ARLENE’S: Business refused to cater to a same-sex couple’s wedding ceremony. (AP / Tri-City Herald, Bob Brawdy)
When the American Civil Liberties Union contacted Michael Scott in 2013 about bringing a pro bono case for a newly engaged gay couple, he knew national attention would follow.
His 39-lawyer firm, Hillis Clark Martin & Peterson in Seattle, hadn’t even filed the complaint when the Washington state attorney general’s office brought a highly publicized case of its own. And the defendant, a 70-year-old local florist, had retained Alliance Defending Free­dom, an amply funded conservative Christian organization focused on cases involving religious freedom.
During the most recent hearing, in December, more than 100 supporters of the florist showed up at the courthouse in Kennewick, Washington. “It was still a very emotionally charged atmosphere for everybody, and for us,” Scott said. Last month, Benton County Superior Court Judge Alexander Ekstrom found that the florist’s constitutionally protected religious beliefs about marriage didn’t allow her to discriminate against a same-sex couple by refusing to provide flower arrangements for their wedding.
The case is the latest clash between state laws that protect gays and lesbians from discrimination and religious beliefs protected under the First Amendment. The battle has intensified as states have legalized same-sex marriage. Some states are considering legislation that would allow companies to refuse service to gay couples, while suits or other legal actions have been brought against small businesses, many of which cater to weddings. In 2013, the New Mexico Supreme Court found that a wedding photographer violated state human rights law when she refused to shoot a commitment ceremony for two women. In 2014, the Colorado Civil Rights Commission found that a bakery unlawfully refused to sell a wedding cake to two men.
“We’ve heard, as people have debated same-sex marriage, that it should be a live-and-let-live situation,” said the florist’s attorney, Kristen Waggoner, senior counsel in the Scottsdale, Ariz., headquarters of Alliance Defending Freedom. “What we’re seeing, as these laws are being passed, is that it’s about more than that — it’s about marginalizing, shunning and destroying people who have a different belief about marriage and want to live consistent with that belief.”
Tobias Barrington Wolff, a professor at the University of Pennsylvania Law School, who has been involved in civil rights cases on behalf of LGBT people, said the cases aren’t really about same-sex marriage. “They result from the enforcement of anti-discrimination laws that protect lesbian, gay, bisexual and transgender people from discrimination in the commercial marketplace,” he said.
In November 2012, voters in Washington approved a ballot initiative allowing same-sex weddings. In March of the following year, Robert Ingersoll went to Arlene’s Flowers and Gifts in Richland, Wash., to buy flowers for his wedding to partner Curt Freed (right, with Ingersoll). A Southern Baptist, owner Barronelle Stutzman told Ingersoll that she couldn’t do the arrangements because it would violate her religious belief that marriage is between a man and a woman.
“I tried to respond in the most sensitive way I knew how,” Stutzman (left) said in a 2014 declaration filed in court. “I gently took his hand, looked him in the eye and told him that I could not do his wedding because of my relationship with Jesus Christ.”
The rejection hit Ingersoll hard. “The refusal sent Curt and me reeling,” Ingersoll said in a 2013 declaration. “We were shocked and saddened by the refusal and took some time to decide how to respond.”
Freed posted the story on his Facebook page. The news media picked it up and Washington Attorney General Robert Ferguson sued Arlene’s Flowers on April 9, 2013. Ingersoll and Freed filed their case nine days later. The cases, now combined, accused Arlene’s Flowers of breaking the Washington Law Against Discrimination and Con­sumer Protection Act.
Hillis Clark has a reputation for supporting LGBT rights, said Sarah Dunne, legal director of the ACLU of Washington State. She worked at the firm from 2002 to 2006. In a previous case with the ACLU, the firm represented a student in Hoquiam, Washington, who sued his school district after classmates bullied him, believing him to be gay.
In the florist case, Scott and four other lawyers at the firm held weekly conference calls with the ACLU and the attorney general’s office. His firm took the lead in oral arguments and drafting and editing court documents, Dunne said.
And of those, there were many. Alliance Defending Freedom, which teamed with local attorney Alicia Berry, of counsel to Kennewick’s Lieb­ler, Connor, Berry & St. Hilaire, immediately attacked the claims that Stutzman should be held personally liable. Ekstrom struck down that argument in January.
Most recently, Alliance Defending Freedom unsuccessfully challenged standing in the case. It argued that since Ingersoll only wanted some “sticks and twigs” instead of a floral arrangement, Stutzman would have provided those materials had she known.
Stutzman’s primary argument was that her beliefs regarding marriage were protected under the First Amendment’s right to freely exercise her religion, and her floral arrangements fell under the right to free speech.
Waggoner disputed that her client had discriminated against homosexuals, noting that she still has gay and lesbian employees and patrons. And as to Ingersoll: “She had served him for nearly a decade, so to suggest that she denied him because he was homosexual is not borne out by the record. She considered him a friend,” Waggoner said.
Ekstrom found that Stutzman’s single act of refusing service to Ingersoll still amounted to discrimination. “The United States Supreme Court has long held that discrimination based on conduct associated with a protected characteristic constitutes discrimination on the basis of that characteristic,” Ekstrom wrote. “Defendants’ refusal to ‘do the flowers’ for Ingersoll and Freed’s wedding based on her religious opposition to same sex marriage is, as a matter of law, a refusal based on Ingersoll and Freed’s sexual orientation.”
Given the ruling, there won’t be a trial in the case, for which Hillis Clark has devoted nearly 1,500 hours. But it’s not over. Both sides are crafting an injunction order, and Alliance Defending Freedom has vowed to appeal the decision. And when it does, Scott said, “We will be handling it.”