Re: Arlene's Flowers

[James Oleske]

Stutzman did make an argument in that regard, and the Washington Supreme
Court did squarely address it, but neither Stutzman nor the court sharply
distinguished Stutzman's "least restrictive means/narrowly tailored"
argument from her "serves a compelling state interest" argument.

Stutzman's brief included a short section on "narrowly tailored means" (Br.
at 47-48) asserting that the "State must prove that the violation of Mrs.
Stutzman’s fundamental rights is absolutely necessary to accomplish its
asserted interests" and arguing that the State could not do so because
Stutzman was willing to make "good-faith referrals to an alternate
provider" and the same-sex couple "confirmed they had multiple offers from
florists to do their wedding."

A page earlier (Br. at 46), Stutzman made the same argument within the
"does not serve a compelling interest" section of her brief, arguing
that it was "completely unnecessary as a practical matter" to require
Arlene's Flowers to provide the service because the couple "had no trouble
finding another florist in the Tri-Cities area who was happy to design
flowers for their wedding" and "received multiple offers to do so for free."

The court explicitly addressed this argument, but quoted from the version
of the argument laid out in the "does not serve a compelling interest"
section of Stutzman's brief rather than the "narrowly tailored means"
section. Here is the Court's response to the argument:

Stutzman argues that strict scrutiny is not satisfied in this case. She
reasons that since other florists were willing to serve Ingersoll, no real
harm will come from her refusal. And she maintains that the government
therefore can't have any compelling interest in applying the WLAD to her
shop. In other words, Stutzman contends that there is no reason to enforce
the WLAD when, as she puts it, "[N]o access problem exists."

We emphatically reject this argument. We agree with Ingersoll and Freed
that "[t]his case is no more about access to flowers than civil rights
cases in the 1960s were about access to sandwiches." As every other court
to address the question has concluded, public accommodations laws do not
simply guarantee access to goods or services. Instead, they serve a broader
societal purpose: eradicating barriers to the equal treatment of all
citizens in the commercial marketplace. *Were we to carve out a patchwork
of exceptions for ostensibly justified discrimination, that purpose would
be fatally undermined*. Slip. Op. at 52 (emphasis added)


In addition to the final sentence in the passage above, the court also
favorably quoted "no less restrictive means"/"could be substantially
frustrated"/"defeat its compelling purpose" language from several earlier
cases upholding the denial of exemptions from antidiscrimination laws
(Slip. Op. at 51).

- Jim

On Thu, Feb 16, 2017 at 9:26 AM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> No specific discussion of the "least restrictive means" requirement.  Did
> Stutzman make any argument in that regard?
>
> On Thu, Feb 16, 2017 at 12:08 PM, James Oleske  wrote:
>
>> One initial observation: While much of the ground in the opinion has
>> previously been covered by courts in New Mexico and Colorado, this case
>> involved one issue not present in prior "wedding vendor" cases: an
>> exemption claim under a state constitutional provision that has been
>> interpreted to require strict scrutiny post-Smith of burdens imposed by
>> neutral and generally applicable laws (see pages 42-53 of the opinion).
>>
>> - Jim
>>
>>
>> On Thu, Feb 16, 2017 at 9:00 AM, Laycock, H Douglas (hdl5c) <
>> hd...@virginia.edu> wrote:
>>
>>> Unanimous affirmance.
>>>
>>>
>>>
>>> https://www.courts.wa.gov/opinions/index.cfm?fa=opinions.recent
>>>
>>>
>>>
>>> Douglas Laycock
>>>
>>> Robert E. Scott Distinguished Professor of Law
>>>
>>> University of Virginia Law School
>>>
>>> 580 Massie Road
>>>
>>> Charlottesville, VA 22903
>>>
>>> 434-243-8546 <(434)%20243-8546>
>>>
>>>
>>>
>>
>
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Re: Arlene's Flowers

[Marty Lederman]

No specific discussion of the "least restrictive means" requirement.  Did
Stutzman make any argument in that regard?

On Thu, Feb 16, 2017 at 12:08 PM, James Oleske  wrote:

> One initial observation: While much of the ground in the opinion has
> previously been covered by courts in New Mexico and Colorado, this case
> involved one issue not present in prior "wedding vendor" cases: an
> exemption claim under a state constitutional provision that has been
> interpreted to require strict scrutiny post-Smith of burdens imposed by
> neutral and generally applicable laws (see pages 42-53 of the opinion).
>
> - Jim
>
>
> On Thu, Feb 16, 2017 at 9:00 AM, Laycock, H Douglas (hdl5c) <
> hd...@virginia.edu> wrote:
>
>> Unanimous affirmance.
>>
>>
>>
>> https://www.courts.wa.gov/opinions/index.cfm?fa=opinions.recent
>>
>>
>>
>> Douglas Laycock
>>
>> Robert E. Scott Distinguished Professor of Law
>>
>> University of Virginia Law School
>>
>> 580 Massie Road
>>
>> Charlottesville, VA 22903
>>
>> 434-243-8546 <(434)%20243-8546>
>>
>>
>>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
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Re: Arlene's Flowers

[James Oleske]

One initial observation: While much of the ground in the opinion has
previously been covered by courts in New Mexico and Colorado, this case
involved one issue not present in prior "wedding vendor" cases: an
exemption claim under a state constitutional provision that has been
interpreted to require strict scrutiny post-Smith of burdens imposed by
neutral and generally applicable laws (see pages 42-53 of the opinion).

- Jim


On Thu, Feb 16, 2017 at 9:00 AM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> Unanimous affirmance.
>
>
>
> https://www.courts.wa.gov/opinions/index.cfm?fa=opinions.recent
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546 <(434)%20243-8546>
>
>
>
___
To post, send message to Religionlaw@lists.ucla.edu
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