Barronelle Stutzman, who runs a florist’s business in Washington State in the USA, has just lost another appeal in court proceedings based on her decision to decline to prepare floral arrangements for a same-sex wedding. In State of Washington v Arlene’s Flowers Inc and Stutzman, (Wash SC, En Banc, No 91615-2; 16 Feb 2017) the 9 members of the Washington Supreme Court upheld an earlier order that she pay damages and also the costs of her opponents, likely to run into hundreds of thousands of dollars. (Note that, of course, this is not a decision of the final court of appeals, the US Supreme Court; whether or not there is an appeal to that court remains to be seen.)

You can see Ms Stutzman speak about the circumstances in a video here. In short, she had catered for one member of the couple by supplying flowers for him for many years, knowing he was gay. But it was only when he asked her to devote her artistic talents to the celebration of a same-sex marriage, a union she saw as contrary to God’s will according to her Christian faith, that she politely declined. She was then sued both by the State of Washington (under the Washington Law Against Discrimination, WLAD, which includes “sexual orientation” as a prohibited ground of discrimination), and in separate proceedings by the couple themselves.

The Arlene’s case is only one of a number of examples of cases involving participants in what might be called the “wedding support industry,” who have been sued for sexual orientation discrimination after declining to devote their skills to the celebration of a homosexual marriage relationship. (I have mentioned this specific case in a previous blog post here, and other cases here.) I dealt with a number of the issues in my article on “Freedom of Religion and Balancing Clauses in Discrimination Legislation” (2016) 5/3 Oxford Journal of Law and Religion 385-430. Following the approach taken in that article, I want to analysis this most recent decision under the headings:

1. Is this sexual orientation discrimination?
2. If so, is there or should there be some “balancing clause” applicable to recognise religious freedom?

I will then turn to briefly discuss the policy issues that arise in these cases, and address the fear that recognition of religious freedom here would lead to serious impairment of other rights and freedoms.

1. Is this really sexual orientation discrimination?

Even before we consider specific “defences” or balancing clauses relating to religious freedom that might be applicable, we need to consider as a preliminary question- is this sort of decision really sexual orientation discrimination?

The word “discrimination”, of course, has taken on an almost quasi-religous overtone itself, in the “religion” of secularism. In popular discourse applying the label, “discrimination” is enough to condemn an action as obviously wrong. But the concept, properly understood in its legal context, is a complex one, and accusations of “unlawful” discrimination need to be carefully considered.

The first point to make is that not every act of “choosing” between one person and another, or “making distinctions”, amounts to unlawful discrimination. An essential point is that for the distinguishing to be unlawful it needs to be based on a “prohibited ground”. I may consider “One Nation” supporters, or alternatively members of the Communist Party, to be misguided. If someone approaches me for a job and I discover that they support one or the other political party, I am in most parts of Australia perfectly at liberty to decline to appoint them on the basis of their political opinion. Certainly in NSW there is no “prohibited ground” of political opinion. So there will need to be questions in each case about whether the ground of decision-making is prohibited.

The second point to make is that even where a prohibited ground is involved, in some cases I may not be unlawfully discriminating if my choice to hire or serve a person is based on that ground, where that ground is relevant to the decision being made. The applicable discrimination laws will usually spell this out. If I am casting a film about the life of the Rev Martin Luther King Jr, it will be relevant whether or not the lead actor is a male, or is an African-American. Both Commonwealth and NSW discrimination laws allow me to make a decision on those bases. (See, eg, the Sex Discrimination Act 1984 (Cth) s 30(2)(b).)

So, to come to our main question, is it an act of forbidden “sexual orientation” discrimination to decline to provide commercial goods or services for a ceremony celebrating a same-sex sexual relationship?

The Washington Supreme Court said that it was in this case. The relevant part of the WLAD (Revised Code of Washington 49.60.215) provides:

(1) It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, … or the refusing or withholding from any person the … patronage, [or] custom, … in any place of public … accommodation … except for conditions and limitations established by law and applicable to all persons, regardless of … sexual orientation ….

A “place of public accommodation” includes a shop selling goods to the public. In addition, as the court noted at p 11 of the judgment:

Additionally, the WLAD states that “[t]he right to be free from discrimination because of . .. sexual orientation … is recognized as and declared to be a civil right,” RCW 49.60.030(1) (emphasis added [in original]).

It was put with some force by Ms Stutzman’s lawyers that she bore no discriminatory animus towards the customers, one of whom she had served for many years. Her decision was not based on the “orientation” of the customers towards same-sex sexual relations, but simply on the basis that they were asking for support for a ceremony celebrating such relations, contrary to the religious beliefs of Ms Stuzman.

