Bench Memos

Law & the Courts

Floral Artist Faced Same Intolerance as Jack Phillips

Masterpiece Cakeshop owner Jack Phillips (Rick Wilking/Reuters)

“I think the worst part is when they say I won’t serve gay people. That’s just not true. I’ve never discriminated against anyone in my life.”

That’s my client and friend, Barronelle Stutzman, and if you spend five minutes in her presence, you will wonder why the State of Washington has sued this sweet 73-year-old grandmother. But it has. And if Barronelle loses her case, she stands to lose her floral shop, her home, and her retirement savings — everything she and her husband have built over the last 40 years.

No one should be bullied or banished from the marketplace for living out her or his beliefs about God and marriage. But it takes a special kind of focused hostility to target this woman, to relentlessly pursue her business and personal assets, all for the purpose of making an example of her. Yet that’s exactly what the State of Washington is doing.

Earlier this month, the U.S. Supreme Court recognized that religious hostility doesn’t have a place in our society. In a strong 7-2 ruling, the Court said that the government was wrong to punish Jack Phillips, another one of my clients, for living out his beliefs about marriage.

Some on the left argued that the decision in Masterpiece Cakeshop v. Colorado Rights Commission merely protected Jack, and that it was only a narrow win. But now, the Supreme Court has indicated that the Masterpiece Cakeshop ruling has something to say about Barronelle’s case. It did so by vacating the Washington Supreme Court’s decision against her so that her case can continue.

In Masterpiece Cakeshop, the Supreme Court held that Jack was entitled to a “neutral and respectful consideration” of his views. Yet the Colorado Civil Rights Commission treated him unequally and with scorn. Specifically, the commission protected the First Amendment rights of cake designers who support same-sex marriage while severely punishing Jack for declining to celebrate same-sex marriage. As the Supreme Court found, the commission’s actions demonstrated “impermissible hostility toward the sincere religious beliefs that motivated his objection.”

In Washington State, the facts of Barronelle’s case are also egregious. It was a Friday — March 1, 2013 — and Rob Ingersoll, one of Barronelle’s favorite customers, walked into her shop. She knew Rob was in a same-sex relationship and had happily served him as a customer for more than nine years, creating custom floral arrangements for all sorts of events he requested. Rob said that he and his long-time partner, Curt, were getting married, and Rob wanted Barronelle to design for their wedding. For customers like Rob, Barronelle would design many different custom arrangements and attend the ceremony to provide assistance.

Barronelle felt a tension when Rob asked her to do his wedding. She loved Rob and didn’t want to hurt his feelings, but she knew she couldn’t participate in his ceremony. As a devout Christian, her relationship with Jesus Christ is her highest priority and the source of her creativity. Her faith also teaches her that marriage is a sacred union between a man and woman.

She talked and prayed with her husband. She was willing to sell Rob any prearranged or loose flowers in her shop. Still, as much as she loved Rob, she couldn’t create something to celebrate an event that violated her faith. Instead, Barronelle offered the names of three other florists, listened to Rob’s engagement story, talked about some of his wedding plans, and hugged him goodbye. They parted as friends who respectfully disagreed over a very important issue.

That was until Washington Attorney General Bob Ferguson got involved. He was so eager to file a lawsuit against Barronelle that he did so without receiving a legal complaint from Rob or Curt, and he bypassed the state agency charged with enforcing the state’s nondiscrimination law. He then hand-picked Barronelle to make an example of her, even suing her in her personal capacity to frighten her and anyone who dared to live out those same beliefs about marriage.

Rob and Curt had their wedding. They displayed their flowers. They ate their cake. Initially, they expressed no interest in suing Barronelle, but a phone call from Ferguson seems to have persuaded them to join forces with the American Civil Liberties Union and the State of Washington to force her to choose between her faith and her livelihood. It’s a choice no one should have to make.

Barronelle chose to follow her faith. But it could cost her everything she owns.

You don’t have to agree with Barronelle’s convictions about marriage to understand why Attorney General Ferguson’s tactics are wrong and Barronelle’s artistic freedom should be protected. As Justice Anthony Kennedy wrote in Masterpiece Cakeshop, government officials must “proceed in a manner neutral toward and tolerant of” religious beliefs on same-sex marriage. And as Justice Clarence Thomas wrote in his concurrence, if those beliefs are the minority view after Obergefell, “that is all the more reason to insist” that they be protected.

Like Jack Phillips, Barronelle serves all people. Like Jack, Barronelle can’t celebrate all events or express all messages. Like Jack, Barronelle has been the target of government hostility.

And like Jack — and all Americans — Barronelle deserves the protection of the First Amendment.

Most Popular

Politics & Policy

Demagoguery Is Not Leadership

The government of Prime Minister Jacinda Ardern in New Zealand has, with the support of the opposition, decided to enact fundamental changes in the nation’s firearms laws less than a week after the massacre at two Christchurch mosques. This is the opposite of leadership. It is also an example of why ... Read More
White House

The Media’s Disgrace

There will soon enough be an effort to memory-hole it, but the media coverage of the Russia investigation was abysmal and self-discrediting — obsessive and hysterical, often suggesting that the smoking gun was right around the corner, sometimes supporting its hoped-for result with erroneous, too-good-to-check ... Read More
Politics & Policy

Bonfire of the Media Vanities

If the mainstream media had any capacity whatsoever for shame, embarrassment, or even honor, it would be raining anchors outside MSNBC headquarters. Hara-kiri knives would be selling out at Saks Fifth Avenue. Children would have to be advised not to flip on any news broadcast except Fox News Channel lest they ... Read More
Politics & Policy

What Was Trump So Annoyed About?

One of the stranger arguments that I heard throughout the Mueller saga -- and am hearing today, now that it's turned out to be a dud -- is that Donald Trump's irritation with the process was unreasonable and counterproductive. This tweet, from CNN's Chris Cilizza, is a nice illustration of the genre: Donald ... Read More
White House

Our Long National Hysteria 

Our long national hysteria may not be over, but at least it should — by rights — be diminished. Robert Mueller delivered his long-awaited report on Friday, and Attorney General William Barr just released his summary of the findings. They completely vindicate President Trump regarding the allegation that ... Read More