http://www.atg.wa.gov/uploadedFiles/Home/News/Press_Releases/2015/Arlene%27s%20Flowers%20summary%20judgment.pdf
Earlier today, a state court judge in Washington granted summary judgment on the merits against Arlene's Flowers and its owner Barronelle Stuzman. I believe this is the first judicial decision in a wedding vendor case since Elane Photography (the Oregon and Colorado bakery cases were both decided by ALJs, and the Iowa venue case recently settled). Doctrinally, this case is of particular interest because the Washington Supreme Court has interpreted the religious freedom provision in its state constitution as providing greater protection than *Smith*. The court ostensibly adheres to *Sherbert *and strict scrutiny, but its decisions sometimes add language about reasonableness and deferring to the legislature on necessity that seems inconsistent with true strict scrutiny (and perhaps even intermediate scrutiny). In any event, in analyzing the state free exercise defense, the trial court here: 1. Assumed that Washington's antidiscrimination law substantially burdened Stuzman's exercise of religion 2. Found that "combating discrimination in public accommodations" is a compelling interest (relying on *Roberts v. Jaycees* and the dicta in *Hobby Lobby *about prohibiting race discrimination) and that "there is no compelling legal argument for a different result for the Legislature's decision to include the protected class of sexual orientation" than its decision to include race and gender in the antidiscrimination law 3. Concluded that there is no less restrictive way for the state to advance its compelling interested in eradicating sexual-orientation discrimination in public accommodations than prohibiting all such discrimination - "The Defendants claim that the WLAD is not narrowly tailored because the State could achieve its goal in other ways. Defendants propose an approach to the issue of discrimination, where businesses would be allowed to deny goods and services on the basis of sexual orientation, and such businesses would simply refer that person to a non-discriminating business. This rule, of course, would defeat the purpose of combating discrimination, and would allow discrimination in public accommodations based on all protected classes, and thereby defeat the rule of *Heart of Atlanta Motel*.... Because the Court is not to determine the reasonableness of religious beliefs...., under Defendants' argument the 'Curse of Cannan' would stand as equal justification for racial discrimination as does Stultzman's adherence to the Resolutions of the SBC as a basis for refusing service to Ingersoll and Freed." The court also rejected Stuzman's federal free exercise arguments (citing *Smith *and *Lee*) and her free speech argument (citing *Rumsfeld *and *Elane Photography*). Interestingly, there is another major case pending out of Washington involving a free exercise claim by a business: the *Stormans v. Wiesman *pharmacy case (refusal to dispense emergency contraception) that was argued in the Ninth Circuit in November. The arguments in that case have centered on the federal Free Exercise Clause and the pharmacy's claim that the state's stocking and dispensing rules are not neutral and generally applicable. - Jim
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