The Volokh Conspiracy

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Volokh Conspiracy

Washington Court Reaffirms That Florists Must Serve Same-Sex Weddings

The U.S. Supreme Court had sent the case back down to be considered in light of the (narrow) Masterpiece Cakeshop decision.


This morning's opinion is here.

1. The florist had 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 in 2017 (and reaffirmed now) that flower arranging isn't sufficiently expressive to qualify.

2. The florist had 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 concluded in 2017 (and again now) 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" (even if same-sex couples could easily get the same floral arrangements from other florists).

3. After last year's Masterpiece Cakeshop decision, the U.S. Supreme Court sent the case back to be reviewed in light of that decision. But though some Justices would have generally recognized a First Amendment right of wedding cake bakers (and thus likely florists as well) to refuse to serve same-sex weddings, the majority's decision was much narrower: Based on the particular actions of the government authorities in that case, the Court held that Masterpiece Cakeshop had been unconstitutionally discriminated by the state adjudicative agency against based on its religion.

In today's decision, the Washington Supreme Court concluded that there was no evidence of such religious discrimination by any adjudicative agency or court against Arlene's Flowers. And it saw no occasion to revisit its free speech and religious exemption analysis, because the Masterpiece Cakeshop majority reasoning didn't affect that analysis.

4. Presumably Arlene's will now petition the U.S. Supreme Court to review the decision again, and it's possible that the Court will agree to consider the case. Or the Court might instead want to wait for a case where the free speech issue seems to be more clearly teed up, such as the calligrapher or videographer cases that are likely to be decide soon by state and federal appellate courts. (Calligraphy and videography are more likely to be seen as inherently expressive than cake baking, or than flower arranging, though perhaps flower arranging might be somewhere in the middle.)

My view is that writers, singers, artists, photographers, videographers, printers, and calligraphers should generally have a Free Speech Clause right to refuse to create or perform material they disapprove of, including by refusing to do things

  • for same-sex weddings (even if that violates state bans on sexual orientation discrimination),
  • for Scientology events (even if that violates state bans on religious discrimination),
  • for Democratic or Republican events (even if that violates some cities' bans on political affiliation discrimination), and the like.

I don't think that extends to cake bakers (at least so long as they aren't asked to write particular words or include any conventionally understood symbols). I'm not sure about florists. The Washington Supreme Court would, it seems, reject all such claims, and at least the florists'. We may soon see what the U.S. Supreme Court says.