While the U.S. Supreme Court’s 2023 rulings didn’t set off the seismic shift of last year’s decision eroding the constitutional right to abortion, the justices did give Christian conservatives another key victory this summer.
In June, a majority sided with a Christian business owner who refused to design wedding websites for same-sex couples, eroding public-accommodation protections, particularly for those in the LGBTQ+ community.
Advocates, legal scholars and government officials have plenty of questions about what a case from Colorado could mean for businesses in Washington and the 44 other states that prohibit discrimination against protected classes. Within that group, about two dozen states include sexual orientation and gender identity as a protected class.
But most agree that the June decision was nowhere close to resolving the conflict between civil-rights era anti-discrimination laws and individual constitutional rights under the First Amendment.
“A lot is changing in the court, and public accommodation laws are on the defensive,” said Andrew Siegel, a constitutional law professor at the Seattle University School of Law.
This year’s Supreme Court ruling came nearly two years after Barronelle Stutzman, the now-retired owner of Arlene’s Flowers in Richland, Washington, settled a multi-year legal case spurred by her refusal to provide custom floral arrangements for a same-sex wedding because of her Christian beliefs.
The Washington Supreme Court ruled in 2017 — and again affirmed after the U.S. Supreme Court sent the case back in 2021 — that Stutzman had to follow the state’s public-accommodation laws because floral arrangements did not constitute speech or expression of support for same-sex marriage. The U.S. Supreme Court declined to hear the case in 2021 — and the opportunity to address whether prohibiting discrimination on the basis of race, sexual orientation or other protected class can be set aside to preserve an individual’s First Amendment rights.
In June, the conservative majority on the U.S. Supreme Court made it clear in its ruling on 303 Creative LLC v. Elenis that the state of Colorado cannot enforce its public-accommodation laws with Lorie Smith, the web designer who does business as 303 Creative, as the regulations violated her free-speech protections.
The three liberal Supreme Court justices made their displeasure known in a dissenting opinion stating that the majority ruling had allowed a particular kind of business a “constitutional right to refuse to serve members of a protected class.”
Neither side is completely satisfied
Legal experts don’t expect a massive change in law or practice, for now, in Washington or other states, concerning the way they enforce their public-accommodation and anti-discrimination laws.
But they do anticipate more cases coming through the courts to answer the questions the Supreme Court left on the table. They expect more lawsuits will seek to erode anti-discrimination laws, including a broader ruling that would enable widespread religious-expression exemptions.
Washington Attorney General Bob Ferguson acknowledged the ruling would change somewhat the state’s ability to enforce its laws, but he believes the majority of businesses would still have to follow Washington’s antidiscrimination statutes.
“The vast majority of Washington businesses — selling goods and services other than custom-designed products — must still abide by the clear anti-discrimination mandates in our state,” Ferguson said in his statement to Crosscut in late June. “If they don’t, my office will take action.”
Legal experts believe an end game is coming that will decide whether religious objection trumps civil equality/civil rights. And they are paying attention.
The June Supreme Court ruling looks only at free speech. That means businesses that don’t express speech through their goods and services — for example, hotels and retailers that offer off-the-shelf goods — still have to comply with anti-discrimination laws.
Religious freedom groups are far from satisfied with the recent ruling, said Dallan Flake, an associate professor at Gonzaga University School of Law. These groups are going to continue seeking, and bankrolling, cases to gain additional religious exemptions from public-accommodation laws.
“They have this agenda,” Flake said. “They are trying to push religious freedom further and further.”
And some day it could go as far, Siegel said, as all businesses having the constitutional right not to serve certain customers in the name of religious expression.
Public-accommodation laws change over time
Many states’ public-accommodation laws date back several decades, some crafted during the civil-rights era of the 1950s and 1960s. Thirty-one states — and Washington D.C. — had such anti-discrimination laws in place by the time Congress passed The Civil Rights Law of 1964, a comprehensive law that prohibited discrimination on the basis of race, color, religion, sex or national origin.
