Last year, when the Supreme Court of the United States decided Masterpiece Cakeshop v. Colorado Civil Rights Commission, two things were immediately clear. First, the Court had condemned the double standards and intolerance that so often define government actions against people of faith. But second, it had punted on the core First Amendment question at issue: Can the government compel a creative professional to exercise his artistic talents to advance a message with which he disagrees?
Yesterday, Washington State’s supreme court punted the issue right back. The case is Washington v. Arlene’s Flowers, and the facts are remarkably similar to those of Masterpiece Cakeshop. In Masterpiece, a Christian baker who routinely created custom cakes for gay customers had refused to create a custom-designed cake for a gay wedding. In Arlene’s Flowers, the state courts have ruled against a Christian florist who routinely served gay customers (including the gay couple at issue in the case), but who refused to create custom-designed floral arrangements for a gay wedding.
In both cases, the refusal to use their artistic talents focused not on the identity of the client — they serve all customers — but on the nature of the message. They’d refuse to serve a straight customer who asked them to create art to celebrate any message that contradicted the fundamental tenets of their faith. It’s comparable to forcing a baker to bake a Confederate flag cake on the grounds that most customers seeking such a cake also happen to be white. It’s comparable to forcing a designer to “dress” Ivanka or Melania Trump on the grounds that they’re women — after all, women disproportionately wear dresses.
Shortly after the Masterpiece Cakeshop decision, SCOTUS vacated the Washington supreme court’s original ruling against Arlene’s Flowers and remanded the case back to the court for further review. In Masterpiece Cakeshop, the owner — Jack Phillips — prevailed because he was able to introduce evidence of anti-religious animus and double standards on the part of both the Colorado Civil Rights Commission and the Colorado state courts. Civil-rights commissioners had explicitly insulted Phillips’s faith, and Colorado courts had granted other bakers the right to refuse to bake cakes with messages they found distasteful. The double standards were plain.
Similarly, in Arlene’s Flowers, the owner — Barronelle Stutzman — was able to introduce considerable evidence of selective enforcement. As her attorney, Kristen Waggoner (my friend and former colleague) explained in National Review last year, the Washington attorney general was so zealous to prosecute Stutzman that he filed his case against her “without receiving a legal complaint” from the gay couple, and “he bypassed the state agency charged with enforcing the state’s nondiscrimination law.” Moreover, he sued her in her personal capacity “to frighten her and anyone who dared to live out those same beliefs about marriage.” Moreover, he also demonstrated his own double standards when he refused to take action against a coffee-shop owner who threw Christian pro-life activists out of his Seattle store.
Nonetheless, the Washington court distinguished Arlene’s Flowers from Masterpiece Cakeshop — by arguing that Justice Kennedy’s opinion was focused on anti-religious animus by adjudicators, not by law enforcement. Since there was no evidence of anti-religious animus on the part of any of the courts that ruled against Stutzman, Masterpiece Cakeshop does not apply.
Stutzman’s last recourse is to the Supreme Court, and if she loses, she faces not only a fundamental erosion of her First Amendment freedoms, but total financial ruin. The Washington attorney general’s vindictiveness has rendered her personally liable for a staggering amount of potential damages, fees, and costs.
SCOTUS must hear this case, and when it does, it should avoid limiting itself to the narrowest possible question — does evidence of anti-religious animus by law enforcement, as opposed to adjudicators, invalidate an enforcement action? Instead, it should reach the core question and definitively reaffirm generations of precedent prohibiting the government from compelling Americans to engage in speech supporting a cause they oppose.
In 1943, the Supreme Court wrote the words below — words that represent a bulwark against the power of the state and a fortress around individual conscience. They applied when the government tried to force Jehovah’s Witnesses to pledge allegiance to the flag, and they apply when the government tries to force its religious citizens to use their art to celebrate events they find immoral:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
A floral arrangement isn’t worth forfeiting this fundamental protection. Let the customer go elsewhere. Leave the florist alone.
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