The court rejected this argument by referring to previous decisions which had declined to recognise a relevant distinction between “status” and “conduct”, and in particular other decisions which had ruled that declining to provide services to a same-sex wedding amounted to discrimination on the basis of the sexual orientation of the parties. The court cited in fn 3 at p 13, and effectively approved, the decisions in Elane Photography) LLC v. Willock, 2013-NMSC-040, 309 P.3d 53 (2013) (dealing with a wedding photographer; see comment in this previous post) and Mullins v. Masterpiece Cakeshop, Inc., 2015 COA 115, ~~ 1-2, 370 P.3d 272 (2015) (dealing with provision of a wedding cake; previous comment here.)

The logic applied by the courts here seems to be this: that engaging in a same-sex wedding is “closely correlated with sexual orientation” (a quote from the Elane case in fn 3), and that “some conduct is so linked to a particular group of people that targeting it can readily be interpreted as an attempt to disfavor that group” (p 14, quoting Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270, stating that “[a] tax on wearing yarmulkes is a tax on Jews”).

Remarks of this sort are regularly found in cases on this topic. But it is worth pressing a little closer in to the reasoning. Are these statements saying that disfavouring certain “closely correlated” conduct is itself unlawful discrimination? Or does it rather provide strong evidence of such discrimination? If the latter, then there would still be room for countervailing evidence to be produced (which would seem to be available here) that a decision had not been taken based on the inherent “orientation” of the person towards same-sex sexual activity. With respect, the Washington Supreme Court does not deal with this issue properly.

The distinction between animus against homosexual persons, and a refusal to support same-sex weddings, can be seen most clearly in a case which may now be on its way to the UK Supreme Court, the Ashers Bakery case. There bakers in Northern Ireland declined to produce a cake with the message “Support Gay Marriage”. The cake was not wanted for an actual wedding, but for a political event agitating for change in the law. As noted in my previous comment on the case, both at first instance and on appeal to the NI Court of Appeal the bakers were found to have behaved unlawfully. This is a particularly stark example of a case where it seems clear that objection to the ceremony, not the persons involved, was the reason for the refusal. Few commentators have supported the decision, which is hopefully to be appealed to the UK Supreme Court.

There are no Australian cases directly on point. There is one lower court decision I have noted previously, in “Sexual orientation and sexual behaviour: can they be distinguished?“(Feb 21, 2015), which holds that the “orientation” of being “polyamorous” is different to the behaviour of having multiple sexual partners at the same time. But another decision of an appellate court, the Victorian Court of Appeal decision in Christian Youth Camps Limited v Cobaw Community Health Service Limited and Mark Rowe [2014] VSCA 75 (16 April 2014) (for detailed comment on this case see my previous post and linked articles) rejected an argument that in denying a booking to a group that was lobbying for the “normalisation” of homosexuality, the Christian group concerned was not basing its decision on the orientation of the group members, but (impliedly) on their “behaviour” of lobbying for a particular viewpoint.

The result at the moment seems to be that the decision of the Arlene’s  court is consistent with other courts, which have ruled that declining to take part in celebrating a same-sex wedding may amount to sexual orientation discrimination. With respect, it seems to me that there is more to be said on this point.

2. Religious freedom defence

Even if we concede for the moment that a prima facie case of sexual orientation discrimination may be made out, is there a defence that can be used in these circumstances with reference to the sincere religious belief of the small business operator that the relationship being celebrated is sinful?

In the Arlene’s case there were two possible defences, neither of which succeeded. The first was a claim that the “free exercise” clause of the First Amendment to the US Constitution meant that Ms Stutzman’s support for the wedding could not be coerced by State law. (The First Amendment has long been regarded as applicable to State, as well as Federal, laws.) As the court summed up at p 34 in considering the defence:

The free exercise clause of the First Amendment, which applies to the States through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940), provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Here, however, Ms Stutzman’s claim for First Amendment protection foundered on the rock of the notorious decision of Emp ‘t Div., Dep ‘t of Human Res. of Or. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). That case holds that a neutral, generally applicable law which does not specifically “target” religious belief does not breach the free exercise clause, even if it imposes a serious burden on those with religious beliefs.

