Late last week, the Supreme Court ratified an injustice. The fact that I understand why they did it—and that the case was going to be difficult to win on the merits—does not make it any easier to accept the ultimate outcome. But it is, I think, a teaching moment, one that can demonstrate how the law won’t always address unfairness, and how the unwillingness to address gray areas of the law (perhaps in support of larger legal goals) can create injustice.
I’m talking about the case of Barronelle Stutzman and the wages of punitive American intolerance. Barronelle’s legal ordeal began more than eight years ago, when the attorney general of Washington sued her business, Arlene’s Flowers and Gifts, and Barronelle personally for refusing to make and sell custom flower arrangements for a gay wedding.
The actual facts of the case cry out for patience and tolerance. Barronelle had long served a gay customer named Rob Ingersoll. Their relationship spanned almost 10 years, and she’d designed a number of custom-designed floral arrangements to commemorate milestones in his life. Then, in March 2013, Ingersoll asked Barronelle to “do the flowers” for his wedding to his fiancé.
Barronelle, a Christian who believes God ordained marriage as the union of a man and a woman, had never been asked to design floral arrangements for a gay wedding. After thinking through the matter and praying with her husband, she decided that couldn’t in good conscience use her artistic gifts to celebrate a union that she believed to be scripturally wrong.
Here’s what happened next, according to Barronelle’s petition to the Supreme Court:
When Robert returned to the shop, Barronelle walked with him to a quiet corner, “gently took his hand, looked him in the eye, and told him that [she] could not do his wedding”—or “be a part of his event”—because of her “relationship with Jesus Christ.” Robert testified that she took no “joy or satisfaction” in having to tell him that. Robert said he understood, and they discussed his engagement and wedding plans. Barronelle gave him the names of three nearby floral artists she knew would do a good job. They hugged, and Barronelle expected they would remain friends with a disagreement about marriage.
After Ingersoll’s fiancé posted about the matter on Facebook, Barronelle’s decision not only gained media attention, it resulted in an outpouring of support for Ingersoll and his fiancé. They received enough offers of free floral services that they “could get married about 20 times.”
Let’s pause here for a moment. In a tolerant and decent pluralistic society, this is where the matter should have ended. Barronelle acted in accordance with the dictates of her conscience, she helped Ingersoll obtain all the floral services he needed, and he was flooded with public support. There was no real harm.
But no: The attorney general of Washington on his own filed suit against Barronelle, and did so in a particularly pernicious way—seeking damages and attorneys fees from Barronelle’s business and from Barronelle personally. Again, here’s her cert petition:
Never before in the history of the State’s Consumer Protection Act (“CPA”) had the Attorney General pursued a CPA claim based on a violation of the Washington Law Against Discrimination (“WLAD”).
Ingersoll and his now-husband then decided to file their own suit, the cases were consolidated, and an eight-year litigation ordeal began.
Back in my litigation days, there were times when we had to choose whether to file precedent-stretching or potentially-precedent setting litigation. Sometimes we’d choose not to sue. The risk of a significant loss outweighed the chance of an important win, and the client’s personal plight was not so extreme as to demand action. But here there was no choice. Not only was Barronelle defending her rights of conscience, she was defending herself against financial ruin.
So my former colleagues at Alliance Defending Freedom took her case, and an eight-year litigation battle began.
When Barronelle’s case launched, I had two thoughts at once: 1) Barronelle’s defense was correct as a matter of constitutional law; and 2) it was still going to be really, really hard to win. I had the same thought about Jack Phillips’s Masterpiece Cakeshop litigation. The reasons are relatively simple to explain.
Barronelle’s case wasn’t covered by bright-line precedent. Instead, it sits in a gray area between two consensus constitutional doctrines. The first is briefly but decisively outlined in a 1968 case called Newman v. Piggie Park. In Newman, a restaurant owner tried to mount a religious liberty defense to federal public accommodation law. He claimed he had a religious free exercise right to exclude black customers. SCOTUS swatted that argument aside, calling it “patently frivolous.”
The basic rule is simple. If you’re running a secular business that’s open to the public, don’t believe for a second that you have a viable First Amendment right to refuse basic services to customers because they belong to a protected class under applicable civil rights law.
The second doctrine complicates the picture. In 1943, the Supreme Court decided one of its most vital First Amendment cases. In West Virginia v. Barnette, at the height of World War II, the Court held that the state could not force two young Jehovah’s Witness students to salute the flag and recite a pledge to the flag. The opinion contained this immortal paragraph:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
At the risk of oversimplifying, the law works something like this: It’s constitutional to force a public accommodation to provide a commercial service to members of a protected class. But it is not permissible to compel a person to engage in an act of First Amendment-protected expression, even if the expression is part of a commercial service.
Let’s take easy cases. The state can force a cook to make a barbecue sandwich for a black or gay customer. A barbecue sandwich is clearly a service, not a work of art. The state can’t force a painter to paint, say, a Confederate Flag for a white client. The painting might be a commercial product, but it’s also clearly an act of creative expression.
In the gay marriage arena, this is how the Supreme Court articulated the distinction in the Masterpiece Cakeshop case: “while … religious and philosophical objections [to gay marriage] are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Clergy can refuse to officiate a gay wedding, but can commercial vendors opt out?
The argument in the case truly boiled down to the nature of Barronelle’s floral designs. Service? Or artistic expression? I believed that Barronelle drew the correct distinction—that when she’s specifically asked to create a custom floral arrangement she’s creating a unique work of art for a specific event, and the First Amendment should protect her from being compelled to participate.
