Op-Ed

Arlene’s Flowers case judge got it right

Hugh Spitzer is on the faculty of the University of Washington Law School.
Hugh Spitzer is on the faculty of the University of Washington Law School.

Last February, a Benton County judge ruled that Arlene’s Flowers and its owner, Baronnelle Stutzman, violated Washington’s law against discrimination and the Consumer Protection Act by refusing to supply flowers for a same-sex wedding.

Judge Alexander Ekstrom’s decision is on appeal to the State Supreme Court. Stutzman asserts that laws making her sell a product for use at a same-sex wedding violate her religious rights and free speech.

As constitutional law professors – one who focuses on the Washington State Constitution and the other on our nation’s Bill of Rights – we thought it would be helpful to provide background on court rulings that for 140 years have made a clear distinction between laws that regulate religious beliefs and laws that regulate religiously-motivated actions that harm others.

In 2013, Stutzman told Robert Ingersoll that she would not provide flowers for his wedding with Curt Freed because of her relationship with Jesus Christ. When the state charged her with violating anti-discrimination laws, she argued that she was protected by the First Amendment’s Free Exercise Clause as well as the Washington Constitution’s Article I, Section 11, a religious freedom provision that guarantees “absolute freedom of conscience in all matters of religious sentiment, belief and worship.”

In our view, Judge Ekstrom correctly held that in enforcing the anti-bias law, the state did not interfere with Stutzman’s right to believe whatever she wants regarding same-sex marriage and to express those beliefs.

He quoted from Reynolds v. United States, an 1878 U.S. Supreme Court decision upholding Utah Territory’s anti-polygamy law against a free-exercise challenge. In that case, the Supreme Court stated that while government cannot interfere with religious beliefs and opinions, it may regulate religious practices that harm the community.

The 1878 court said that to permit any and every practice based on religious belief would “make the professed doctrines of religious belief superior to the law of the land, and in effect … permit every citizen to become a law unto himself.”

The court reaffirmed this principle in 1990, when Justice Antonin Scalia wrote for the Supreme Court in Employment Division of Oregon v. Smith that neutral laws of general applicability do not violate the Free Exercise Clause even if they proscribe conduct that one’s religion prescribes or prescribe conduct that one’s religion proscribes.

Similarly, our state Supreme Court held in 1998 that the Washington Constitution did not protect a Rastafarian religious group’s asserted “right” to use marijuana. While Washington’s Article I, Section 11 provides stronger religious freedom protections than the U.S. Constitution, our state’s religious freedom clause reminds us that “liberty of conscience shall not be construed to justify practices inconsistent with the peace and safety of the state.”

The bottom line is that, as the Reynolds case stated in 1878, “religious motivation does not excuse compliance with the law.”

When a company obtains a business license and provides goods and services to the public, it must follow laws that protect public health, safety and consumers. For many years, Washington has barred businesses from discriminating based on race, creed, color, national origin, sex, veteran or military status, and sexual orientation. Refusing to sell flowers to a same-sex couple is just as hurtful to them, and just as unlawful, as declining to serve African Americans at a diner or refusing to rent apartments to Jews and Muslims.

In decisions applying the Religious Freedom Restoration Act, the U.S. Supreme Court has ruled that some federal benefits programs must be adjusted to accommodate religious beliefs. For example, in Burwell v. Hobby Lobby Stores the Court held that rules mandating employer-provided insurance with access to contraceptives would not be applied to a closely held family corporation whose owners had religious objections if the contraceptives could be provided another way.

But Hobby Lobby applied a federal law requiring religious accommodation in the implementation of certain federal programs, not a First Amendment mandate. So the Hobby Lobby decision cannot be invoked by a person in Stutzman’s position as a basis for refusing to comply with a state anti-discrimination law.

As Ekstrom accurately wrote in his thoughtful opinion, “No court has ever held that religiously motivated conduct, expressive or otherwise, trumps state discrimination law in public accommodations.”

We think he got it right. Our federal and state constitutions strongly protect religious liberty, but not when religious practices harm others.

Hugh Spitzer and Peter Nicolas are on the faculty of the University of Washington Law School, where they teach a variety of federal and state constitutional law courses.

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