Attorney General Bob Ferguson knew he was in for a high-profile dispute when he filed a consumer protection lawsuit on April 9 against a florist in Richland, Washington. As Ferguson acknowledged that afternoon, "We may be in for a lengthy legal battle."
At the center of the case is Barronelle Stutzman, the owner of Arlene's Flowers & Gifts, who refused last month to provide flower arrangements for a same-sex wedding because of her "relationship with Jesus," as she told The Stranger at the time. Stutzman wouldn't "participate in the wedding," as she put it, because her Christian faith dictates "that marriage is between a man and a woman."
But if anything appears more cut-and-dried than Stutzman's faith, lawyers for the state say, it is a 2006 state law prohibiting discrimination. The lawsuit filed in Benton County alleges that when Stutzman refused to provide goods or services in a place of public accommodation on the basis of sexual orientation, she was violating the state's Civil Rights Act and was, therefore, also violating laws designed to protect consumers. Businesses that sell wedding flowers to opposite-sex couples must provide equal wedding services to gay couples, the state says.
As a deluge of national media coverage is making clear, this case is quickly emerging as the first major test of antidiscrimination protections since Washington State voters legalized same-sex marriage last fall. It is also a rare—if not unprecedented—instance of the government initiating an antidiscrimination suit. With the florist's lawyers apparently itching for a fight, the case seems poised to reach the state supreme court as a test of religious liberty legal defenses.
And, meanwhile, a second legal battle is in play.
The day after the attorney general filed the suit on behalf of the state, the couple that had been denied flowers for their wedding made Stutzman a loaded offer. Working with their attorneys and the legal powerhouse that is the ACLU of Washington, that couple—Robert Ingersoll and Curt Freed—sent a letter to Stutzman saying she has two options: (1) She can vow to never again discriminate in her services for gay people, write an apology letter to be published in the Tri-City Herald, and contribute $5,000 to a local LGBT youth center, or (2) she can be sued by them in a second lawsuit.
Refusing to sell the flowers "is a disturbing reminder of the history of discrimination and disparate treatment that they and other gay men and women have experienced over the years," wrote the couple's lawyers at the firm Hillis, Clark, Martin & Peterson, who added sharply, "More to the point of this letter, your conduct was a violation of Washington law."
When asked for her reaction this week, Stutzman told me she was feeling "peachy keen," but she deferred to her legal team for comments on the lawsuit.
Snohomish County lawyer JD Bristol is leading a dozen attorneys and six organizations to represent Stutzman. Bristol says he plans to litigate against the state's lawsuit and is prepared to fight the couple in court, calling their settlement offer "extortion." Bristol insists the flower shop "loves their gay customers," as proven by the fact that they served the couple before the wedding, and "now it's the homosexual groups forcing their values on others."
Bristol argues that his client was not discriminating against the couple's sexual orientation—rather, she was exercising her religious conscience by refusing to take part in a gay wedding. (Although the couple says they don't want her to participate, Bristol says florists must attend wedding venues to set up the arrangements, thereby constituting participation.) If a Christian is legally required to make bouquets for a gay wedding, Bristol argues, "A Jewish web designer would have to design a website promoting jihad." Finally, Bristol contends that arranging flowers is an act of personal expression, so any restriction on how and where she sells flower arrangements infringes on her First Amendment right to free speech.
However, Ingersoll and Freed's counsel appears to address that argument. "We respect your beliefs and your right to religious freedom," they write. "However, we live in a diverse country, and religious beliefs, no matter how sincerely held, may not be used to justify discrimination in the public spheres of commerce and governance. Instances of institutions and individuals claiming a right to discriminate in the name of religion are not new. Religious beliefs have been invoked to justify denying women the right to vote; to prohibit men and women of different races from getting married; and to support segregation in schools, businesses, and other public places. Just as courts have held that those forms of discrimination are not permitted, even on the basis of sincerely held religious beliefs, so is discrimination based on sexual orientation unlawful."
Stutzman's lawyers have also argued that Attorney General Ferguson has no legal authority to file the lawsuit. Ferguson, of course, disagrees. He is asking the court to bar Stutzman from discriminating in the future and pay $2,000 for any additional violations.
"She runs a business," Ferguson says, "and you can't discriminate when running your business, so it is appropriate for the attorney general to bring a consumer protection action."