Washington was among those states where public-accommodation laws were in place prior to the federal law. In fact, the earliest and most basic version of Washington’s public-accommodations policies dates back to March 1890, just months after Washington became the 42nd state in November 1889. The law established “that all persons within the jurisdiction of the State of Washington shall be entitled to the full and equal enjoyment of the public accommodations … applicable alike to all citizens of whatever race, color or nationality.”
In 1949, the Washington Legislature passed a law establishing a commission that would enforce the “law against discrimination of employment” on the basis of “race, creed, color or national origin.”
The law would be revised several times over the decades to add protected groups, for example people using service animals and mothers breastfeeding in public. The law would also be revised to embrace additional areas in which discrimination of protected classes is prohibited, such as purchasing real estate. Sexual orientation and gender identity were added as protected classes in 2006. Half of U.S. states did the same, including Oregon, California and Nevada.
The pushback by conservative religious groups against such laws has increased in recent years as more states have added sexual orientation and gender identity as protected classes, said Siegel from Seattle U. This has led to current efforts to broaden religious exemptions to include providing goods and services to particular clients, particularly those in the LGBTQ+ community.
One of these high-profile efforts involved Stutzman, the now-retired floral-shop owner in southeastern Washington.
By all accounts, Stutzman and longtime customer Robert Ingersoll were friends before Ingersoll came into the shop seeking custom floral arrangements for his wedding to his partner Curt Freed.
According to Stutzman’s 2018 video account on the YouTube page for Alliance Defending Freedom, there was no apparent animosity between her and Ingersoll when she declined to provide the arrangement on the basis of her faith.
But then the couple, with support from the ACLU, and Ferguson filed suit in 2013, seven years after sexual orientation was added as a protected class in the state’s public-accommodation law. Both cases were later consolidated into a single case.
Stutzman said she was in shock and painted the action as coming from outside forces — the ACLU and the state Attorney General’s Office — threatening her and her business and infringing on her right to live her Christian faith.
“Will I let the government force me to create art expressing things I don’t believe in? No!” she said in the video.
The couple, in a 2015 Seattle Times op-ed, made it clear why legal action against their “favorite floral shop” was necessary.
“We decided to speak out at length now for the first time so that people can better understand just how the incident of discrimination has affected us,” they wrote.
In 2015, Benton County Superior Court Judge Alexander Ekstrom ruled that Stutzman discriminated against the couple and broke the state’s consumer protection and anti-discrimination laws.
Meanwhile, in other states
While the Arlene’s Flowers case was going through Washington courts, a different business owner — a Colorado cake-shop operator — was pursuing a legal case over his refusal to sell a custom cake to a same-sex couple.
In 2012, Jack Phillips, owner of Masterpiece Cakeshop outside of Denver, refused to sell a custom cake for the wedding of Charlie Craig and David Mullins, saying it was a violation of his religious beliefs.
In 2018, the U.S. Supreme Court ruled in favor of Phillips, but that decision was based on the hostility of a state agency toward the baker’s religious beliefs, not on whether he had a constitutional right to skirt Colorado’s public-accommodation law.
While that case was before the U.S. Supreme Court, a transgender woman tried to order a cake for a gender-transition celebration from Phillips’ shop. When he again refused on the basis of his religious beliefs, the commission again tried to enforce Colorado’s anti-discrimination laws but backed off after Phillips filed suit. However, the woman decided to sue Phillips on her own in state court. Last year a Colorado appeals court ruled that Phillips must make the cake under the state’s anti-discrimination laws. Phillips has since appealed to Colorado’s Supreme Court.
Flake, the Gonzaga University law professor, anticipates that in due time new cases in the lower courts will test whether Washington’s anti-discrimination law is in direct conflict with constitutional free-speech protections.
The June U.S Supreme Court ruling may encourage more people to pursue these cases, he said. “I would imagine this mentality shift where people [feel they] have more freedom of speech than they actually do.”
More legal cases to come
Despite the Washington Supreme Court ruling on the Arlene’s Flowers case, Alliance Defending Freedom senior counsel Jonathan Scruggs maintains that Stutzman’s custom floral arrangements were an expressive act and could have had a different outcome if relitigated after the 303 Creative ruling.
