To be clear, Mrs. Stutzman serves everyone regardless of sexual orientation or any other category. For nearly a decade, Messrs. Ingersoll and Freed used Mrs. Stutzman for their anniversary and Valentine’s Day needs, for example. Nevertheless, Mrs. Stutzman’s conscience won’t allow her to provide flowers to celebrate a same‐sex marriage, even for long‐time friends and customers. Mr. Freed’s Facebook posts expressing disappointment at the situation gained media attention, which caused the couple to receive enough free floral arrangement offers to have 20 weddings. Additionally, the Washington attorney general personally reached out to the couple. Both the couple and the state ended up suing Mrs. Stutzman for violating Washington’s antidiscrimination law.
The trial court ruled against Arlene’s Flowers and the state supreme court affirmed, holding that floral design did not constitute First Amendment‐protected artistic expression. The U.S. Supreme Court remanded the case for reconsideration in the light of its 2018 ruling in a similar context (except a baker instead of a florist) in Masterpiece Cakeshop v. Colorado Civil Rights Commission that state officials displayed anti‐religious animus and thus could not enforce their law. In the absence of similar anti‐religious red flags, it’s probably not surprising that the state supreme court reinstated its previous opinion almost verbatim.
Yet the U.S. Supreme Court precedent against compelled speech is strong. In West Virginia State Board of Education v. Barnette (1943), the Court ruled that school children could not be forced salute the flag and recite the pledge of allegiance. And in Wooley v. Maynard (1977), the Court found that New Hampshire could not require drivers to display the state motto (“live free or die”) on their license plates. (That case is why, if your jurisdiction has a default slogan—for example, “taxation without representation” in D.C.—it has to offer you an alternative if you ask.) In a pair of 2018 cases, NIFLA v. Becerra, and Janus v. AFSCME, the Court found that states could not force a pro‐life clinic to read a script advising patients on how to get an abortion, and that non‐union members of a collective bargaining unit could not be forced to pay for union speech with which they disagree, respectively.
The Court had the opportunity to tackle the issue of whether states may force wedding vendors to create cakes for same‐sex weddings in Masterpiece. But the Court didn’t reach the issue of whether the First Amendment—speech or religion clauses—protects a refusal to provide a product or service for a particular occasion, if so how to draw the line between professions that are and aren’t sufficiently expressive to gain that protection, or any other major controversy that continues to roil lower courts. Justice Clarence Thomas wrote a concurrence offering some guidance, but post‐Masterpiece state and circuit courts have diverged.
As it has in previous stages of this litigation, Cato has filed an amicus brief supporting Arlene’s Flowers—again joined by Reason Foundation and Individual Rights Foundation—urging the Supreme Court to take up the case and settle these issues and ambiguities after all. Cato is the only organization in the country to have filed briefs in support of both Jim Obergefell (lead plaintiff in the Supreme Court’s same‐sex marriage case) and Jack Phillips (owner of Masterpiece Cakeshop). It shouldn’t be so hard to see the difference between government action and individual conscience, to have official equality while letting a thousand flowers bloom.