Moreover, the fact that she had long worked with Ingersoll demonstrated that she was not discriminating on the basis of his sexual orientation (she happily served gay customers and hired gay employees) but rather unwilling to use her artistic talents in a specific religious ceremony (a minister presided over Ingersoll’s wedding).
At the same time, however, I recognize that the line between “art” and “service” can be hazy. If you think it’s simple to draw these lines, I’d urge you to read the Masterpiece Cakeshop oral argument transcript. Jack Phillips’s counsel, my friend Kristen Waggoner, wisely refused to try to create a blanket exemption from non-discrimination laws that would permit all religious owners of secular businesses to refuse to serve gay weddings in any capacity (Phillips would have lost, soundly).
There was simply no support for that position in the court’s recent jurisprudence. Any such argument would have run much closer to the facts of Piggie Park, especially given that actions such as renting chairs, renting auditoriums, and preparing food have little to no inherent expressive content. Chairs don’t send a message. Neither do bacon-wrapped scallops. But at the margins between service and expression, the line-drawing can be difficult. For example, read this portion of the Masterpiece Cakeshop transcript.
Here comes Justice Roberts with the follow-up:
And here’s Justice Ginsburg:
Again, I think this is fair and proper line-drawing. Pre-made cakes (or floral arrangements) not created for a specific ceremony are different from custom cakes (or floral arrangements) designed for a specific wedding of a specific couple. The expressive intent and purpose are materially different.
But is that the only reasonable conclusion? Such that any judge who disagrees is a knave and a coward? Certainly not.
But that brings me to the final point. Barronelle’s case was decided in that hazy line between “art” and “service,” and (as the Masterpiece Cakeshop oral argument made clear) any final ruling for or against her was bound to be narrow, answering a legal question that applies to few controversies in the United States. That was not, however, the public rhetoric around the case.
To parts of the left, anti-discrimination laws themselves were at stake. The specter of Jim Crow loomed over this case and the prior Masterpiece Cakeshop decision. To parts of the right, the issue wasn’t just one of constitutional law, but of judicial courage. Was the court brave enough to back Barronelle? (I’ve grown to loathe how parts of the right are always portraying the court as cowardly whenever it reaches results they don’t like.)
Once the Supreme Court declined to overrule Employment Division v. Smith this term, I had a sinking feeling that Barronelle was going to lose. I hoped the Supreme Court would send it back to the Washington Supreme Court one last time, to reconsider in light of the tweaks to the Smith doctrine the court announced in Fulton v. Philadelphia, but no. Justices Alito, Gorsuch, and Thomas wanted to hear the case, but they couldn’t get that vital fourth vote. Not from Justice Barrett. Not from Justice Kavanaugh. Not from Justice Roberts.
The tragedy here is not for the law. Not yet. There will be other, similar cases before the court in coming years—perhaps even cases with “cleaner” facts. The tragedy is for Barronelle. A kind, brave woman fought hard against punitive intolerance, and she likely ultimately lost for reasons that have less to do with her actions and more to do with the way that SCOTUS chooses to shepherd and shape constitutional jurisprudence.
And this brings us back to the original sin of the case, the litigation that started it all. Barronelle now faces financial ruin—because a public official exercised his discretion to be unnecessarily and gratuitously punitive. He should relent. He should learn a lesson, ironically enough, from Justice Anthony Kennedy, author of Obergefell, who wrote in that very opinion these wise words:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
Barronelle lost her long fight. It was not a fight of hate, but of conviction. She should be applauded, not destroyed.
Another thing …
If you want more analysis of Barronelle’s case–and of the Supreme Court’s wild and contentious last day, listen to today’s Advisory Opinions podcast, with my always-brilliant co-host, Sarah Isgur.
One more thing …
It’s not everyday that your daughter texts you and tells you you’re trending on Twitter, but that’s what happened last night. The internet erupted in cheers and jeers for an op-ed in the New York Times I jointly authored with Kmele Foster, Jason Taylor, and Thomas Chatterton Williams. We span the ideological spectrum so completely that we should have begun the essay with a joke, “A progressive, a moderate, a libertarian, and a conservative walk into an op-ed page…”
The topic was anti-CRT legislation, and here was a core argument:
These laws threaten the basic purpose of a historical education in a liberal democracy. But censorship is the wrong approach even to the concepts that are the intended targets of these laws.
Though some of us share the antipathy of the legislation’s authors toward some of these targets and object to overreaches that leave many parents understandably anxious about the stewardship of their children’s education, we all reject the means by which these measures encode that antipathy into legislation.
A wiser response to problematic elements of what is being labeled critical race theory would be twofold: propose better curriculums and enforce existing civil rights laws. Title VI and Title VII of the Civil Rights Act prohibit discrimination on the basis of race, and they are rooted in a considerable body of case law that provides administrators with far more concrete guidance on how to proceed. In fact, there is already an Education Department Office of Civil Rights complaint and a federal lawsuit aimed at programs that allegedly attempt to place students or teachers into racial affinity groups.
The task of defending the fundamentally liberal democratic nature of the American project ultimately requires the confidence to meet challenges to that vision. Censoring such challenges is a concession to their power, not a defense.
Agree or disagree? Read the whole thing and let me know.
One last thing …
I mean. Come on. This is just absurd.
When does the new NBA season start? Can we get it going before the finals are over?
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