Law

Florists Lose on Free Expression

You may see yourselves as artists, but the state of Washington does not see bouquets as a form of expression.

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Sorry, florists: You may see yourselves as artists, but the state of Washington does not see bouquets as a form of expression. What's more: Regardless of how you feel about same-sex marriages, you must provide your services to gay couples or face punishment.

A unanimous Washington State Supreme Court in February held that a florist, Baronnelle Stutzman, violated the state's public accommodation anti-discrimination laws when she declined to create floral arrangements for a same-sex couple planning a wedding.

The florist, owner of Arlene's Flowers, said she was not discriminating against gay people, which is forbidden under state law. Rather, she argued, she had religious objections to recognizing same-sex marriages. By forcing her to provide her services for one such celebration, she felt she was being compelled to use her artistry to endorse an act—a wedding-that she fundamentally disagreed with, violating her First Amendment rights.

Forcing Stutzman to produce her crafts on demand doesn't just violate her conscience. It's arguably unnecessary, as there are plenty of other florists who are willing to apply their skills on behalf of gay couples.

But Washington's highest court dismissed all of Stutzman's arguments. It was not interested in making a distinction between rejecting gay customers and rejecting gay marriage, saying that would be like differentiating between discrimination against women who are pregnant and discrimination on the basis of sex. (Neither is allowed.) When she invoked her religious freedoms, the justices noted that the Supreme Court has set a precedent "that individuals who engage in commerce necessarily accept some limitations on their conduct as a result."

As for Stutzman's free speech claim, the court took the same line seen in similar cases involving cakes and photography: It said requiring Stutzman to prepare flowers for a same-sex wedding does not amount to compelling her to endorse said marriages. Courts have likewise declined to accept the argument that creating a wedding cake is in and of itself expressive speech, though officials and courts have mostly drawn the line at forcing a baker to add actual text he or she finds offensive.

Stutzman has pledged to bring her case before the U.S. Supreme Court. For now, hers is the latest in a series of decisions in which state-level anti-discrimination laws have been used to force small businesses to provide wedding services to gay couples.

The Supreme Court has thus far declined to take up any of the appeals.

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  1. Awful damned bizarre, taking joy in using lawyers and police to force someone who doesn’t like you to get creative. A wedding is supposed to be joyful. Strange to celebrate it with lawyers and guns. Guess you must be very very Progressive to get such joy from forcing others to your will. Do you add that to the invitations? “Join us in joining hands to force our beliefs down a florist’s gullet”

    Sure glad I’m not a statist.

    1. “Sure glad I’m not a statist”

      Unfortunately almost every other person you know, work with, and encounter on the street is. Sure they may differ on who they want to force to do what but their desires are the same. Most people desire to force their neighbors to do things their way much more than they desire to be left alone.

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    2. Sadly most would agree with the court on this issue.

  2. But there was a recent win for a t-shirt business. What’s the likelihood that the Supreme Court takes it now that there are divergent rulings?

    1. Eh, the T-Shirt ruling was pretty explicitly tied to the “message, not status” part of things?.

      The problem with Arlene’s Flower (and Sweet Cakes by Melissa, and Masterpiece Cake Shop, and Elane’s Photography, and so-on) is that the refusal came before “message” ever came up, unless you accept that just being for a wedding makes it a “message”. Which most people see right through.
      ________
      ?Which is bullshit. The ruling should have been that a t-shirt printer isn’t a public accommodation. But these anti-gay bigots aren’t brave enough to actually say “yes, we’re discriminating against gay people, and that’s our right”, they keep trying to squirm about “message” and other such transparent legal arguments that don’t fool anyone.

  3. I would have thought you had to go out of your way to find a straight wedding florist, especially a religious one. I guess some people are willing to put in the work to be offended.

    1. good, fast, or straight, pick two.

    2. Meanwhile, as they force their cash on Christian florists, they aren’t spending money at the inclusive florists who need the business so they can continue to enthusiastically support LGB… events.

    3. Gays who make an issue of this are looking for trouble. Particularly the ones who can just walk out and go elsewhere.

      I have no sympathy for them when and if they do.

      1. it’s not sympathy they’re after. But you know that.

  4. I have a great idea! (in my own head)

    Why don’t these companies who don’t like to serve the LGBT communities just accept the job but just do a crappy job! Deliver a cake that tastes like crap and looks like a first grader laid the icing on with a hand full of lego toys for instance!

    The LGBT who ordered your service will complain and you could say, “that’s my best work” and move on with your real business. I’m tired of hearing these stories about people being forced to serve a crowd of squeaky-wheeled-liberal-hissy-fit-throwing jerks who try to normalize their activities and lifestyles to those of us who simply do not agree with them like they do not agree with us!!!!!!

