The Washington Supreme Court on Tuesday heard the case of a 72-year-old florist who is facing fines after declining to make flower arrangements for a gay couple’s wedding.
During the hearing, lawyers for the florist, Barronelle Stutzman, were asked to explain how declining to make flower arrangements for a same-sex wedding is different from discrimination based on race.
“A Muslim graphics designer shouldn’t be compelled to create designs promoting a Jewish Friends of Israel group,” said Kristen Waggoner, Stutzman’s lawyer in her opening statement. “A gay public relations manager shouldn’t be forced to promote the Westboro Baptist Church. And a Christian floral designer shouldn’t be forced to create custom wedding designs for a wedding that is not between one man and one woman.”
The case surrounds Stutzman, owner of Arlene’s Flowers, a small flower shop in Richland, Washington. A mother and grandmother, she has been in the industry for over 40 years.
In March 2013, Stutzman was asked to make custom floral arrangements for a gay couple’s wedding. Citing her Christian beliefs about marriage, Stutzman told the client, Rob Ingersoll, she could not create flower arrangements for his wedding.
The first question asked by the justices concerned how this case was different from a hotel owner refusing to accommodate someone because of his race.
“This claim involves expression, and providing basic lodging and necessities does not involve expression,” Waggoner said. And furthermore, she added that the court must ask the question: “Is the objection based on the protected class status, or on the message? Because if it’s based on the protected class status, that’s very different.”
According to court documents, Stutzman had served Ingersoll on many occasions in the past, and even considered him a close friend. Because of that, Waggoner claims, it’s clear Stutzman wasn’t declining to serve the client based on his sexual orientation.
Rather, she maintains, Stutzman declined to create a custom floral arrangement because she believed it would portray a message that went against her sincerely held religious beliefs that marriage is between one man and one woman.
The court justices appeared hesitant to accept the notion that creating floral arrangements qualifies as creative expression.
“If we even get to the point where we might acknowledge that making floral arrangements is creative expression, what’s the limiting principle? Is it the landscape, architect, is it the bartender?” one of the justices asked.
“First of all,” Waggoner replied, “it only applies in the public accommodations context, and the business owner would have to have an objection to the expression, not to the person, but to the actual expression itself.”
Bob Ferguson, attorney general for the state of Washington—which is suing Stutzman—agreed that creating custom flower arrangements qualified as some form of public expression. But if a business is open to the public, he argued, it must serve everyone.
“A business can absolutely have a policy as long as they apply that policy equally and do not discriminate or refuse service or say we do not serve your kind when we come into your business,” he said.
Justice Charles Wiggins asked how far the state’s anti-discrimination law actually reaches, and whether it would apply to written or spoken sentiments. He provided the hypothetical example of an actor who objects to lending his voice for a political ad for a candidate who’s against same-sex marriage.
“Would that trigger free speech concerns?” Wiggins asked.
“A key question there is, is it a public accommodation,” replied Ferguson.
Even if the court finds that imposing the state’s anti-discrimination law on Stutzman in this context is a substantial burden on her religion, Ferguson added, the state has a compelling interest. He said:
“There is a difference, your honor, between the freedom to believe and a freedom to act. Ms. Stutzman or her religious expression, is free to believe what she wishes. But when she engages in public accommodations, and avails herself of the protections and the benefits that come with being a business, there are of course responsibilities that flow from that.”
Oral arguments were held in an unusual setting: Instead of a courtroom, the nine justices went on the road and heard the case at Bellevue College as part of a learning opportunity for its students.
According to a spokesman for Alliance Defending Freedom, a Christian nonprofit representing Stutzman, this is the fifth time the Washington Supreme Court has gone on the road this year, and roughly 20 percent of cases are heard away from the court.
Stutzman faces a fine of up to $2,000 for violating Washington’s anti-discrimination law and a separate fine of $7.91 (which Ingersoll says is the cost of driving to find a new florist). According to her lawyers at Alliance Defending Freedom, Stutzman’s legal fees are estimated to be seven figures.
During the hearing, another one of Stutzman’s attorneys called the personal liabilities imposed “both punitive and unwarranted.”
This is the second case of its kind to reach a state Supreme Court. In Aug. 2013, the Supreme Court of New Mexico heard a similar case about a photographer who declined to take pictures of a same-sex commitment ceremony because of her Christian beliefs.
In that case, the court ruled that the First Amendment did not protect the photographer’s right to decline service. Ferguson cited the New Mexico case during oral arguments, reminding the justices of the unanimous ruling.
This piece has been corrected to reflect Stutzman is 72.