Right on cue, religious conservatives began thrashing back. The day after the state filed suit, the National Organization for Marriage (NOM) tried to canonize Stutzman by saying on its blog that she's "being forced out of the public square." Then the Family Policy Institute of Washington jumped in to decry the seven-year-old antidiscrimination law as "bad then... bad now." The group is one of many that may support Stutzman's legal defense. NOM also cited one of my recent blog posts about the couple to make the point that "whenever marriage is redefined, it's the end of full religious liberty."
Because, you know, any shopkeeper in America should be able to use the Bible as their sole justification for turning away gays. That's the same way they tried to use the Bible to bar women from voting booths and mixed-race couples from wedding chapels. Even though they lost those fights, this—flowers for gay people—this is the end of all religious liberty.
I'm used to that brand of crazy.
But I wasn't expecting so many murmurs from other people—gay people and liberal people—who are tsk-tsking the attorney general and the couple. These critics are prolific in social media and comment threads, saying that gay-rights activists are playing into NOM's hand by making Stutzman a martyr. They say this is the wrong lawsuit over a nonessential transaction.
"This is just becoming the stupidest thing ever," one commenter wrote on Slog, the Stranger blog. "Why couldn't they just go to another florist and give the rest of us a heads-up to boycott this joint? You want a written apology? Really? Instead, this crap is going to be dragged to the courts and get all the other antigay nut jobs all worked up about the threat we pose to their freedom of blah blah blah." And a friend wrote to me: "Let's not pretend this is in the same ballpark as a segregated lunch counter. This is just piling it on, perpetuating the 'Christian victim' meme."
Stutzman's lawyer even confirmed he was "getting a lot of support from the gay community. I get a lot of people calling me and saying, 'We are gay, we believe in gay marriage, but we don't believe that Barronelle Stutzman should be forced to participate in a event that she doest want to participate in.'"
I'm sorry, but ma-fucking-larkey.
The Christian right may have set up that stupid political framing—"We'll be denied our precious right to discriminate!"—but it doesn't mean they actually get to discriminate. It also doesn't mean progressives should roll out the red carpet the first time some hateful Bible thumper turns away gay customers. Activists and lawmakers hustled their butts for more than a decade to include sexual orientation in our state's antidiscrimination statute. We went to the mat to pass gay marriage. What's the point of those victories if we're willing to give up what we've just won? Who are those laws for if we turn our backs on the people being refused service? We didn't pass those laws as feel-good keepsakes for gay-ol' Seattle, where we don't need 'em. Those laws are essential for the gays toughing it out in the hateful hinterlands. Failing to sue would set a precedent that the antidiscrimination law—which Senator Cal Anderson fought his entire career to pass, it bears mentioning—isn't worth shit because the gays are too fucking cowardly to enforce it.
Still, some are mewling that lawsuits aren't the way to win the war of public opinion, that we should be fighting bigger battles. One of my friends said we should consider public accommodations to be necessities, like hospital visitation or lunch, but not flowers.
But this isn't about flowers.
It's about the Christian right seeing how far they can push this envelope. The line between trivial product and necessary service is an impossibly broad gray area. But if you believe same-sex marriage is a right, then consider the products and services that society defines as essential to that wedding. It's not a seat on the bus or a seat at the lunch counter—but it's just as important. It is a reception hall, a dress, a tux, a bouquet. We as a society wouldn't stand idly by if a stockbroker refused to take an investor simply because she's a woman or if a caterer refused to serve food for a community group because it comprises African Americans.
The liberal apologists say the Christian right is going to rally around this case just as they have before—such as the New Mexico photographer sued for refusing to work at a gay wedding or the baker who could have been sued for refusing a cake—but, excuse me, all that rallying around their martyrs doesn't seem to be hurting gay marriage. Four states voted by popular election for the first time ever in favor of gay marriage last fall. If anything, the more those people complain, the stronger the gay marriage movement seems to become.
When gay marriage was on the ballot, a lot of people said human rights shouldn't be put up to a vote, because the rights of a gay couple shouldn't be subject to the whims of public opinion. If you agree with that, you also agree that anti-gay-discrimination laws shouldn't be put up to a test of public opinion, shouldn't be subject to the results of a focus group or a poll or a marketing agency, but a test of constitutional fairness and of state law. When this story first broke last month, I wrote that the Washington State Human Rights Commission, which is traditionally the body to bring antidiscrimination cases, should intervene. But the commission has been silent. So I'm glad that the straight people who run the ACLU and our straight attorney general (along with the gay couple) have the guts to take this to a judge.
Even if it's unpopular, it's the right thing to do.
Attorney General Ferguson put it simply when he was talking about his decision to file the case: "Right now, she's getting away with it, and that sends the wrong message to all the businesses around the state."
So bring on the lawsuits.