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Enforcing Nondiscrimination Laws Is Not a Sign of Anti-Religious Bias

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James Esseks,
Co-Director,
勛圖眻畦 LGBTQ & HIV Rights Project
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June 25, 2018

On Monday morning, the U.S. Supreme Court refused to take up another challenge to state nondiscrimination laws protecting LGBT people. Instead, it asked the Washington Supreme Court to take a fresh look at a case about a flower shop that refused to sell flowers to a same-sex couple for their wedding in violation of state law. The remand provides a chance for the state court to clarify the meaning of the Supreme Courts recent decision in Masterpiece Cakeshop as it applies to this case.

In 2017, the Washington Supreme Court ruled unanimously for the same-sex couple in Arlenes Flowers v. Washington, and theres no reason to think its analysis and ruling will change when it reconsiders the case in light of the Masterpiece Cakeshop decision.

The Masterpiece case involved Dave Mullins and Charlie Craig, a same-sex couple who went to a Denver bakery in search of a cake for their wedding reception. When the bakery refused to sell them a cake because they are a same-sex couple, they sued under Colorados longstanding nondiscrimination law. The bakery claimed that the Constitutions protection of free speech and freedom of religion gave it the right to discriminate regardless of the states civil rights law.

The Supreme Courts decision did not decide that question. Instead, it held that the Colorado Civil Rights Commission displayed anti-religious bias when ruling on Dave and Charlies discrimination claim. This bias, the court said, invalidated the commissions ruling against the bakery.

The constitutional problem that the Supreme Court found in the bakery case anti-religious bias by a government adjudicator is simply not present in the flower shop case. A ruling for the couple in Arlenes Flowers on remand would underscore that the Supreme Courts decision in Masterpiece Cakeshop does not provide a license to discriminate against LGBT people or against anyone else protected by nondiscrimination laws.

The facts in the Arlenes Flowers case are quite similar to the bakery case with one crucial difference. Rob Ingersoll and Curt Freed went to Arlenes Flowers, a local florist in their small Eastern Washington town, seeking flowers for their wedding. The flower shop refused to sell them flowers because of the owners religious objection to same-sex couples getting married. Rob and Curt had been planning a wedding with about 100 of their close friends and family, but after being turned away by the flower shop, they were fearful of being turned away by other vendors.

Consequently, they decided to scale their wedding back to a private ceremony at home with 10 people, which they could arrange with minimal help from outside vendors. Just as in Masterpiece Cakeshop, the state courts in Arlenes Flowers ruled unanimously that the flower shop unlawfully discriminated against Rob and Curt when it refused to sell them flowers. They also rejected the businesses claim that the Constitution gave them a right to violate the states discrimination law.

There is, however, one critical difference between Arlenes Flowers and Masterpiece Cakeshop: There is no evidence in Arlenes Flowers of anti-religious bias on the part of the Washington courts that ruled against the flower shop. In fact, the Washington courts have repeatedly recognized the importance of religious freedom.

Alliance Defending Freedom, the anti-LGBT group that represents both the bakery and the flower shop, is arguing that Washington Attorney General Bob Ferguson displayed anti-religious bias that violates the rule set forth in the Masterpiece Cakeshop decision by seeking to enforce the states anti-discrimination law against the flower shop.

Its the job of the Washington attorney general to enforce the states laws, including its laws barring discrimination. Bringing a charge of discrimination against a business that is open to the public but turns away customers because they are LGBT is not an anti-religious act, its the neutral enforcement of the law. Attorney General Ferguson has repeatedly sought to enforce the Constitutions protections for freedom of religion, for example, by challenging the Muslim ban to stop the federal governments explicit discrimination against people based on their religion.

The remand of Arlenes Flowers to the Washington Supreme Court provides an opportunity for that court to make clear that enforcing civil rights laws is not a sign of anti-religious bias and to reject the argument that the state violated the U.S. Supreme Courts decision in Masterpiece Cakeshop.

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