    Who cares if a segment of business you do not wish to engage with is unhappy with your work? They don’t know enough people to hurt you.

    Not me!

    1. Because there’s a certain amount of pride in delivering quality service and that’s not an easy habit to break even for shitheads.

    2. To me, the better tactic is to quote a semi-unreasonably high price.

    3. “Why don’t these companies who don’t like to serve the LGBT communities just accept the job but just do a crappy job!”
      They believe in additional principles that preclude them from being dishonest in their service?

      1. Or how about (while flipping through a book) ”we’d love to do the flowers for your wedding but we already have 5 booked that weekend and we’re short-staffed as it is. So sorry. But here are the numbers of three florists nearby. Have a nice day !”

        1. This is exactly the excuse that should be used, and it’s incredible that simply saying ‘no’ and giving absolutely no justification what-so-ever is perfectly fine but if you quote the ‘real’ reason you’re suddenly in a whole lot of trouble and you end up being conscripted by the state.

          Truly, we live in a bizarre world where what form your answer takes decides the outcome rather than the final action.

  5. Freedom of Association is a strong argument to use in cases like this AND the fact that the law singles out business associations over others to determine was is a valid law or not. Itself an act of discrimination under the law.

    It comes at a cost though. Libertarians will have to question whether they have freedom of association with coercive monopolies like the state – regardless of whether they are limited or not.

    1. can you have freedom of association with coercive monopolies like the state

      That’s a trick question.

      1. or did i misread it? “can you have FoA under the Coercive State tent” or “can you enter into a free association with a coercive entity”, which was the intended question?

      2. In my opinion ,no

        Which is why I mention it. Understanding that states were cercive mono;olies haled me make up mind on the so-called “anarchist” position versus limited government (limited state).

        The so-called anarchist position is only a position that opposes coercive monopoly governments – and not government or the idea of governing.

        I merely had to train my brain to call coercive monopoly ones as states and not as governments.

    2. But these just aren’t freedom of association cases. None of the businesses in these cases have expressed a desire to turn away gay customers, they want to be able to refuse to provide services gay wedding celebrations (regardless of whether or not the person paying for the cake/flowers/photography is gay or straight).

    3. “Freedom of Association is a strong argument to use in cases […]”
      Two big problems with that.

      #1) That’s been tried since 1965 to no avail.
      #2) If it did work, it would undermine all non-discrimination law.

      And since the same people that want to discriminate against me because their holy book calls for my death are scared shitless at the idea that I could discriminate against them because their holy book calls for my death, they restrict themselves to arguments that don’t cut too broadly.

  6. The thing I find strangest about these stories is the way everyone involved has apparently forgotten that the Thirteenth Amendment exists.

    1. Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
      Section 2. Congress shall have power to enforce this article by appropriate legislation

      So the florist is being punished for the crime liberal heresy, convicted by her own words.What’s the problem?

  7. The part of this that really makes people’s heads explode is the notion that libertarians can support the rights of LGBTQAI people to celebrate their love and form unions in any way they’d like and simultaneously think that it is wrong for the state to force people to provide services for their celebrations.

    Funny, the same folk have a seriously difficult time even comprehending the notion that one might draw an analogy with the klan holding a rally at the Ebenezer Baptist church of the Martin Luther KIng Jr. National Historic site and using the state to force Deacon Burton’s to cater the event.

    Just because one group’s opinions jibe with yours and the other’s does not is no reason to throw principle out the window.

    1. For the very few uninitiated who land here: the above example is easy for the libertarian to reconcile. The gay couple should be free to hold their wedding – and the Westboro Baptist Church should be free to tell them they are not interested in hosting the event. Similarly, the Klan should be free to hold their rally, and Deacon Burton’s should be free to tell them where to stick it when they ask them to cater the event.

      And then we can all go over to Deacon Burton’s for fried chicken and collard greens. Because it is awesome.

      1. Blech, collard greens.

  8. I have to wonder if the state of Washington is one of those that have the onerous licensing requirements for engaging in a multitude of professions, on the grounds that not just anybody is qualified to offer services without a great deal of training and oversight, and if florists are one of the licensed professions. Seems like that would tend to support the florists argument that flower-arranging is an art, a skill that requires thousands of dollars and hundreds of hours worth of training to acquire. Not that the state wouldn’t cheerfully offer contrary arguments in the two different cases as to whether or not flower arrangement is a particularly skilled trade.

    1. Holy crap, florists dodged a bullet – but not apparently kickboxing announcers, hulk haulers, fishing guides and taxidermists.

