The florist, the baker and the photographer- religious freedom and small business

One of the most vexed questions in the religious freedom area at the moment is the clash between religious views and support for same sex marriage, and three cases in which this clash has been evidenced all involve people in what might be called the “wedding support industries”- a florist, a baker and a photographer. The most recent is the decision of the Benton County Superior Court in the US State of Washington in the combined proceedings in State of Washington v Arlene’s Flowers Inc, Ingersoll & Freed v Arlene’s Flowers Inc (Ekstrom J, Nos 13-2-00871-5, 13-2-00953-3; 18 Feb 2015). There Barronelle Stutzmann, proprietor of the business, and her firm, were held liable for breaching the State’s anti-discrimination laws prohibiting denial of a service on the basis of sexual orientation. Stutzmann, who had supplied one of the complaints, Ingersoll, with flowers for some time, declined to do so on the occasion that he invited her to do the flowers for his proposed same sex wedding, on the basis of her Christian commitment and a desire not to support such a ceremony.

Stutzmann’s claim that her refusal to provide the flowers was not based on the sexual orientation of the client (whom she had often served previously), but rather on her desire not to express support for same sex marriage, was rejected by the court. She tried to rely (see lines 12-15 on p 28 of the linked transcript)  on the distinction between conduct and orientation (as to which see my previous post, referring to other cases where this distinction has been not recognised by the courts, and one where it has.) But the court rejected the distinction, saying that there was US Supreme Court authority refusing to recognise it. In Christian Legal Society v Martinez 561 US 661 (2010) at 689, the Supreme Court held that a University legal society could not decline to have as leaders those who engaged in or supported same sex intimacy, refusing to draw a distinction between “status and conduct”. The Washington court held, following the earlier decision in Elane Photography (see below), that same sex marriage was “inextricably tied” to sexual orientation.

The claim that this was in breach of Stutzmann’s religious freedom rights was rejected on the basis that, in accordance with the prevailing judicial interpretation of the First Amendment, Employment Division v Smith 494 US 872 (1990), religious views must give way before a law of “neutral application” not targeted at religion.

The case of the wedding photographer proved influential here. In Elane Photography, LLC v Willock, 309 P 3d 53 (NM, 2013) a wedding photographer who declined to take on the photography duties for a same sex commitment ceremony was also found guilty of sexual orientation discrimination and fined, the US Supreme Court refusing to grant leave to appeal from the decision of the New Mexico Supreme Court.

Across the Atlantic, similar issues have arisen for a firm of bakers, Ashers Baking Company, who declined to produce a cake supporting same sex marriage when requested to do so. See here for more details. This case seems all the more odd, as it was not requested for the celebration of anyone’s wedding; it was simply to bear a slogan in support of introducing same sex marriage into Northern Ireland, which does not yet recognise the institution. While there has as yet been no hearing, the local Equality Commission has brought proceedings against the firm for sexual orientation discrimination.

In each of these cases, the last especially but also in the others, it seems arguable that what is involved is not discrimination against persons of a particular orientation, but a refusal to provide support for an institution (same sex marriage) which is regarded as morally wrong. There does indeed seem to be a valid difference between simple provision of a service (as had often been done by Ms Stutzmann, for example) and the purchase of the artistic skills and talents of a person to celebrate and support the event of a same sex wedding. The courts, if they were minded to, could implement this distinction by finding that refusal to provide artistic support for the event was not in fact unlawful “sexual orientation discrimination”. After all, not all homosexual persons believe that same sex marriage is a good idea. The fact of homosexual identity and support for same sex marriage are not, as the courts seem to think, “inextricably linked”. If the courts are unable to implement the distinction because of previous binding rulings, then legislators could choose to do so. It is suggested they should do so, and provide a clear avenue for recognition of religious freedom in the context of state support for discrimination laws. The comments of the Washington court here, that once same sex marriage had been introduced into Washington State there was a “direct and insoluble conflict between Stutzmann’s religiously motivated conduct and the laws of the State of Washington” (lines 12-13 on p 58), are with respect too pessimistic. There are other avenues where both important interests can be recognised.