Gay-Hating Flower Lady Rebuffed By Supreme Court
For years, the anti-LGBTQ+ hate group Alliance Defending Freedom has been fundraising off of Arlene's Flowers — a Washington state flower shop not owned by Arlene, but rather by a woman named Barronelle Stutzman. Back in 2013, Stutzman refused to do floral arrangements for the wedding of gay couple Robert Ingersoll and Curt Freed — and in response, the state of Washington fined her $1000 and told her that if she was going to do floral arrangements for straight weddings, she had to do them for same-sex weddings as well. Just like she wouldn't be allowed to deny that service to people for being Black or Jewish. A lower court upheld the state's right to do this back in 2015.
We can assume the ADF raised a lot of money off of Arlene/Baronelle's Flowers, because there are a whole lot of people out there who would just feel a lot better about themselves if they had even one group they could discriminate against legally. But it is likely those days are over, because in a 6-3 decision, with Alito, Gorsuch, and Thomas dissenting, the Supreme Court has decided not to hear the case after all.
Which frankly, is a little surprising given the makeup of the court and all of the bad rulings from yesterday.
The case raised two separate legal questions under the U.S. Constitution's First Amendment. Stutzman's lawyers at the conservative Christian legal group Alliance Defending Freedom had argued that the state violated not only her right to religious expression but her free speech rights, too. The latter argument was based on the legal theory that arranging flowers is a form of creative expression protected in the same way as free speech.
The florist case was similar to the one that prompted the Supreme Court's 2018 ruling on narrow legal grounds siding with a Denver-area baker named Jack Phillips. The court said in that case that the state civil rights commission that imposed sanctions on Phillips was motivated by anti-religious bias.
But the Supreme Court in that case did not resolve a broader question: under what circumstances can religious beliefs be cited to win exemption from penalties under anti-discrimination laws. The justices opted not to use the florist case as another opportunity to do so.
I am not a lawyer, but the problem with the "arranging flowers is a form of creative expression protected in the same way as free speech" seems to be the fact that there really is no official way of designating whose work is or is not a form of creative expression. We have determined that restaurants cannot discriminate against who they will serve (outside of those lacking shoes or a shirt), but cooking can be a form of "creative expression" as well.
The fact is, the state has an economic interest in ensuring that its citizens are not being discriminated against. People don't necessarily want to move to or visit a state if they are going to experience discrimination or if they care about other people who might experience discrimination, which means there will be fewer people there to pay taxes and fewer tourist dollars, and that's bad all around for everyone. Including people like Barronelle Stutzman, whose business relies on things taxes pay for (like infrastructure! And roads!) and on people having money to spend on luxury items like flowers.
While we'd love to assume that this means that the only justices on the court who think gay people shouldn't be allowed to buy some damn floral arrangements for their wedding are Alito, Gorsuch, and Thomas, that's probably not true. The court found in favor of Masterpiece Cake Shop in 2018 and more recently found in favor of a Philadelphia adoption agency that discriminates against gay couples for Catholicism. There were both narrow rulings, but the fact is we probably do not have the justices to keep discrimination against LGBTQ people illegal forever.
As Vox's Ian Millhiser suggested on Twitter, it's likely that Barrett just didn't think this was the right case for overruling Employment Division v. Smith — a case that established that the state isn't required to accommodate religious beliefs when those beliefs violate "facially neutral laws of general applicability."
Or it could be because the ADF's lawyers suck and Barrett is holding out for a case where the bigot in question has better representation.
My other thought about why SCOTUS may have denied the Arlene Flowers case is that it was an ADF case, and ADF's law… https://t.co/DIiXmdiEpO— Ian Millhiser (@Ian Millhiser) 1625234054.0
So while this feels like good news, it's pretty likely that Barrett is playing the long game and wants to do this the "right" way, in hopes of establishing the right of Christians to discriminate against LGBTQ+ people for generations.
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse