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?


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