DIVE: Bigoted granny's SCOTUS sob story
We have to talk about wedding vendors again.
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If this grandma loses her floral shop, it’s only because she partnered with a hate group that convinced her to bet the house on discrimination.
We need to talk about wedding cakes again, but if it’s any consolation we’re actually talking about wedding flowers this time. The wedding vendor cases haven’t gone away, and they’re likely returning to the Supreme Court soon. This time, the Alliance Defending Freedom (ADF) is bringing forth a florist who refuses to arrange flowers for same-sex couples’ weddings in defiance of Washington state law, and they’re hoping to convince SCOTUS to undermine LGBTQ protections across the country.
As I mentioned in my previous “DIVE” bonus issues, the Supreme Court will hear cases this fall about employment discrimination, to determine whether the federal law’s employment protections on the basis of “sex” (Title VII) also apply to cases where people were fired for their sexual orientation and gender identity.
But unlike in those cases, there is no federal law extending “sex” protections to what we call public accommodations. “Public accommodations” is the legal term for public businesses and such, basically any storefront or website in which you’re a customer or a client. Federal law (Title II) defines this term very narrowly as applying only to spaces like hotels, restaurants, and theaters — and it does not prohibit any discrimination on the basis of sex. (Among other things, the Equality Act would expand this definition to protect more people in more places!)
Many states and cities, however, have taken it upon themselves to draw up their own public accommodations laws, defining the term far more broadly and enumerating protections not only on the basis of sex, but also sexual orientation and gender identity. ADF is determined to overturn, circumvent, or otherwise undermine these LGBTQ protections, and this florist’s case is very likely to be the one SCOTUS takes up next.
Meet poor Grandma Stutzman
Baronelle Stutzman, owner of Arlene’s Flowers in Richland, Washington, is one of ADF’s star clients. (No, I don’t know who Arlene is.) Way back in 2013, Robert Ingersoll, a decade-long customer, came to her asking her to arrange the flowers for his wedding to his soon-to-be husband Curt Freed. She refused because of her religious beliefs, and ADF has been bilking her for money ever since.
Throughout the history of this case, Stutzman has only ever lost. The Washington courts have looked at her actions and looked at the law and haven’t had any trouble concluding that she violated it. If she does wedding arrangements for different-sex couples but not same-sex couples, then she’s discriminating on the basis of sexual orientation. It doesn’t matter if flowers are artistic expression or what her religious beliefs are; she’s simply in violation of the law.
And every time she loses, ADF puts out another money beg. This poor granny is going to lose her house! Her business! Everything! Do you want to put her on the street just because she stood by her beliefs?!?! They bend over backwards to paint her as a vulnerable victim. Watch, for example, as she falsely claims, “I’ve never discriminated against anybody in my life.”
There are definitely people willing to give her — or let’s be honest, ADF — a lot of money. Stutzman actually launched a GoFundMe and she received over $174,000 in donations! But then GoFundMe realized she was fundraising for discrimination and cut her off. (Conservatives immediately claimed GoFundMe had a bias against religious beliefs. Nope! Just discriminatory causes.)
As I pointed out in a post last year, the reason she faces financial issues is entirely ADF’s fault. Even though she kept losing, the penalty for her loss actually decreased. Ingersoll first offered not to sue at all if she just donated $5,000 to an LGBT youth center. Stutzman refused, so he and his husband sued for all of $7.91 in damages — the cost to drive to her store. Then the state threatened to sue unless she paid the highest possible fine under the law: all of $2,000, plus $1 for costs and fees. But ADF convinced her to fight! Then she lost in court, and the judge actually lowered the fine down to just $1,000, plus $1 for costs and fees. So she could have been done with all this for $1,001 even after losing. If that put her on the street, she didn’t run a very good business to begin with.
But ADF plays to win. They don’t settle. They certainly don’t agree to comply with an LGBTQ nondiscrimination law. They’re out to destroy that law, so they convinced their kindly grandma to keep appealing — and they keep fundraising off the case. Importantly, Stutzman herself agreed to keep fighting, insisting in plenty of public appearances as the star spokesperson for “religious freedom” that she should not have to serve same-sex couples equally.
