Last week, a famous set of court cases: Arlene’s Flowers v. State of Washington and Ingersoll and Freed v. Arlene’s Flowers, Inc., was settled, allowing both sides to retreat with some feeling of vindication.
The case concerned Barronelle Stutzman, owner of a flower shop in eastern Washington state who was friends with a local gay male couple — but who refused to provide flowers for their same-sex wedding because of her traditional Christian beliefs about marriage.
The gay couple sued her and then the state attorney general, Bob Ferguson, also sued her, saying she couldn’t discriminate on basis of religion. It wasn’t about discrimination, she said. After all, she’d served gay customers before and had employed gay florists in her shop. But her religious beliefs gave her no choice but to refuse to create floral arrangements for the wedding rite.
The case went to the U.S. Supreme Court. The high court, which had just ruled on a similar Colorado case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, remanded it back to Washington state for further consideration in light of their favorable decision on behalf of the owner of the cake shop. But, true to form for those of us living in this ultra-blue state, the Washington Supreme Court ruled again against Stutzman.
The case returned to the U.S. Supreme Court, where Justices Neil Gorsuch, Samuel Alito and Clarence Thomas agreed to take the case. However, that was one justice short of what was needed. (An essay at First Things asked questions about why certain other conservative justices bailed on taking this case).
Now 77 and more than ready to retire, Stutzman settled this month, paying Robert Ingersoll, one of the two men, $5,000 and freeing herself of additional legal costs. You may remember that she raised some $174,000 through GoFundMe before the managers of the website rejected her beliefs and shut her down.
Here's how the Tri City Herald, the local paper, covered the Stutzman’s finale:
A Richland florist mired in an 8-year legal battle that reached the U.S. Supreme Court will retire after settling with the same-sex couple whose wedding was at the center of the lawsuit.
Barronelle Stutzman announced the settlement …, saying she has paid $5,000 to Robert Ingersoll. She also wished Ingersoll, who had been her customer for nearly 10 years, “the very best.”
Ingersoll and his husband, Curt Freed, plan to donate the settlement payment to a local PFLAG chapter, and personally match the $5,000. The agreement allows Stutzman to “preserve her conscience” by not forcing her to act against her religious beliefs as a Southern Baptist, according to a news release from her attorneys with Alliance Defending Freedom.
Very cut and dried. The Associated Press picked up that story, which was run across the mountains in the Seattle Times. Frankly, I wish there’d been some original reporting.
KFLD, a local radio station based in Pasco (one of the Tri Cities along with Richland), saw it this way.
It began in 2013 when the ACLU brought a lawsuit against Barronelle Stutzman, owner-operator of Arlene's Flowers in Richland. Robert Ingersoll had sought her services to provide flowers for his same-sex wedding.
Utilizing her 1st Amendment Rights and other laws, Stutzman declined, saying it would violate her faith to show support for such a marriage. She went as far as to offer Ingersoll some alternatives, including other florists who would help. But that wasn't enough for him, and he and the ACLU sued. She even offered to sell him products and let his group make the arrangements themselves. But again, not good enough.
Let me use a passage from that First Things essay to explain the real issue here:
A central tenet of free speech doctrine is the freedom not to speak: No one should be compelled to express something that she does not believe. As Thomas Jefferson put it, it is “sinful and tyrannical” to compel someone to support “the propagation of opinions which he disbelieves.” But in the wedding vendor cases, the message, or the expressive element, is the only thing that either side cares about.
The vendor, though willing to serve any customer, objects to creating a product that she believes expresses approval of same-sex marriage. For their part, the customers have had no difficulty getting the product or service they desire from other vendors. It is not the loss of a product or service that they complain of, but rather the “dignitary harm” entailed by the vendor’s expression of disapproval of their same-sex union.
So true and it’s something I don’t see many reporters focusing on. Everyone knows there are multiple florists near where Stutzman works; the above video shows two of them. The issue is that Robert Ingersoll felt insulted by Stutzman’s religious beliefs and — longtime friend or not — he was going to punish her.
First he had to make the case for this “dignitary harm.”
This very complete Christian Science Monitor story about the Arlene’s Flowers case illustrates how he did so.
Ingersoll wrote to the Monitor that he was “overwhelmed by the rejection from someone I had done business with for years.” He added: “While trying to remain composed, I was of course flooded with emotions and disbelief of what just happened.”
He said he was aware that some religious conservatives were opposed to same-sex marriage, but he did not know that Stutzman was one of them. Freed says her refusal has had a lasting impact.
“We had not made other arrangements for our wedding, and this was really the first contact with a vendor we made,” he said. “We immediately became concerned that we were going to experience the same treatment from other vendors as well. The experience left us feeling isolated, singled out, and discriminated against.”
Some of us (including the famous gay journalist Andrew Sullivan) may tell him to show some tolerance and move on to the next florist. Read more of the Monitor story to learn how the helpful intervention of Washington’s state attorney general and the American Civil Liberties Union persuaded the couple to channel their hurt feelings into a lawsuit.
The same thing happened just to the south near Portland, Ore., when a bakery called Sweet Cakes by Melissa got fined $135,000 because of the hurt feelings they caused to a lesbian couple that sued them for not providing a wedding cake.
Click this link for a sample of the 88 reasons for being offended that were cited by one woman and the 91 cited by another. Sample: “Disillusionment, dislike of going to work, distrust of former friends, distrust of men.” Also, feeling “mentally raped.” And we won’t get into the fact that there’s a third lawsuit –- this one from a transgender attorney -- against Jack Phillips of Masterpiece Cakeshop fame.
Again, it’s that “dignitary harm” argument. I wish journalists would get to the bottom of what’s really going on in these cases. Maybe you saw this Washington Post piece about a plaintiff who asked a Denver bakery to create a cake saying “God hates gays” on it, was refused and filed a civil complaint. (The plaintiff openly admitted he was testing to see whether the Colorado Civil Rights Commission would treat his complaint the same way it treated the Masterpiece complaint. It didn’t.) This Harvard University Civil Liberties Review sets out the differences in the Masterpiece vs “God hates gays” cakes here. Warning: It’s very long.
But as this Washington Examiner piece notes, Stutzman may be calling it a day, but the issue is not settled, especially when the Supreme Court keeps on avoiding something definitive on the matter. Even their ruling on the Cakeshop case was based on a technicality and not on whether religious beliefs trump discrimination — or the other way around. They didn’t address whether refusing to participate in creating art with a certain viewpoint IS discrimination.
Then there is the matter of whether one can use hurt feelings as the grounds for a lawsuit. From the Examiner:
In some ways, the settlement feels like a loss. Stutzman should not have had to pay Ingersoll one cent. She has the right to believe in and live by her religious convictions, even in matters of business, and it is shameful that the courts refused to protect that right.
It is also a disgrace that the ACLU, an organization that stopped pretending to care about civil liberties a long time ago, pursued the case against Stutzman so viciously that she felt she couldn’t continue. And who could blame her? The ACLU was trying to take everything she owned: her business, her house, her assets.
In her closing statements, Stutzman referred to a Denver-area case, 303 Creative v. Elenis, as the one that will hopefully force the Supreme Court to rule definitively on compelled speech. The owner of 303 Creative, Lorie Smith, says Colorado law mandates that her marriage site web design business include same-sex weddings as well, which she won’t do. So far, she’s lost at district and circuit court level.
What lies ahead is a perfect storm involving the First Amendment, non-discrimination for homosexuals and centuries of religious beliefs. Future coverage has to balance all three and get the facts right.
FIRST IMAGE: Press photo provided by the Alliance Defending Freedom.