Washington Supreme Court Unanimously Treads on Important Freedoms

Today the Washington Supreme Court unanimously upheld the fines against florist Baronelle Stutzman for refusing to sell flowers to a long-time customer for his same-sex wedding. Even though the court acknowledged that Stutzman “has served gay and lesbian customers in the past for other, non-wedding-related flower orders,” it found that she had violated the state’s public-accommodations law. In doing so, it rejected her claims regarding the freedom of speech, association, and religious exercise in the face of a legal requirement that businesses not discriminate on the basis of sexual orientation.

I’m still working through the opinion, but it’s all pretty standard – and disappointing – stuff. Notably the court cites and rejects Cato’s brief regarding the freedom of expression, indeed rejecting even the idea that floristry is an expressive art. As I wrote in a blog post explaining this point:

Although floristry may not initially appear to be speech to some, it’s a form of artistic expression that’s constitutionally protected. There are numerous floristry schools throughout the world that teach students how to express themselves through their work, and even the Arts Council of Great Britain has recognized the significance of the Royal Horticultural Society’s library, which documents the history, art, and writing of gardening.

The U.S. Supreme Court has long recognized that the First Amendment protects artistic as well as verbal expression, and that protection should likewise extend to floristry—even if it’s not ideological and even if it’s done for commercial purposes. The Supreme Court declared more than 70 years ago that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” West Virginia Board of Education v. Barnette (1943). And the Court ruled in Wooley v. Maynard—the 1977 “Live Free or Die” license-plate case out of New Hampshire—that forcing people to speak is just as unconstitutional as preventing or censoring speech.

Also notably, Washington lacks a Religious Freedom Restoration Act (which is what saved the claims in recent high-profile cases Hobby Lobby and Zubik/Little Sisters of the Poor), so it’s not surprising that Stutzman’s free-exercise claim failed in the face of a generally applicable law. Of course, even a state RFRA failed to save a New Mexico photographer who had similarly worked for gay clients but didn’t want to work a same-sex wedding.

This isn’t the last that we’ll hear about the case; Stutzman’s lawyers have already announced that they’ll ask the U.S. Supreme Court to take it up.

But legalisms aside, these sorts of developments aren’t healthy for our society. There are scores of florists, photographers, and other vendors who would be happy to work all sorts of ceremonies; why do we need to bend every last minority dissenter to the wheel of prevailing ideology? Why can’t we be tolerant and just live and let live?