But the costs that ADF claims she could face are their costs. See, they’re representing her pro bono, but if they lose, then Stutzman’s on the hook for everybody else’s legal fees. After all these years, it really could be $1 million, as they claim! And ADF sure isn’t going to pony up that money. But those costs are entirely because ADF has kept fighting to try to get around a law protecting queer people from discrimination. And remember, this case has been going on for a long time now. And it’s not over yet.
The long road to SCOTUS — twice
Stutzman’s case is technically a combination of cases, because not only did Ingersoll and Freed sue, but Washington Attorney General Bob Ferguson also filed a consumer protection suit. Stutzman also then countersued Ferguson claiming financial hardship because of the first two suits. All of those are wrapped up into just one case.
Anyways, first a lower court ruled against her in 2015. Then the Washington Supreme Court unanimously ruled against her in 2017. Then she appealed to the U.S. Supreme Court, but SCOTUS let her case linger while it considered the Masterpiece Cakeshop case, involving Denver baker Jack Phillips, who ADF also represents. After that ruling, it sent Stutzman’s case back to the Washington Supreme Court to make sure their ruling jibed with Masterpiece Cakeshop. In June, that Court unanimously ruled against her again, and just last week she asked SCOTUS for another consideration.
Masterpiece Cakeshop dealt with an identical issue — a business owner violating state law to refuse service to a same-sex couple. Technically ADF won, but it was a narrow and exceptional victory, so we should discuss it briefly.
SCOTUS totally punted on Masterpiece Cakeshop. They didn’t rule on whether a wedding cake is speech or whether nondiscrimination protections infringe on religious beliefs. They certainly didn’t overturn Colorado’s nondiscrimination laws — which remain in full force. They simply concluded that the Colorado Civil Rights Commission (CCRC) wasn’t nice enough when its members discussed the way Phillips was trying to justify his discrimination with his religious beliefs. They basically gave him a one-time-only get-out-of-jail-free card because of the specific circumstances of how his case was handled.
So when SCOTUS sent Stutzman’s case back to the Washington Supreme Court, ADF tried to run with this argument and claim that the state had selectively prosecuted her for her religion and was thus guilty of the same impartiality as the CCRC. That Court “painstakingly reviewed the record for any sign of intolerance” against Stutzman and found the argument totally unconvincing, but now ADF hopes to convince the U.S. Supreme Court otherwise.
Stutzman’s arguments for discrimination
Let’s take a quick tour of the arguments ADF has made asking the Supreme Court to review Stutzman’s case, via the cert petition filed last week.
Doting denials
First of all, ADF is laying it on thick making Stutzman look like a sweetheart. When she refused service to Ingersoll, “she held his hands,” and this “compassionate response epitomizes how Americans with differing marriage beliefs can peacefully coexist.” Oh, and she absolutely loves Robert and is happy to continue making him flowers — excuse me, “floral art” — but she just couldn’t possibly participate in a same-sex couple’s wedding ceremony, so clearly she doesn’t discriminate!
Yeah, no, she did exactly what the law prohibits, and ADF completely ignores the significant consequences of discrimination for people on the other side of that experience.
Justice Anthony Kennedy set us up for this kind of nonsense in his 2015 marriage equality ruling in Obergefell v. Hodges, because he claimed that “reasonable and sincere people” can oppose marriage equality. Kennedy was determined not to paint opponents of marriage equality as having the least bit of prejudice — even though they clearly do — and laid the foundation for us to have to debate whether discrimination is really, you know, discriminatory. That’s why ADF makes all these claims about how we should be able to disagree without punishing the people who are, you know, violating the law at the expense of others.
Flowers are speech
ADF spills a lot of ink describing how Stutzman makes her arrangements, insisting that they are both an artistic expression and an expression of faith. Her wedding floral designs are all to honor God and the sacred union of a man and a woman.
Keep in mind that ADF also represented those calligraphers who just won this week in Arizona, and they did so by convincing the conservative justices using this “free speech” argument. ADF wants judges to become arbiters of expression, determining whether any particular “customized” product or service counts as speech. Such a determination should then, they argue, qualify their clients for exemptions from nondiscrimination laws.
