Discrimination isn't Rational or Compelling

Arlene's Flower shop attempts to warp the Free Exercise Clause into a justification for discrimination.

By David A. Perez May 21, 2013

What started as a routine flower sale has become the most high-profile civil rights suit that the State has seen in years. Newly-elected Washington Attorney General Bob Ferguson has filed a lawsuit under the Consumer Protection Act against Barronelle Stutzman, a florist who owns Arlene’s Flowers in Richland, for refusing to sell flowers to a gay couple for their upcoming wedding. Stutzman, who opposes same-sex marriage on religious grounds, said that she would not create the floral arrangements because of her Christian faith.

The Attorney General’s Office filed suit, alleging that Stuzman’s decision to discriminate against the gay couple violates the Washington Law Against Discrimination (WLAD), which is a per se violation of the State’s Consumer Protection Act. The Attorney General is asking the court to compel Stutzman to stop denying floral arrangements to gay and lesbian couples.

This isn’t the standard “slippery slope” argument that is so often abused.  This is real. The commonplace services that Arlene’s Flowers provides. shows that the same discrimination could be applied just as easily to other parts of the marketplace.

Stutzman’s lawyers have now filed an answer and a counter-suit against the Attorney General, arguing that the State’s attempt to force her to provide floral arrangements for same-sex weddings “would be contrary to her sincerely held religious beliefs.”  Based on that assertion, she argues that the State is violating her freedom of religion.

Stutzman’s “religious freedom” defense, which is based on the First Amendment’s Free Exercise Clause, isn’t new. The same arguments are being used to justify denying photography services to gay couples in New Mexico, declining to host a same-sex wedding at a reception hall in Vermont, and refusing accommodations to a lesbian couple at a bed and breakfast in Hawaii.

In fact, recently proposed legislation sponsored by Sen. Sharon Brown (R-Kennewick), and ten other Republican state senators, which would permit businesses like Arlene's to deny services to customers based on their “sincerely held religious beliefs,” isn’t new either. The Arizona House of Representatives passed a bill last week, which would allow any business to discriminate against LGBT individuals based on their religious objections to homosexuality.

In analyzing Stutzman’s free exercise claim, the threshold questions that the court will ask are (1) whether the law is neutral vis-à-vis religion, and (2) whether the law is “generally applicable.” The neutrality inquiry focuses on the law’s intent, asking whether its objective is to “infringe upon or restrict practices because of their religious motivation.” The general applicability inquiry goes on to ask whether the law selectively burdens religious beliefs.

Even if a law has some incidental burden on religious practices, so long as it’s neutral and generally applicable, then the state only needs to show that it’s rationally related to some legitimate policy to pass constitutional muster. This is the so-called “rational basis test,” which is a very low bar, and highly deferential to the State.

The court is likely to apply the highly deferential (to the state) rational basis test, for two reasons.

First, the law is neutral towards religion—that is, there is no evidence that the lawmakers who enacted the 2006 amendment to the WLAD—which prohibited discrimination on the basis of sexual orientation—were motivated by any anti-religious sentiment.   Nor is there any evidence that the dual-enforcement provisions of the WLAD (which allow the Attorney General to enforce the WLAD through the Consumer Protection Act) were motivated by any animus towards religious activity.  Nor is there anything to suggest that the Attorney General’s Office filed this suit, in part, to target religious activity.

"Discrimination threatens not only the rights and proper privileges of its inhabitants, but menaces the institutions and foundation of a free democratic state."

And second, the law is generally applicable: the WLAD does not single out religious activity—discrimination on the basis of sexual orientation in the marketplace is prohibited, even if that discrimination is not motivated by any underlying religious belief.

If the court does conclude that the law is neutral and generally applicable, then "rational basis" applies and the court will simply ask whether the State has some rational justification for the law. Again, that's a very low bar: the State can point to any number of reasons why it would want to stop discrimination on the basis of sexual orientation.

To disprove the law’s general applicability, and get the court to apply a tougher standard, Stutzman is arguing that the state is selectively enforcing the law against those who profess a religious objection to same-sex marriage.  If there’s evidence that the State has selectively enforced the WLAD to target religion, while declining to enforce it in other contexts—then Stutzman might be able to rebut the law’s otherwise clear-cut general applicability. 

If Stutzman succeeds, then the court will apply a more onerous test than rational basis: strict scrutiny.  To pass muster under strict scrutiny, a law (as written or as applied) must be related to a “compelling state interest” (not just rational) and must be “narrowly tailored” to protect that interest. This is a much harder test to meet.  Many laws and policies have fallen on the sword of strict scrutiny. 

Nevertheless, even if the court decided to apply strict scrutiny, the State is still likely to prevail. Here's why.

