The Volokh Conspiracy

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Volokh Conspiracy

Florists who do weddings must provide flower arrangements for same-sex weddings

|The Volokh Conspiracy |


So the Washington state Supreme Court unanimously held this morning, in State v. Arlene's Flowers.

The florist argued that the First Amendment barred the government from compelling her to speak, and flower arranging should qualify as protected expression for First Amendment purposes. But the court concluded that flower arranging isn't sufficiently expressive to qualify. (I think the analysis should be different for people who produce material that has been traditionally viewed as expressive, such as photographers, calligraphers, printers, singers, artists and the like, though it's not clear how Washington state's Supreme Court would decide on that.)

The florist also argued that the state of Washington's Constitution had been interpreted to presumptively exempt religious objectors from legal requirements that would violate their religious beliefs. But the court held that, even if this rule applied here, the presumption was rebutted: The government had a compelling interest in "eradicating barriers to the equal treatment of all citizens in the commercial marketplace" (whether same-sex couples could easily get the same floral arrangements from other florists).

For more on this general question, see my post on the Colorado baker decision, which is in many ways quite similar. The Kentucky printer case—in which the compelled speech case is much stronger, I think—is still pending before the Kentucky Court of Appeals; more on that in this post.

As to the future of this particular case, I doubt the U.S. Supreme Court will review the case further: It could only review the First Amendment issue (since the state supreme court is the final decision-maker on the state constitutional issue), and the compelled speech case here is weaker than in the New Mexico wedding photographer case, which the U.S. Supreme Court refused to hear. The other First Amendment arguments in the case also seem unlikely to interest that court.

Thanks to David Stearns for the pointer.

Eugene Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA and a Visiting Fellow (Senior Fellow starting May 2024) at the Hoover Institution (Stanford). Naturally, his posts here (like the opinions of the other bloggers) are his own, and not endorsed by any educational institution.