You have to then ask: What about someone with religious beliefs against interracial marriage who don’t want to create custom products for such a ceremony? Do they get a free pass to discriminate too? This was a question the Washington Supreme Court even raised at oral argument, and ADF simply claimed that racial discrimination is bad but anti-gay discrimination is still a-ok! There’s that “reasonable and sincere” line again.
Unfair prosecution
To try to get in under the Masterpiece Cakeshop standard of unfair religious treatment, ADF claims that AG Ferguson unfairly targeted Stutzman while refusing to prosecute a separate case in which a gay coffee shop owner kicked a group of anti-choice protesters out of his shop. The owner was rather enraged that they had been distributing this disgustingly anti-gay flier around town:
In ADF’s mind, Stutzman had to go to court and the coffee shop owner didn’t, so that’s unfair. But the Washington State Human Rights Commission did send the owner a letter reminding him that anti-religion discrimination is illegal — just like the letter AG Ferguson had sent Stutzman about anti-gay discrimination. The difference between the cases wasn’t selective prosecution, but how the two business owners responded to their letters.
The coffee shop owner made clear that he does not and — more importantly — will not discriminate against people for being Christian. He agrees with the law and intends to follow it. In this particular case, he was asking a specific group of activists to leave not because of their identity, but because of the offensive “garbage” they had printed and distributed around town. No prosecution was necessary to ensure his compliance with the law.
Stutzman, however, said that she refused to comply with the law and would continue to refuse to provide the same wedding-related services to same-sex couples that she provides to difference-sex couples. “Had she agreed to no longer discriminate, I would not have filed a lawsuit,” Ferguson explained when ADF first made this ridiculous argument.
So no, there is no parallel to Masterpiece Cakeshop or any evidence Stutzman was unfairly targeted for her religious beliefs.
Redefining discrimination
Remember that video above in which Stutzman claims she’s never discriminated against anybody? She actually believes that. Or at least ADF expects you to believe that she does.
One of ADF’s most adamant points is that none of its clients actually discriminate. They just refuse to participate in same-sex wedding ceremonies. And how exactly does that compute as not being discrimination against gay and bi people?
It’s a question of conduct vs. identity. To get inside their heads, you have to think of a “same-sex wedding” as being something different from a “wedding.” It’s not just a same-sex couple also having a wedding like anybody else. They see it as an abomination masquerading as a wedding, but it’s not actually a “wedding,” because that requires a man and a woman.
So if you believe these business owners, their actions aren’t about the customers’ sexual orientation. They’ll still sell cupcakes to lesbians — well, maybe not — but they just don’t want to participate in a ceremony that violates their beliefs. And being the cake baker or florist means having to show up at the wedding! They might be perceived as supporting that wedding, and wouldn’t that just be horrid?
Courts, however, are not so easily convinced that you can separate conduct (a “same-sex wedding”) from identity (a same-sex orientation). The classic example, as provided by the U.S. Supreme Court, is: “A tax on wearing yarmulkes is a tax on Jews.” In other words, if your actions clearly result in a negative consequence only for people of one identity, you can’t really claim you aren’t targeting that identity.
We don’t really know how SCOTUS feels about defining “sexual orientation,” though we may get some clues from the upcoming employment cases. But if they really wanted to be dumbasses about it, they could try to claim that some straight people enter same-sex marriages and some gay people (ex-gays, even!) enter different-sex marriages, so you can’t just claim that marriage = orientation.
You know what, though? I’ve worn a yarmulke at Jewish religious ceremonies out of respect, and I’m not Jewish, so I don’t think the logic holds up.
Free exercise
Stutzman’s other claim is that the law is forcing her to participate in a religious ceremony and thus violating her religious freedom. ADF calls it “compelled participation,” and describes Stutzman as a “conscientious objector.” (I’m sorry, but objecting to a loving commitment ceremony is not the same as objecting to war.)
ADF claims this objection entitles Stutzman to a special exemption from the law. This line of reasoning, however, depends on proving that the law specifically targets her for her religious beliefs. It obviously doesn’t. People of any or no religious beliefs are all equally required under Washington law to serve same-sex couples the same. Anti-gay Christians don’t get special dispensation to discriminate — or at least, they shouldn’t.