First, let’s see whether there’s a “compelling state interest” at stake. Stutzman’s attorneys argue that the State has no compelling interest because there are “plenty of florists . . . willing to assist in same sex ceremonies.”  But Stutzman appears to misstate the State’s compelling interest in this case.  The State’s interest isn’t limited to floral arrangements—it is much more than that.  The preamble to the WLAD states the following:

"Discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state."

With this statement, the legislature articulated a strong state interest in eradicating the types of discrimination that the WLAD singles out.  This interest is necessarily inclusive of floral arrangements, but also everything else that happens in the marketplace: grocery shopping, furniture sales, bathroom renovations, eating out at restaurants, or enrolling your children in little league Baseball.

The stakes are much higher than simply having to drive to another florist: if Stutzman can refuse to serve gays and lesbians floral arrangements because they are gay, then what’s stopping certain shops and restaurants from putting up signs that say “Straight Only” or “No Gays”?  What would stop a movie theatre owner who opposed the so-called “gay lifestyle” on religious grounds from putting up a sign that says “No Gay Dates”?  After all, allowing gays and lesbians to attend his theatre on dates might facilitate more same-sex marriages.

Or, to stick with the floral arrangements example, what if two lesbian high-school students came into Arlene’s Flowers to purchase a corsage for their Senior Prom?  Imagine the humiliation and embarrassment that those students would feel if they were denied flowers simply because they wanted to go to their prom together.  (Recall that the suicide rate for LGBT teens is eight-times the suicide rate for the general population.)

This isn’t the standard “slippery slope” argument that is so often abused.  This is real. The commonplace services that Arlene’s Flowers provides—bouquets—shows that the same discrimination could be applied just as easily to other parts of the marketplace. The State made a policy decision in 2006 to include “sexual orientation” as one of the proscribed forms of discrimination that this State will no longer tolerate—because it “menaces the institutions and foundations of a free democratic state.” 

Invocations of religious liberty are used to invert perceptions of who's being oppressed to get courts to focus on the discriminator’s right to discriminate.

Stutzman will have a hard time convincing a court that the State’s interest is not compelling.

But just because the State has a compelling interest in stopping discrimination against LGBTQ individuals in the marketplace, does not mean there aren’t other interests at stake; namely, the religious liberty interest that Stutzman invokes. This is where the “narrowly tailored” inquiry comes into play: this inquiry asks whether the State’s actions are the least restrictive way to protect that compelling interest—meaning, the State does not burden any more religious freedom than absolutely necessary.

Answering the “narrowly tailored” inquiry requires us to identify, with precision, the religious freedom that business owners like Stutzman are asserting.  Is it the freedom to believe that same-sex marriages are wrong?  Or is it the freedom to refuse services to a category of individuals because of who they are?  This is an important distinction.

Stutzman’s “sincerely held religious beliefs” may very well compel her to oppose same-sex marriage.  That’s not in dispute. But requiring Stutzman to sell flowers to gay customers on an equal basis with straight customers does not force her to change or disavow that belief. It simply requires her, as a condition for having a state-licensed business to sell flowers, not to deny flowers to people on the basis of their sexual orientation.  In this way, it appears the State’s actions are narrowly tailored to protect an otherwise a compelling state interest: they only require her market transactions be conducted without regard to her customers’ sexual orientation.  Or, put differently, the WLAD does not infringe on any more “religious freedom” than absolutely necessary. (The gay marriage law did make an exemption for religious institutions that didn't want to perform gay marriage ceremonies because that, in fact, would force them to disavow their beliefs.)

In sum, whether the court applies rational basis or strict scrutiny, Stutzman is unlikely to prevail.

But cases like these serve as important reminders that for centuries the Free Exercise Clause has been used to protect religious minorities from state-sponsored discrimination.  But it’s also been invoked to justify religiously-motivated discrimination. Just as this clause was used to justify segregation during the Civil Rights Movement, religious liberty is now being invoked to deny LGBTQ individuals equal accommodations. 

Now, instead of Blacks being denied a seat at the lunch counter, LGBTQ individuals are being denied flower arrangements, hotel rooms, pictures, and more. Floral arrangements are no more banal than a lunch counter. Then, as now, invocations of religious liberty were used to invert perceptions of who's being oppressed and get courts to focus on the discriminator’s right to discriminate. But courts wisely rejected that warped version of the Free Exercise Clause, and today reception halls can’t get away with saying they won’t host an interracial marriage because their religion “frowns on that sort of thing.”

Given the stakes today, courts are unlikely to be persuaded by the religious rationale for discrimination on the basis of sexual orientation.

PubliCola's LawNerd David A. Perez is an attorney in Seattle. He received his B.A. from Gonzaga University and his J.D. from the Yale Law School.


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