In case it's of interest, I believe the most extensive judicial discussion
of this issue to date comes from the Colorado Court of Appeals in the
Masterpiece Caskeshop case:
on/2015/14CA1351-PD.pdf (pages 12-23).

In concluding that a refusal to provide marriage-related services to a
same-sex couple constitutes sexual-orientation discrimination under
Colorado's civil rights law, the court relies on reasoning in Bob Jones,
CLS, Elane Photgraphy, and Obergefell (see pages 15-18 of the decision).

The court also rejects the bakery's First Amendment compelled speech and
free exercise (selective-exemption theory) arguments, and those issues are
the subject of a cert. petition pending with the United States Supreme
Court (the Colorado Supreme Court denied cert in the case):

I think it is unlikely the Court will grant cert. in the Masterpiece
Cakeshop case, and I think the compelled speech argument is a very
difficult one in light of the Chief's opinion for the Court in Rumsfeld v.
FAIR. But I do think the Court will eventually have to take a case to
resolve the outstanding questions about the contours of the free-exercise,
selective-exemption rule (aka the "Sherbert exception to Smith" or "how
much underinclusion makes a law non-generally applicable?"). Three justices
recently gave an indication of where they were on that issue in Stormans v.
Wiesman (Part III.B. of Justice Alito's dissent from the denial of cert.,
joined by the Chief and Justice Thomas).

