I just read the amicus brief in the Arlene's Flowers case. What struck me, in addition to the points already raised, was that the brief did not distinguish between religious opposition to the wedding and religious opposition to the marriage.
Oftentimes, religious opposition to same-sex weddings is portrayed as limited in scope because it only pertains to an event that the vendor considers to be a religious sacrament, namely the wedding itself. And that happens at a discrete moment in time. Opposition to the marriage could be more impactful because it could lead people like Stutzman to refuse to provide flowers for the duration of the marriage—in contexts such as anniversaries or Valentine’s Day. (There is a further distinction between religious opposition to weddings or marriages, on the one hand, and objections to same-sex relationships, on the other. The brief suggests that Stutzman is not opposed to the latter. But not all wedding vendors draw the line in that place. The court in Elane Photography cites testimony that the vendors there were also opposed to depicting same-sex relationships.) The brief is ambiguous on whether the opposition is to weddings or marriages. Usually it says that Stutzman is opposed to the marriage, but occasionally it reports that she refuses to promote the “celebration of the marriage” or the event. I don’t think the distinction matters to the legal outcome, but it does matter for the policy argument that the impact on third parties — here, same-sex couples — will be minimal because it will be limited to a moment in time. Nothing in the logic of the brief reassures the court that Stutzman’s opposition will not persist for the duration of the marriage. Moreover, religious opposition to supporting a marriage could have implications outside wedding vendors. Think of religious adoption agencies, marriage retreat centers, or providers of married student housing. Nelson NELSON TEBBE Professor of Law Brooklyn Law School<https://www.brooklaw.edu/faculty/directory/facultymember/biography.aspx?id=nelson.tebbe> Visiting Professor of Law Cornell Law School<http://www.lawschool.cornell.edu/faculty/bio.cfm?id=520> Articles available on SSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=343134> Religious Freedom in an Egalitarian Age<https://www.amazon.com/Religious-Freedom-Egalitarian-Nelson-Tebbe/dp/0674971434> (Harvard University Press, forthcoming Jan. 2017) On Oct 12, 2016, at 5:55 PM, James Oleske <jole...@lclark.edu<mailto:jole...@lclark.edu>> wrote: Agreed on all fronts, Marty. I would just add this regarding the observation that Stutzman "purportedly doesn't care about what Robert Ingersoll's sexual orientation is, or whether he has sex with Curt Freed." Whatever may the source of opposition to same-sex marriage in specific cases, the available data would indicate that the vast majority of people who oppose legalization of same-sex marriage also believe "gay and lesbian relations" more broadly are "morally wrong." See http://www.gallup.com/poll/1651/gay-lesbian-rights.aspx (May 2016 results showing 37% opposition to same-sex marriage and 37% belief that gay and lesbian relations are morally wrong). See also Justice Scalia in Lawrence, stating that "'preserving the traditional institution of marriage' is just a kinder way of describing the State’s moral disapproval of same-sex couples." There may, of course, be exceptions, just as there may be instances of people who oppose interracial or interfaith marriage without believing in the superiority or inferiority of particular races or religion. But if exemptions from the civil rights laws are to be given for such individuals, I don't think the way to do it is to interpret [racial discrimination][religious discrimination][sexual-orientation discrimination] as not including refusals of service to [interracial][interfaith][same-sex] couples. - Jim On Wed, Oct 12, 2016 at 2:18 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: Thanks, Jim. I'd be very surprised if the Washington Supreme Court decides otherwise. But even apart from the absence of any prospect of success, what's so striking about the scholars' amicus brief is that it doesn't even try to contend with this Colorado decision, or with most of the Supreme Court and other cases cited therein -- let alone offer any analysis of the Washington statute at issue. Instead, it ultimately falls back on the argument that Arlene's Flowers doesn't discriminate on the basis of sexual orientation because it would also refuse to make arrangements for two heterosexual men who chose to marry one another--an argument that doesn't warrant much more of a response than the one paragraph (para. 41) the Colorado court gives it, citing Bray. It's also worth noting that the basic argument in the scholars' brief is that this is a form of sex discrimination rather than sexual orientation discrimination (Stutzman purportedly doesn't care about what Robert Ingersoll's sexual orientation is, or whether he has sex with Curt Freed, but "only" about the fact that Freed is the same sex as Ingersoll--if Ingersoll were a woman, she'd sell him flower arrangements for the marriage to Freed). But in that case, its coverage under the act would be even more self-evident, wouldn't it? On Wed, Oct 12, 2016 at 4:55 PM, James Oleske <jole...@lclark.edu<mailto:jole...@lclark.edu>> wrote: 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: https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/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): http://www.adfmedia.org/files/MasterpieceCertPetition.pdf 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 29. - Jim On Mon, Oct 10, 2016 at 7:40 AM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: 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 anydistinction, 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<http://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Home/News/Press_Releases/2015/Arlene%27s%20Flowers%20summary%20judgment.pdf> 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<http://mirrorofjustice.blogs.com/files/smith-brief.pdf> 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<http://sblog.s3.amazonaws.com/wp-content/uploads/2013/01/BLAG-merits-brief-1-22-131.pdf> 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<http://sblog.s3.amazonaws.com/wp-content/uploads/2015/03/14-574_-bs.pdf> 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 Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. 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