Arlene’s Flowers: A Case of Religion as Grounds for Discrimination

On March 1, 2013, Robert Ingersoll drove to Arlene’s Flowers, a florist in Richland, Washington, to ask the owner, Barronelle Stutzman, to provide flowers for his wedding to his partner, Curt Freed. Stutzman had long known of the couple’s romantic relationship, had often sold them flowers, and Ingersoll was excited to ask Stutzman to provide the flowers for their wedding. However, Ingersoll was stunned and hurt when Stutzman refused to sell him flowers for his wedding to Freed—a service she routinely provided to opposite-sex couples—because of her “relationship with Jesus Christ” and her opposition to same-sex marriage.

When my office learned what happened to Ingersoll and Freed, we conducted an investigation and determined that Stutzman’s discriminatory act violated Washington’s Law Against Discrimination (WLAD) and Consumer Protection Act (CPA). The WLAD prohibits discrimination in public accommodations on the basis of, among other characteristics, sexual orientation. Laws like these have long been instrumental in protecting and advancing the cause of civil rights, including, for example, the push to integrate lunch counters and public lodging in the American South during the 1960s. See, e.g., Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 243 (1964). Under Washington law, a violation of the WLAD’s prohibition of public accommodations discrimination is a per se violation of our CPA, which prohibits unfair and deceptive practices in trade and commerce.

After concluding that Stutzman’s discriminatory refusal to provide flowers for Ingersoll and Freed’s wedding violated the law, we reached out to Stutzman and offered to resolve the matter without litigation if she would commit to no further discriminatory acts. When Stutzman refused, we filed suit against her and Arlene’s Flowers for violating the WLAD and CPA. Our lawsuit was simple: Stutzman and her business committed an unfair practice when she discriminated against Ingersoll on the basis of his sexual orientation by refusing to sell flowers to him for his same-sex wedding, flowers she routinely provided to opposite-sex couples. The state sought as relief an injunction against future discrimination, $1 in attorney’s fees, and $2,000 for the CPA violation.

The trial court and the Washington Supreme Court agreed that Stutzman and her business illegally discriminated against Ingersoll, rejecting a variety of arguments raised by Stutzman. State v. Arlene’s Flowers, Inc., 441 P.3d 1203 (2019); cert. denied, 141 S. Ct. 2884 (2021). For example, Stutzman claimed that she did not discriminate against Ingersoll on the basis of his sexual orientation but rather on the basis of her objection to same-sex marriage. However, courts have long rejected arguments like this that seek to distinguish between a person’s status as a member of a protected class and conduct closely associated with that class. Id. at 1221, citing inter alia, Christian Legal Society Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 689 (2010) (organization’s exclusion of members on the basis of “unrepentant homosexual conduct” is sexual orientation discrimination).

Nor could Stutzman’s previous sales of flowers to Ingersoll and Freed for other, non-wedding related, occasions absolve her of responsibility for her discriminatory refusal to sell them flowers for their same-sex wedding. As the New Mexico Supreme Court held in a similar case involving a wedding photographer, “if a restaurant offers a full menu to male customers, it may not refuse to serve entrees to women even if it will serve them appetizers.” Elane Photography, LLC v. Willock, 309 P.3d 53, 62 (2013).

Stutzman relied heavily on constitutional defenses to justify her actions. She argued that complying with Washington’s public accommodations law by providing flowers for same-sex weddings would be compelled speech in violation of the First Amendment. Courts have long acknowledged that inherently expressive conduct is protected speech. However, Stutzman’s sale of floral arrangements for weddings does not send any particular message about the wedding. Stutzman admitted as much in her deposition when she agreed that “providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism.” Flowers, 441 P.3d at 1226.

Stutzman’s reliance on the Free Exercise Clause was similarly unavailing. She was wrong in asserting that the WLAD is not neutral because it exempts religious organizations but not individuals like her. As the court noted, “blanket exemptions for religious organizations do not evidence an intent to target religion. Instead, they indicate the opposite.” Id. at 1229. The WLAD, like other public accommodations laws, is also generally applicable despite limited carve-outs such as for small businesses and purely private organizations. In light of the WLAD’s neutral, generally applicable nature, the law “is rationally related to the government’s legitimate interest in ensuring equal access to public accommodations.” Id. at 1231.

Stutzman discriminated against her longtime customer Ingersoll on the basis of his sexual orientation. She justified her discrimination on the basis of her genuinely held religious beliefs. However, this is the quintessential slippery slope, as one of her experts starkly illustrated in his deposition. He stated that individuals should be allowed to refuse to sell flowers to an interracial couple for their wedding if interracial marriage was against the religious beliefs of the business owners. Thankfully, because of our public accommodations laws, we do not live in that world. As the case against Stutzman demonstrates, our ability to continue to ensure the civil rights of all persons depends on the continued vigorous enforcement of these laws.