The solution to Stutzman’s conundrum is simple. No one is forcing her to provide services for weddings! If she doesn’t want to have to serve all couples equally when it comes to weddings, she can just not work weddings. And indeed, you see this with all of ADF’s clients and other discriminatory business owners — they stop doing all weddings until their cases plays out. It’s a tacit acknowledgement that they’d otherwise continue to wrack up charges for discrimination. It also appears to disprove the point that their businesses can’t survive without that source of income.
Nondiscrimination laws are actually pretty easy to understand. You have to provide the same options and quality of service to people without singling them out for their identity. If you have one menu for straight people and one menu for queer people, you’re violating the law. It’s no different than if you have a lunch counter for one race but not another race. But no one’s forcing any business to provide any service that they don’t already provide. The law only requires that whatever you provide, they must provide it equally.
ADF wants its clients to have their cake and eat it too. They want to make money off weddings without serving all people. It’s discriminatory intent, pure and simple.
Why this all matters
You still with me? Because here’s the scary part. What could the Supreme Court, with its super-conservative majority, actually do with Stutzman’s case?
The ideal answer is nothing. They could simply acknowledge that the Washington Supreme Court has already addressed this twice and let that ruling stand. Stutzman’s case would be over, her loss would be final, and the Court wouldn’t chime in at all on public accommodations protections.
Similarly, but less realistically, the Court could take the case but then brush it off by simply ruling that they found no similar religious animus to what they’d ruled in Masterpiece Cakeshop and let the Washington Supreme Court’s ruling stand. With Justice Neil Gorsuch in Justice Kennedy’s old seat, this kind of simple win for equality seems very unlikely.
So then it’s a question of just how bad is a ruling in favor of Stutzman. I can’t really conceive of any version of this that doesn’t make things far worse for LGBTQ people for decades to come.
Maybe they buy this whole coffee shop double standard thing and punt like they did in Masterpiece Cakeshop, giving Stutzman a free pass but not touching the law. That wouldn’t be too bad, but it would also raise the question of whether there’s any kind of discrimination enforcement the Court would actually tolerate. If every single bigoted business owner can appeal up and get a free pass, the discrimination laws will have no teeth.
Maybe they decide that a state’s desire to protect against sexual orientation discrimination just isn’t as compelling an interest as, say preventing racial discrimination. They’d basically carve out sexual orientation for less protection. This would give anti-gay Christians an immediate license to discriminate and undermine every law currently protecting against such discrimination — and those that haven’t even passed yet. That would that mean for the rest of my lifetime, refusing me service because I’m gay would be totally legal everywhere in the country.
Or worse yet, maybe they buy into these free speech claims and conclude, like the Arizona Supreme Court just did, that any “customized” product is immune to nondiscrimination laws because it invokes speech. This would undermine not only LGB protections but protections for all groups, including race, because why should objections to an interracial marriage be treated any differently?
You could also then expect countless cases litigating every different kind of customized service to see if it counts as expression. Everybody from car mechanics to surgeons might start claiming that their work involves artistic expression and religious motivation, so they too should get to pick and choose who they serve.
There could also be any combination of those possibilities or other outcomes I can’t even imagine. But in short, it will likely be a disaster for civil rights, and almost every one of these outcomes will further weaken the separation of church and state. Christians will be endowed with special privileges to ignore the laws as their beliefs dictate. That’s exactly what ADF wants; they just said so at a symposium this week.
These cases aren’t going away. Conservatives made clear as soon as they lost the marriage fight that they would try to chip away at queer rights just like they’ve chipped away at abortion rights. We need to be talking about these cases and holding the line that there is no room for discrimination — religiously motivated or otherwise.
It could be months before we learn if SCOTUS plans to do anything with Stutzman’s case, and if they take it up, it would be well into 2020 before we find out the outcome. But you can bet that ADF will continue to fundraise off Stutzman’s case and parade her around as a martyr for religious freedom. And we can expect more cases like hers down the road no matter what.
Don’t let this kindly grandma fool you; the damage she and her hate group friends could do is monumental.
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(Barronelle Stutzman photo credit: Alliance Defending Freedom.)