  9. I’ve still yet to hear a good argument about why it’s ok to have your no-gays service but not ok to refuse black or interracial weddings. Is it because unlike a few decades ago, only a much smaller percentage believes miscegenation is an affront to their religion? Have we dictated what is and is not a valid religious belief in order to claim refusing gays is ok but refusing blacks is not? Or is the objection based on race should be protected but orientation shouldn’t? That makes the argument something entirely different than free expression really.

    1. fafalone|5.14.17 @ 10:13PM|#
      “I’ve still yet to hear a good argument about why it’s ok to have your no-gays service but not ok to refuse black or interracial weddings.”

      Those who have imaginary friends such as a sky-daddy will argue that their sky-daddy favors one over the other. Those who prefer logic will agree there is no difference and no one should be coerced to provide services if they choose not to, regardless why they choose such.

  10. The Gay Florist Mafia is behind this.

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  13. How is gay marriage analogous to a pregnant woman in this situation?

    If a straight guy wanted buy a wedding cake for his gay pal’s wedding, these business owners would also decline to provide service. If a gay couple wanted to buy a power bar to fuel themselves before gay sex, they would serve them. What they’re actually objecting to seems pretty clear to me.

    How hard would it be for liberals to say “yes” to a lumber store refusing to provide materials for Klan cross burning? The entire SJW movement built on PREVENTING speech that could theoretically offend someone.

  14. Much as I hate them and groups like them, when I read stuff like this I kinda wish that Westboro Baptist Church would make an effort to intentionally locate gay florists and force them to provide arrangements for the next “God hates fags” meeting. And force the gay videographer to film the meeting. Also get the KKK to force Jewish and/or Black caterers to provide the service for the next Klan rally. And force the Muslim bakeries in Dearborn, MI (many of which are on video declining to bake cakes for gay weddings, but were somehow not sued for their bigotry) to bake cakes for the next million Bar Mitzvahs.

    1. “many of which are on video declining to bake cakes for gay weddings, but were somehow not sued for their bigotry”
      Michigan non-discrimination law doesn’t include sexual orientation.

  15. As soon as a dollar changes hands, the government’s power is plenary. (Not sure why most people are OK with that.)

    Also, they aren’t really “forcing her to provide her services”, they are threatening to punish her for refusing. What is the punishment? Does she get fined, or do they shut her business down, or does she go to jail? I have no idea.

    1. Actually, they are forcing her under duress. If you’re going to loose your business, your license, be fined or have to deal with the legal system, you’re bring forced. Remember, if you don’t do what the government says, the end product is lost of your life. That’s the force the government uses.

      1. “If you’re going to loose your business, your license, be fined or have to deal with the legal system, you’re bring forced.”
        If that’s your argument, then Christians have been terrorizing gay people with sodomy laws since 1788 (signing of the Constitution) and non-discrimination law since 1964.

        But sure, let’s talk about how gay people are the big ol’ bullies for getting covered under the same laws that protect their oppressors from retaliation.

        To be clear, I’m dandy as candy with just getting rid of non-discrimination in public accommodation laws. But so long as I have to provide services for people whose holy book literally calls for my death, the argument that baking a cake for gay people is tyranny really ain’t that persuasive. Worst case scenario, we’re no better then you in this regard. But we never threw you in jail for being Christians?, so we’ve got other scores where we beat you.
        ________
        ?in America, that’s exclusively been the work of other Christian denominations.

  16. Ms Stutzman can only claim her first amendment free exercise rights are infringed if she claims her religion requires her to be mean and nasty to Gay and Lesbian couples, which does not seem to be the case here.

    Creating floral arrangements is not indicating support of the event, it just indicates a commercial exchange.

    If we have non-discrimination ordinances, they need to be applied neutrally, which is the case here.

    If you want to take the pure libertarian doctrinal position, that ND ordinances should be repealed, then you need to sort out a massive amount of case and cultural law that developed over the past 150 years.

    And there is one other point missing: this was not flowers for a wedding of a same sex couple, this was flowers for non non-wedding celebration of their relationship. (It might have been a reception for a Domestic Partnership, that detail is missing, but the situation predates the Washington state equal marriage law.)

  17. Y’know, there are literally hundreds of non-discrimination in public accommodation cases every year. But the only ones that seem to make it into the news are the same half-dozen that have been kicking around for the last decade (Arlene’s Flowers has been kicking around since 2012/2013. The “photographer” that keeps being mentioned? That was Elane Photography back in 2005 I think.)

    Makes it hard to believe this is actually about the tyranny of non-discrimination law, and not just giving cover for anti-gay folks. I mean, face it… when you’re only talking about the tip of the iceberg, year after year, and never say a word about the rest of it? It kind of gives the impression that you don’t actually care about the iceberg.

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