In many other jurisdictions in the United States, it might have been possible to rely on a State-level “Religious Freedom Restoration Act” (RFRA), part of a series of such statutes introduced following the Smith decision to restore a higher level of protection to religious freedom. (I have noted RFRA’s in previous posts- see here for a detailed discussion.) There is apparently no such Act in force in Washington State. However, interestingly, the Washington State Constitution, Article I s 11, contains a version of a “free exercise” right which has been held in the past to give protection of a “strict” nature similar to the RFRA provisions (see the general discussion of this at pp 42-47). This amounts to a test which holds that:

where a party has (1) a sincere religious belief and (2) the exercise of that belief is substantially burdened by the challenged law, the law is enforceable against that party only if it (3) serves a compelling government interest and ( 4) is the least restrictive means of achieving that interest (at p 47)

Sadly, in my view, the application of a “strict scrutiny” test of this sort still did not assist Ms Stutzman. While accepting that her religious beliefs were “burdened” by the law, the court held that government had a “compelling interest” in the sexual orientation laws, and that the law as it stood was the “least restrictive” way of meeting that goal,

What compelling interest was at stake? At pp 48-49 the court draws a parallel with older decisions which ruled against religious freedom in cases impacting “health and safety” (laws requiring compulsory vaccinations, for example.) But they then move quickly to equating such laws with discrimination laws. To the proposition that here it was easy for the  parties to find other florists, the court quotes a previous Alaska decision:

 

“[t]he government views acts of discrimination as independent social evils even if the prospective tenants ultimately find housing.”

Later they cite another decision which refers to the “overriding compelling interest of eliminating discrimination”. But in light of what we have noted previously, this is completely circular! Something is only “discriminatory” in the required sense if the choice that has been made has been made on “irrelevant” grounds; and the issue at stake here is to identify what “relevant” grounds are available for decision-making.

In the end it seems that the “independent social evil” being dealt with here is neither more nor less than the feeling of offence or upset caused by being told that someone else in the community does not support one’s personal sexual decision. Yes, to be told this in the middle of planning a ceremony to celebrate a relationship will be particularly painful. But the question that courts and government need to grapple with, it seems to me, is this: how do we also value the deeply held religious convictions of the persons being told that they will have to devote their artistic talents to the celebration of a relationship they see as fundamentally contrary to God’s will for humanity? There will be a deep harm caused to the business owner as well. Neither harm is easily measurable or observable. But it is at least plausible that the harm caused to someone required to go against their religious beliefs may be equally as important as, and it has to be said, perhaps more important than, the momentary harm caused by being required go to another service provider for one’s wedding.

(It should be added, if it is not already clear, that claims for religious freedom here are not a claim to refuse all services or goods to someone because they are same-sex attracted. The claim is made in the very narrow, and specific, case of a request, not simply to supply raw materials, but to devote artistic skill and talent to making a day as special as a wedding is intended to be, when the relationship being celebrated is contrary to one’s deeply held religious beliefs.)

In Australia protection of religious freedom is very patchy. It is possible that a small business owner in Victoria, where there is specific protection for religious freedom of individuals under the relevant discrimination law, might be able to make out the case for a defence. But the very narrow approach taken to interpretation of a similar provision in previous Victorian law in the CYC v Cobaw case previously noted, does not augur well for such protection. (I discuss this in more detail at pp 420-426 of the OJLR article noted previously).

3. Policy-should small business owners be protected in these cases?

The question as to whether the law should provide protection for wedding industry participants in these sort of cases is highly contested. Some of the differing arguments can been seen in the recent Parliamentary report noted in my post: “Report of the Select Committee on Same-Sex Marriage Bill” (Feb 15, 2017).

Perhaps some of the difference of opinion lies in the difficulty of recognising the harm suffered in these circumstances on both sides. Those who are opposed to same-sex marriage on religious grounds need to feel the hurt and exclusion that may come home to a same-sex couple looking to joyfully celebrate their relationship with friends and family, only to be reminded that others do not approve of that relationship. Those who are in favour of same-sex marriage need to remember that religious commitments are not a simple matter of prejudice or bigotry; they involve a commitment of one’s whole life to a view about the meaning of existence. Views on sexual behaviour are simply one part of a deeply embedded world view, which for many orthodox Christians involves an abiding trust in the word of God, the Bible, which believers are not at liberty to rewrite in accordance with current social mores.

A friend expressed concerns to me that recognition of an over-riding force for religious beliefs may mean harm to the vulnerable. They cited the example of a disabled person who needs a companion dog, being refused a taxi journey where the driver’s religious beliefs object to dogs. While this is a difficult issue, there are many examples (as noted by the Washington Supreme Court) where the law has to prioritise bodily health and safety over religious beliefs, and I would see this case in that category. But each type of case needs to be examined on its own merits. And where the harm being caused involves, not physical injury, but offence and hurt feelings, and an alternative service can easily be obtained, it seems to me clear that the law should not lightly over-ride the religious beliefs of those whose faith sees the relationship they are being required to celebrate, as contrary to God’s word.