Bench Memos

Law & the Courts

Fulton Decision Protects Religious Liberty, but What’s It Mean for Creative Professionals?

Floral artist Barronelle Stutzman of Arlene’s Flowers in Richland, Wash. (Alliance Defending Freeedom)

On June 17, the U.S. Supreme Court issued its unanimous opinion in Fulton v. City of Philadelphia, holding that the city unconstitutionally discriminated by revoking the license of a Catholic foster-care agency that wanted to operate according to its religious beliefs. The decision is a significant victory for religious freedom — and for children. After all, including the Catholic agency as a provider will increase the number of available foster families to provide homes for children. That’s what it means to keep kids first.

Now the high Court should address a different question that has been pending for years: the ability of religious organizations and creative professionals to live consistently with their faith in the public square. And the vehicle to do it is Arlene’s Flowers, a case that has been waiting on the Supreme Court’s docket for the Fulton decision to arrive.

Barronelle Stutzman is a Christian artist who imagines, designs, and creates floral art. She and her business, Arlene’s Flowers, serve and hire everyone and will sell prearranged flowers for any event. But because of Barronelle’s sincere religious beliefs, she politely referred a long-term client to three other florists to create the floral art for his same-sex wedding.

That polite referral triggered the state of Washington’s unprecedented attack on Barronelle, in both her personal and professional capacities. The Washington attorney general and state supreme court labeled her a discriminator and threatened to bankrupt her and her business. I and my colleagues at Alliance Defending Freedom have asked the U.S. Supreme Court to review the case.

Barronelle’s request explains that Washington violated her First Amendment rights in three ways. First, the state required her to take part in sacred ceremonies that contravene her faith. Second, the state forced her to create custom floral art expressing messages that her faith does not allow her to communicate. And third, the state acted with impermissible hostility by targeting Barronelle for her religious beliefs.

In the 21 months since Barronelle asked the Supreme Court to review her case, the need for that review has increased. Lower courts have reached differing conclusions regarding the legal issues Barronelle is asking the high Court to resolve. And government officials have increased their efforts to use public-accommodation laws to compel individuals and organizations to choose between their faith and participating in the public square.

Some courts have gotten it right. Consider Telescope Media Group, a company that created films telling stories honoring opposite-sex marriages. Minnesota tried to use its public-accommodation law to compel Telescope to celebrate same-sex marriages, too, even though doing so would violate the owners’ faith. The U.S. Court of Appeals for the Eighth Circuit held that Minnesota could not compel the company’s speech without violating the U.S. Constitution.

Similarly, the Arizona supreme court, relying heavily on federal law, held that the city of Phoenix could not compel Brush & Nib Studio to create custom wedding invitations celebrating ceremonies with which the studio’s artists disagree. Because the city’s public-accommodations ordinance declared “speech itself to be the public accommodation,” it failed under the First Amendment.

But other courts keep getting it badly wrong. For example, courts in New Mexico and Oregon have allowed government officials to use public-accommodation laws to compel companies and their religious owners to create messages and participate in ceremonies that violate their faith. And only a few months ago, the Washington supreme court used its decision in Barronelle’s case to limit the ability of Seattle’s Union Gospel Mission to hire employees who share the mission’s faith.

As recently as June 16, a Colorado trial court also relied on the Washington decision to conclude that Colorado law compels cake artist Jack Phillips to create a custom cake celebrating a gender transition. The request for that cake came (not coincidentally) on the exact day the U.S. Supreme Court agreed to hear Jack’s first case, resulting in the high court’s Masterpiece Cakeshop ruling supporting his religious freedom.

In Fulton, the U.S. Supreme Court held that foster-care agencies are not public accommodations. That’s right. But it means that, unless the high Court intervenes in Barronelle’s case and holds that governments may not use public-accommodation laws to force people of faith to participate in and create expressive art for ceremonies that violate their religious beliefs, people like Barronelle and Jack will continue to be targeted, vilified, and harassed. The Supreme Court should take up the Arlene’s Flowers case immediately.

John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom (@Alliance Defends), which represents Barronelle Stutzman in Arlene’s Flowers v. State of Washington.

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