Supreme Court leaves florist—and other Christians—exposed

An end-of-the-term order from the Supreme Court crushed hopes by religious liberty advocates that the justices would soon address the conflict between LGBTQ-friendly public accommodation laws and business owners who follow their religious beliefs.

A final order list issued by the court on Friday denied review of Arlene’s Flowers v. Washington, which involved a Washington state florist, Barronelle Stutzman, who declined to create a custom floral arrangement celebrating the same-sex marriage of a long-time customer. Three justices—Samuel Alito, Clarence Thomas, and Neil Gorsuch—would have accepted the case, one short of the four justices required for the case to be reviewed.

For Stutzman, who has been at odds with state authorities since 2013, the ruling means she must pay a $1,000 fine and serve same-sex couples. A lower court could also order her to pay the state’s legal fees for the yearslong litigation. The high court’s inaction on the conflict between LGBT activism and religious liberty leaves questions unresolved and is sure to invite further litigation.

Stutzman’s latest—and likely final—setback came on her second trip to the U.S. Supreme Court. When she appealed an initial Washington Supreme Court ruling against her in February 2017, the justices sent her case back to the state’s high court, asking it to reconsider in light of Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, the justices ruled in favor of a Christian baker who declined to bake a custom cake for a same-sex wedding. In Stutzman’s case, the state Supreme Court dug in, reaffirming its ruling and leading to the second appeal.

The U.S. Supreme Court’s 2018 ruling in favor of baker Jack Phillips focused on the open hostility of Colorado officials to the religious convictions that led him to decline to design a cake for a same-sex wedding. Members of the Colorado Civil Rights Commission described Phillips’ beliefs as despicable and discriminatory during his case. The Washington Supreme Court ruled against Stutzman because it found no such anti-religious bias in her case. Other court rulings involving expanded public accommodation laws have cut more broadly—even as success has been mixed.

Some cases, like that of New York photographer Emilee Carpenter, are pre-enforcement challenges—meaning business owners challenge the offending law before the state comes after them. In others, like that of Oregon bakers Melissa and Aaron Klein, business owners are defending against a state that pursued them. A state fine of $135,000 forced the Kleins to shutter their bakery. The U.S. Supreme Court’s refusal to hear Stutzman’s appeal could embolden an Oregon appeals court to decide against the Kleins.

Religious liberty defenders hoped Stutzman’s case would give the Supreme Court an opportunity to overrule its much-criticized 1990 ruling in Employment Division v. Smith. Yet those hopes were dashed, much as they were with the court’s narrow ruling in Fulton v. City of Philadelphia in June, which upheld the ability of Catholic Social Services to continue to work with foster children. In Smith, the justices concluded that laws incidentally burdening religion—like the one affecting Stutzman—were not subject to strict judicial scrutiny so long as they were neutral and generally applicable.

The battle may be over for Stutzman, yet Alliance Defending Freedom counsel Kristen Waggoner, who represented her, said the larger fight will go on.

“A government that can crush someone like Barronelle … can use its power to crush any of us regardless of our political ideology or views on important issues like marriage,” Waggoner said. “We are confident that the Supreme Court will eventually join [other] courts in affirming the constitutionally protected freedom of creative professionals to live and work consistently with their most deeply held beliefs.”

Others have less confidence that conservative justices who could not unite on the rationale in Fulton or Stutzman’s case will vindicate religious liberty claims. Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, wrote in a Newsweek op-ed that the court is now is split three ways, revealing a fissure in the conservative majority: “Twice this term, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch warned that Justices Brett Kavanaugh and Amy Coney Barrett lack backbone.”