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.

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.