[The following is a hypothetical only, as I don’t pretend to know everything about the parties and their views.]
Suppose that you are a solo law practitioner in the town where Arlene’s Flowers is located. You have long known that Barronelle Stutzman has strong traditionalist religious views, viewing marriage as a lifelong commitment between a man and a woman, that sexuality should only be expressed in marriage that is open to life, etc., and thus is religiously opposed to divorce, contraception, abortion, and same-sex marriage. Although your own religious views are very different and indeed you vehemently disagree with Barronelle, you have a policy of not discriminating on the basis of religious and so have represented her on more than one legal matter, including drafting wills for her and her husband, reviewing a contract that she had with a company who supplied florist materials to her, etc. Now she has come to you and reported that the Attorney General is suing Arlene’s Flowers because she declined to apply her florist professional skills to create a flower arrangement for a same-sex marriage ceremony, as she did not agree with the message of approval conveyed by her professional services. She asks you to represent her in defending against the Attorney General’s suit by asserting her First Amendment religious liberty. If you refuse to represent her in a religious liberty defense, arguing that you don’t want to apply your legal professional skills to promote a message with which you disagree, should that choice be regarded as the equivalent of invidious religious discrimination? Isn’t your decision not to apply your legal professional skills to advance a message with which you disagree really the same in substance to her decision not to apply her florist professional skills to a ceremony with which she disagrees? Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, October 10, 2016 9:40 AM To: conlawp...@lists.ucla.edu; Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Noteworthy, puzzling scholars' brief in Arlene Flowers Some of you may be familiar with the Washington v. Arlene's Flowers case, which will be argued in the Washington Supreme Court next month. Barronelle Stutzman and her husband are the owners of Arlene’s Flowers, Inc., a closely held for-profit corporation. Over the course of nine years, Stutzman regularly sold floral arrangements to Robert Ingersoll, knowing that he was gay. When Ingersoll asked Stutzman to sell him flower arrangements for his wedding to Curt Freed, however, she refused to provide them, even if they were prepared by others in her shop, because doing so, she claimed, would "constitute a demonstration of [her] approval for the wedding," whereas in fact she has religious objections to same-sex marriages. (She agreed to provide the raw materials for the arrangements--the flowers and such--but not to have her shop do the arranging.) The Washington Attorney General sued Arlene's Flowers, seeking an injunction against such discrimination in the future. (Ingersoll and Freed also sued, seeking nominal damages for the costs they incurred when Stutzman refused to serve them.) The principal basis for the suit is a claim of discrimination on the basis of sexual orientation, prohibited by the Washington Law Against Discrimination (WLAD), RCW 49.60.215, which provides that "It shall be an unfair practice for any person or the person's agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, . . . or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement." The forms of prohibited discrimination are listed in RCW 49.60.030: "The right to be free from discrimination because of race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right. This right shall include, but not be limited to: . . . (b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement." Stutzman defended on both statutory and state and federal constitutional (Free Speech and Free Exercise) grounds; but the lower court ruled<http://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Home/News/Press_Releases/2015/Arlene%27s%20Flowers%20summary%20judgment.pdf> in favor of the Attorney General. The appeal from that decision is now before the Washington Supreme Court, which will hear arguments in about five weeks. A couple of weeks ago, a group of 27 scholars, some of whom are on these listservs, filed an amicus brief<http://mirrorofjustice.blogs.com/files/smith-brief.pdf> on behalf of Arlene's Flowers. (According to Rick Garnett, it was written by Steve Smith, although he is not listed as counsel.) That brief does not make a constitutional argument at all. Instead, it argues (as I read it) that the Court should construe the Washington antidiscrimination statute so as not to include Stutzman's refusal as prohibited discriminatory conduct in the first place. The theory of the brief, such as it is, is that Stutzman must not have been engaged in discrimination on the basis of sexual orientation, since she was willing to make arrangements for Ingersoll--a man who she knew was gay--for purposes other than his marriage. The lower court erred, according to the brief, "[i]n erroneously treating the religious conviction Stutzman does have as equivalent to a different and more troublesome objection that she does not have." She doesn't discriminate against gays and lesbians -- "only" against same-sex marriage. I, for one, find this argument to be rather alarming, and, best I can tell, indefensible. As the Washington AG writes in his brief (responding to a similar argument that Stutzman offered), "discrimination is discrimination, whether it is complete or partial. An employer cannot say: 'I hire women, but because of my religious belief that women should be subservient to men, I will not hire women to supervise men.' Similarly, it is irrelevant whether Defendants generally serve gay and lesbian customers; their refusal to serve the weddings of gay and lesbian customers is still prohibited discrimination." That's obviously right, isn't it? The cases demonstrating it are legion. Bob Jones University, for example, surely discriminated on the basis of race by prohibiting students from interracial dating, even though it admitted black students. Would anyone have argued with a straight face that the university did not discriminate on the basis of race, and that it was error to treat BJU's rule "as equivalent to a different and more troublesome objection that it does not have [i.e., to exclude black students altogether]"? And I'm hardly an expert on Washington state law, but there's every indication that its statutes also reflect this idea--see, e.g., the bolded passages quoted above, including the reference to "full enjoyment." To be sure, it would be even worse if Stutzman categorically refused to serve gays and lesbians; her refusal "only" in the context of a same-sex marriage thus is not as problematic and disturbing as such a categorical "Gays not served here" policy would be. But, understandably, Washington law, like the analogous laws of the federal government and virtually every state, has made it unlawful to engage in both categorical and selective discriminatory refusals to serve. There is no reason (none that the brief offers, anyway) to think that the Washington legislature did not mean to proscribe discrimination in cases where the commercial proprietor "hates the sin but loves the sinner." The amicus brief's only response to this, far as I can tell, is to argue (pp. 8-9) that Arlene's Flowers is not discriminating on the basis of sexual orientation because Stutzman would also refuse to sell flower arrangements for a marriage between, e.g., two heterosexual men, and she would sell arrangements to, e.g., a gay man and a lesbian who were marrying one another. I hope I don't need to explain why this argument is, and ought to be, dead in the water. I'll add only this: Paul Clement offhandedly offered the same argument as to DOMA in his brief<http://sblog.s3.amazonaws.com/wp-content/uploads/2013/01/BLAG-merits-brief-1-22-131.pdf> for BLAG in Windsor ("A marriage between a man and a woman would fall within DOMA’s definition even if one or both spouses were homosexual. Similarly, the marriage of two men would fall outside the definition even if both were heterosexual."); but at least he had the good sense to bury it in a footnote and otherwise not rely upon it. Not surprisingly, not a single Justice in Windsor considered this virtually buried "argument" even worth discussing. Likewise, Kentucky ran the argument in its brief<http://sblog.s3.amazonaws.com/wp-content/uploads/2015/03/14-574_-bs.pdf> in the Obergefell set of cases (see p. 26) just a bit more aggressively than Clement did--promoting it to a single textual paragraph. Again, no Justices thought it worthy of discussion; the majority, however, implicitly rejected it out of hand when it wrote: This dynamic also applies to same-sex marriage. It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. The scholars' amicus brief in Arlene's Flowers does not even contend with these fairly important precedents. Nor does it even discuss the statutory language of the Washington law, or its purpose, history, or judicial construction. It's hard to imagine the amici think their statutory construction argument will find favor with any of the Justices of the Washington Supreme Court. Reading the Washington law to cover this case is not "stretching" or "distension [sic]" of the statute, as the brief argues: It's standard-issue fare. So what explains the brief? Is there more to be said for it than what I've described?
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