Colorado's brief in opposition to Masterpiece's petition is due on November

- Jim

On Mon, Oct 10, 2016 at 7:40 AM, Marty Lederman <>

> Some of you may be familiar with the *Washington v. Arlene's Flowers*
> case, which will be argued in the Washington Supreme Court next month.
> Barronelle Stutzman and her husband are the owners of Arlene’s Flowers,
> Inc., a closely held for-profit corporation.  Over the course of nine
> years, Stutzman regularly sold floral arrangements to Robert Ingersoll,
> knowing that he was gay.  When Ingersoll asked Stutzman to sell him flower
> arrangements for his wedding to Curt Freed, however, she refused to provide
> them, even if they were prepared by others in her shop, because doing so,
> she claimed, would "constitute a demonstration of [her] approval for the
> wedding," whereas in fact she has religious objections to same-sex
> marriages.  (She agreed to provide the raw materials for the
> arrangements--the flowers and such--but not to have her shop do the
> arranging.)
> The Washington Attorney General sued Arlene's Flowers, seeking an
> injunction against such discrimination in the future.  (Ingersoll and Freed
> also sued, seeking nominal damages for the costs they incurred when
> Stutzman refused to serve them.)  The principal basis for the suit is a
> claim of discrimination on the basis of sexual orientation, prohibited by
> the Washington Law Against Discrimination (WLAD), RCW 49.60.215, which
> provides that "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 admission, patronage,
> *custom*, presence, frequenting, dwelling, staying, or lodging in any
> place of public resort, accommodation, assemblage, or amusement."  The
> forms of prohibited discrimination are listed in RCW 49.60.030:  "The right
> to be free from discrimination because of race, creed, color, national
> origin, sex, honorably discharged veteran or military status, *sexual
> orientation*, or the presence of any sensory, mental, or physical
> disability or the use of a trained dog guide or service animal by a person
> with a disability is recognized as and declared to be a civil right. This
> right shall include, but not be limited to: . . . (b) The right *to the
> full enjoyment *of any of the accommodations, advantages, facilities, or
> privileges of any place of public resort, accommodation, assemblage, or
> amusement."
> Stutzman defended on both statutory and state and federal constitutional
> (Free Speech and Free Exercise) grounds; but the lower court ruled
> <>
> in favor of the Attorney General.  The appeal from that decision is now
> before the Washington Supreme Court, which will hear arguments in about
> five weeks.
> A couple of weeks ago, a group of 27 scholars, some of whom are on these
> listservs, filed an amicus brief
> <> on behalf of
> Arlene's Flowers.  (According to Rick Garnett, it was written by Steve
> Smith, although he is not listed as counsel.)  That brief does not make a
> constitutional argument at all.  Instead, it argues (as I read it) that the
> Court should construe the Washington antidiscrimination statute so as not
> to include Stutzman's refusal as prohibited discriminatory conduct in the
> first place.
> The theory of the brief, such as it is, is that Stutzman must not have
> been engaged in discrimination on the basis of sexual orientation, since
> she was willing to make arrangements for Ingersoll--a man who she knew was
> gay--for purposes *other than *his marriage.  The lower court erred,
> according to the brief, "[i]n erroneously treating the religious conviction
> Stutzman does have as equivalent to a different and more troublesome
> objection that she does not have."  She doesn't discriminate against gays
> and lesbians -- "only" against same-sex marriage.
> I, for one, find this argument to be rather alarming, and, best I can
> tell, indefensible.
> As the Washington AG writes in his brief (responding to a similar argument
> that Stutzman offered), "discrimination is discrimination, whether it is
> complete or partial.  An employer cannot say: 'I hire women, but because of
> my religious belief that women should be subservient to men, I will not
> hire women to supervise men.' Similarly, it is irrelevant whether
> Defendants generally serve gay and lesbian customers; their refusal to
> serve the weddings of gay and lesbian customers is still prohibited
> discrimination."
> That's obviously right, isn't it?  The cases demonstrating it are legion.
> Bob Jones University, for example, surely discriminated on the basis of
> race by prohibiting students from interracial dating, even though it
> admitted black students.  Would anyone have argued with a straight face
> that the university did not discriminate on the basis of race, and that it
> was error to treat BJU's rule "as equivalent to a different and more
> troublesome objection that it does not have [i.e., to exclude black
> students altogether]"?  And I'm hardly an expert on Washington state law,
> but there's every indication that its statutes also reflect this idea--see,
> e.g., the bolded passages quoted above, including the reference to "full
> enjoyment."
> To be sure, it would be even worse if Stutzman categorically refused to
> serve gays and lesbians; her refusal "only" in the context of a same-sex
> marriage thus is not *as *problematic and disturbing as such a
> categorical "Gays not served here" policy would be.  But, understandably,
> Washington law, like the analogous laws of the federal government and
> virtually every state, has made it unlawful to engage in both categorical
> *and* selective discriminatory refusals to serve.  There is no reason
> (none that the brief offers, anyway) to think that the Washington
> legislature did not mean to proscribe discrimination in cases where the
> commercial proprietor "hates the sin but loves the sinner."
> The amicus brief's only response to this, far as I can tell, is to argue
> (pp. 8-9) that Arlene's Flowers is not discriminating on the basis of
> sexual orientation because Stutzman would also refuse to sell flower
> arrangements for a marriage between, e.g., two heterosexual men, and she 
> *would
> *sell arrangements to, e.g., a gay man and a lesbian who were marrying
> one another.
> I hope I don't need to explain why this argument is, and ought to be, dead
> in the water.  I'll add only this:  Paul Clement offhandedly offered the
> same argument as to DOMA in his brief
> <>
> for BLAG in *Windsor *("A marriage between a man and a woman would fall
> within DOMA’s definition even if one or both spouses were homosexual.
> Similarly, the marriage of two men would fall outside the definition even
> if both were heterosexual."); but at least he had the good sense to bury it
> in a footnote and otherwise not rely upon it.  Not surprisingly, not a
> single Justice in *Windsor *considered this virtually buried "argument"
> even worth discussing.
> Likewise, Kentucky ran the argument in its brief
> <> in
> the *Obergefell *set of cases (see p. 26) just a *bit *more aggressively
> than Clement did--promoting it to a single textual paragraph.  Again, no
> Justices thought it worthy of discussion; the majority, however, implicitly
> rejected it out of hand when it wrote:
> This dynamic also applies to same-sex marriage. It is
> now clear that the challenged laws burden the liberty of
> same-sex couples, and it must be further acknowledged
> that *they abridge central precepts of equality.* Here the
> marriage laws enforced by the respondents *are in essence*
> *unequal*: same-sex couples are denied all the benefits
> afforded to opposite-sex couples and are barred from exercising
> a fundamental right. Especially against a long
> history of disapproval of their relationships, this denial to
> same-sex couples of the right to marry works a grave and
> continuing harm. *The imposition of this disability on gays*
> *and lesbians serves to disrespect and subordinate them*.
> And the Equal Protection Clause, like the Due Process
> Clause, prohibits this unjustified infringement of the
> fundamental right to marry.
> The scholars' amicus brief in *Arlene's Flowers *does not even contend
> with these fairly important precedents.  Nor does it even discuss the
> statutory language of the Washington law, or its purpose, history, or
> judicial construction.  It's hard to imagine the amici think their
> statutory construction argument will find favor with any of the Justices of
> the Washington Supreme Court.  Reading the Washington law to cover this
> case is not "stretching" or "distension [sic]" of the statute, as the brief
> argues:  It's standard-issue fare.
> So what explains the brief?  Is there more to be said for it than what
> I've described?
> _______________________________________________
> To post, send message to
> To subscribe, unsubscribe, change options, or get password, see
> 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.
To post, send message to
To subscribe, unsubscribe, change options, or get password, see

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.

Reply via email to