned away by the flower shop, they were fearful of being turned away by other vendors.

Consequently, they decided to scale their wedding back to a private ceremony at home with 10 people, which they could arrange with minimal help from outside vendors. Just as in Masterpiece Cakeshop, the state courts in Arlene’s Flowers ruled unanimously that the flower shop unlawfully discriminated against Rob and Curt when it refused to sell them flowers. They also rejected the businesses’ claim that the Constitution gave them a right to violate the state’s discrimination law.

There is, however, one critical difference between Arlene’s Flowers and Masterpiece Cakeshop: There is no evidence in Arlene’s Flowers of anti-religious bias on the part of the Washington courts that ruled against the flower shop. In fact, the Washington courts have repeatedly recognized the importance of religious freedom.

Alliance Defending Freedom, the anti-LGBTQ group that represents both the bakery and the flower shop, is arguing that Washington Attorney General Bob Ferguson displayed anti-religious bias that violates the rule set forth in the Masterpiece Cakeshop decision by seeking to enforce the state’s anti-discrimination law against the flower shop.

It’s the job of the Washington attorney general to enforce the state’s laws, including its laws barring discrimination. Bringing a charge of discrimination against a business that is open to the public but turns away customers because they are LGBTQ is not an anti-religious act, it’s the neutral enforcement of the law. Attorney General Ferguson has repeatedly sought to enforce the Constitution’s protections for freedom of religion, for example, by challenging the Muslim ban to stop the federal government’s explicit discrimination against people based on their religion.

The remand of Arlene’s Flowers to the Washington Supreme Court provides an opportunity for that court to make clear that enforcing civil rights laws is not a sign of anti-religious bias and to reject the argument that the state violated the U.S. Supreme Court’s decision in Masterpiece Cakeshop.