“You’re going to have some clear situations where this is clearly protected speech,” he said. “There are other situations where it will be more fact-specific.”
Scruggs emphasized that the ruling is “a good thing for all people.”
“The real question is who do we want to decide what we can or can’t say?” he said. “The First Amendment says it’s better for each individual to decide.”
For Rose Saxe, deputy director for ACLU’s LGBTQ & HIV Project, the recent ruling is a reversal, albeit a narrow one, of the civil rights of those who identify as LGBTQ+.
The reason sexual orientation and gender identity were added as protected classes in state public-accommodation laws is because of the ongoing discrimination against members of the LGBTQ+ community in everyday functions such as purchasing a good or service or seeking employment.
“We knew the harm it causes people if you have to second-guess yourself in every encounter — going to a hotel room or picking up a rental car,” Saxe said.
While the recent 303 Creative ruling is narrow, at the end of the day, the U.S. Supreme Court has run contrary to longstanding civil-rights-era laws by allowing even a subset of businesses to discriminate against LGBTQ+ individuals under the premise of free speech, said Siegel, the Seattle University law professor.
While it’s clear that First Amendment provisions don’t apply to many businesses and public accommodation actions, Saxe says it remains unclear which speech defenses to anti-discrimination law might pass muster under the 303 Creative ruling.
Alliance Defending Freedom is looking to test just that in a number of cases involving providing services and goods to members of the LGBTQ+ community, such as requiring a foster parent to acknowledge a person’s gender identity through using preferred pronouns or taking photographs at a same-sex wedding.
The organization maintains that public-accommodation laws have been applied too broadly, so that they force people of any religious belief or affiliation to say or express things that are against their beliefs.
The Alliance Defending Freedom also represents Phillips, the Masterpiece Cakeshop owner. On a web page highlighting Phillips’ legal journey, the organization states that Phillips “has the right to decline to use his artistic abilities to express messages or celebrate events he disagrees with.”
“The local laws don’t get to override our Constitution,” Scruggs said.
But the Alliance Defending Freedom pursues cases pushing the question of whether the expression of the LGBTQ+ community members matter less than that of the business owner, Saxe said.
Ingersoll and Freed, in the 2015 Seattle Times op-ed, said they weren’t seeking a blessing or approval of their lifestyle, but rather just a floral arrangement that would match the theme of their wedding, which represented their expression of love.
Other free-speech cases have handed a loss to LGBTQ+ communities, such as one that involved organizers of a St. Patrick’s Day parade who refused to admit LGBTQ+ community members, or another that gave the Boy Scouts of America a constitutional right to prohibit openly gay members.
Like the 303 Creative case, those rulings were narrow. Even before its current iteration, the U.S. Supreme Court was sending a message that discrimination against LGBTQ+ people is deemed less troubling than other kinds of discrimination, the ACLU’s Saxe said.
“It’s incredibly disheartening that in all of those conflicts … new rules [specifically for LGBTQ+] get created,” she said.
The recent ruling “sends signals there are some justices on the court” who could support a broader ruling that would enable all businesses to skirt anti-discrimination laws in the name of religious freedom as well, Siegel said.
And a Supreme Court ruling that allows religious exemptions to public-accommodation laws could apply to all businesses, not just ones that involve expression or speech, he said.
“That would be the major sea change that people are worried or excited about,” he said. “That would mean effectively restaurants, hotels, caterers and everyone else can discriminate.”
Saxe anticipates great harm if religious exemptions are applied to anti-discrimination laws.
“LGBTQ+ residents [could] go back to a time where they fear being turned away because of who they are,” she said.
She doesn’t expect this huge change right away, namely because it would have to change the established legal standard drastically if it wanted to allow religious exemptions to laws that don’t specifically target or involve religious expression.
“It’s complicated to balance all those competing interests,” she said. “There are multiple faiths, there are multiple interpretations of faith.”
But Saxe said, however, that the June ruling shows the current conservative U.S. Supreme Court majority is “willing to change that standard but just doesn’t know what it looks like.”
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