The Center for Gender and Sexuality Law and the Public Rights/Private Conscience Project are concerned about the Supreme Court’s decision to grant a petition vacating the judgment and remanding the case of Arlene’s Flowers, Ltd. v. Washington for further consideration in light of the Supreme Court’s recent ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. In February 2017, the Supreme Court of the State of Washington had ruled against Arlene’s Flowers. In the case, Arlene’s Flowers, Ltd. v. Washington, a florist company operating in Washington State, asserted that due to their religious beliefs and right to free expression that they were not compelled to create floral arrangements for a wedding for a same-sex couple. In a notable ruling, the court held that:
“[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” Br. of Resp’ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.”
Following that Decision, Elizabeth Reiner Platt, Director of the Public Rights/Private Conscience Project, wrote on the outcome of the case for Religion Dispatches, in Washington Supreme Court: LGBT Discrimination No More About Flowers Than Civil Rights Were About Sandwiches noting parallels between the case and its ruling and foundational civil rights cases of the 1960s, cases such as Elane’s Photography and Masterpiece Cakeshop, and highlighting the arguments of the case in relation to the rhetoric of the Free Exercise Clause and the Establishment Clause.
After the release of the Supreme Court’s ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission on June 4th, 2018, Elizabeth Reiner Platt, Director of the Public Rights/Private Conscience Project at Columbia Law School, wrote on the implications that the language, rhetoric, and precedents engaged in the ruling may have on other cases. The focus of her piece, Will SCOTUS’s New Zeal for “Neutrality” Affect its Decision on the “Muslim Ban”? is an analysis on how the Supreme Court Justices’ ruling and opinions in Masterpiece Cakeshop may relate to the Justices’ and the Court’s position on Trump v. Hawaii, which notably attends to the third iteration of President Donald Trump’s ban on Travel and Immigration.
Following Monday’s announcement regarding Arlene’s Flowers Ltd. v. Washington, Professor Katherine Franke, Sulzbacher Professor of Law, Gender and Sexuality, and Director of the Center for Gender & Sexuality Law at Columbia Law School wrote the following short analysis on social media contextualizing the case and concerns about the Supreme Court’s rhetoric within the framework of Racial Justice. An excerpt from Professor Franke’s analysis is italicized below.
Here’s what the Supreme Court’s action… on Arlene’s Flowers means and why you should pay attention:
The Court sent the case back to the lower court with instructions to reconsider its earlier decision in light of the SCOTUS ruling in Masterpiece Cakeshop. Remember that the cake baker in that case won because the Court regarded comments made by one member of the Colorado Human Rights Commission as evidencing bias against the baker’s faith: adjudication of the conflict between the rights of LGBTQ people and people of faith who seek an exemption from compliance with civil rights laws must be “untainted by any bias against a religious belief.”
In my view, the comments that supposedly evidenced bias against religious belief did not do so. Here’s what the Commissioner said:
‘Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.’
It is, in fact, true that religion has been used to justify great good and great evil, and has been invoked to legitimize both slavery and the Holocaust. This is just a fact. To state this is not to disparage religion generally, but the uses to which religion has been put. Pretty much any person of faith would agree with this.
So here’s how all this is relevant to Arlene’s Flowers. The Alliance Defending Freedom, the right-wing hate group that is representing both Jack Phillips in Masterpiece Cakeshop and Barronelle Stuzman in Arlene’s Flowers, takes the position that they can show bias against religion in the Arlene’s Flowers case, just as they (arguably) did in Masterpiece Cakeshop. But in making this argument they propose a radical reinterpretation of religious liberty and civil rights law: it is their position that *any* refusal to accommodate religion amounts to bias against religious belief. So say the lower court finds that enforcing the equality rights of LGBTQ people (or people of color, or women, or disabled people, or …) must take precedence over Barronelle’s religion-based objection to providing flowers for a same-sex wedding – ADF would claim that this amounts to bias against religion. Why? Because religion-based values must always supercede other values, such as equality, or due process, or free speech.
Now it is true that sometimes a failure to accommodate a person’s religious exercise amounts to a form of discrimination: say Abercrombie & Fitch’s refusing to hire a woman who wore a hijab/headscarf, or the NYPD refusing to permit a Sikh officer’s need to wear a turban as a faith-based practice. But to say that the failure to accommodate religious exercise amounts to discrimination in some contexts does not meant that it must be understood as discrimination in all contexts where an accommodation is requested. This is to render religious liberty an absolute right, which it is not. Fundamental, sure. Absolute, no.
What is worse, in an era when it is almost impossible to prove racial bias (see the Supreme Court’s decision today dismissing clear evidence of racial gerrymandering in Texas) the ADF is arguing that it be almost impossible to disprove religious bias. The Court requires a very strong showing of intent to discriminate in race cases, but if the ADF gets its way, one would not have to make any showing of intent to discriminate to prevail in a religious discrimination case – intent would be irrelevant.
As these, and other cases progress this term, we will be updating our blog and social media regularly with insights and work from our team members. We encourage you to follow the Public Rights/Private Conscience Project on Facebook and Twitter and to subscribe to the PRPCP’s mailing list for bi-weekly updates regarding our research, our work, and our programs.
Sulzbacher Professor of Law, Gender and Sexuality Studies
Director, Center for Gender & Sexuality Law
Elizabeth Reiner Platt
Director, Public Rights/Private Conscience Project
Columbia Law School
Director, Racial Justice Program
The Public Rights/Private Conscience Project
Columbia Law School