Cato files an amicus brief backing a Richland, Wash. florist’s right not to say it with flowers [Ilya Shapiro and Jayme Weber, brief in State of Washington v. Arlene’s Flowers and Barronelle Stutzman, earlier]
Cato files an amicus brief backing a Richland, Wash. florist’s right not to say it with flowers [Ilya Shapiro and Jayme Weber, brief in State of Washington v. Arlene’s Flowers and Barronelle Stutzman, earlier]
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The lawsuit is against the business corporation and its owner, not Barronelle in her role as an employee of the LLC. Of course any employee can request religious accommodation to not work on this particular job just as the Muslim employees could request to not do the alcoholic beverage deliveries in the Star Transport case. We know there were other employees at Arlene’s Flowers LLC that would have gladly filled this request – Barronelle need use not a whit of her ‘creative talents’ to get this order fufilled, she could take the day of the wedding off. The only obligation is for the business to obey the law regarding how customers and their civil rights must be respected.
And if the business owner feels they can’t sell something as the law requires concerning the civil rights of the customers they are not required to sell that something at all.
What the business owner can’t do is make an invitation to the public and then require the responding customers to pass a religious test like this to actually buy the service from the business. Every customer has a federal and constitutional right to NOT share the business owner’s beliefs about marriage and weddings and still have their civil right to have ‘full enjoyment of all’ services that business has offered to the public regardless of their creed, sexes, or sexual orientation.
These clumsy attempts to create a ‘right’ to religious discrimination by businesses is dangerous – if this Pandora’s box is opened there will be no way to close it. If a business can religiously discriminate against customers why not employees? If it can discriminate why can’t it show religious preference to both classes?
Either the business sells wedding services to the public as the law requires or the business owner shouldn’t be offering them to the public at all as Arlene’s Flowers is currently NOT offering. The Jewish owned deli is free to not sell pork if their conscience won’t allow it, but by that decision they are also forgoing all potential pork profits. Ditto for those who’s ‘conscience’ won’t let them sell wedding services to customers while respecting their civil rights as required by law.
The Washington state constitution specifically says that liberty of conscience doesn’t excuse acting without regard for the law or the rights of others. The civil rights of the customer will be upheld, the business will pay a fine, and then decide if they want to legally sell wedding floral services or not sell them at all.
So you believe that it is acceptable for an employee not to be forced by the employer to act against the employee’s moral conscience, but it is acceptable for the state to demand that the owner act against their moral conscience?
The business owner wouldn’t be offering something for sale that went against their moral conscience – if they were moral. But if they do offer something to the public all its members can assume they are making a moral and legal offer in compliance with the constitutional principles and laws of the state.
If they only want to sell to people of certain creeds, sexes, or sexual orientation they would do so as a private club or non-profit organization legally – find the ‘right’ people first and then invite just them to be customers. What they can’t do is invite the public with its civil rights and then refuse some of them without regard for them. It is the business owner’s need to discriminate, its up to them to do so legally.
In this case, Arlene’s Flowers LLC hasn’t offered wedding floral services for almost 3 years and the owner can just pay the minimal fine for it’s one transgression and then continue running the business legally and in keeping with their ‘moral conscience’ by continuing that policy.
Of course your position is still the idea that the government can force people to enter into a private contract with individuals. I am pretty sure there is no such clause anywhere in the Constitution granting the government that power. And frankly, I don’t care too much about so called “laws” that act against the rights of the individual. We tried that once and it was called “slavery.” Laws allowed people to be forced to work in those days.
I am a graphics artist by trade with a vocation of woodcarving. I have designed hundreds, if not thousands of flyers and invitations in my career.
Please tell me why I have to design flyers that are against my moral code or stop selling flyers altogether? That seems to be your solution. Please tell me why I should have to design a “gay pride event” flyer or a flyer for an event for a Westboro Baptist Church anti gay protest at military funeral if both events are against my moral conscience or give up a bulk of my business?
As we know the art of creation is considered speech for the purposes of the Constitution, please tell me why the government can force me to speak in some areas?
If some government flunky came up to you and said “you have to say this or else you can never speak again,” you’d object. So would the country.
Yet here you have no reservations about making someone create or speak. You are happy that their words and creative process are subject to the whims and force of the government.
Even business owners have rights and your desire to trample those rights with the backing of the government doesn’t make it right or Constitutional.
Like the Cato brief you are confusing business with a person. This is about the legal obligations of Arlene’s Flowers LLC and its owner’s responsibility to run it legally. We know Arlene’s Flowers LLC had at least one employee, one Eryn Hugo by name, that would have gladly taken care of this order from counter to completion. That alone takes out all 6 of the arguments of the brief since no individual would have been required to use their creative talent against their conscience.
As to your case, you seem to be running a business with no employees other than yourself, a very different issue, one that is not that of Arlene’s Flowers LLC. Of course just having a business policy that at the discretion of the owner the business can 3rd party contract out any request resolves all the issues you brought up. And the examples you brought up are about the actual content of the service, not those asking for the service, e.g. if a representative of the Westburo Baptist Church came to you and asked for a brochure for a bake sale that’s most reactionary content was their name and address and that the cakes would be red velvet, you might be violating the law. But again, that is a different issue from that of Arlene’s Flowers LLC where the customer was rejected before any quality of the actual work being requested was discussed.
The only one remaining is the idea that someone is being ‘forced’ to enter a private contract. That isn’t true, by inviting the public to do business it has willingly associated with them knowing full well that how that business relationship proceeds is regulated by law, including the restrictions that a customer can not be rejected because of their civil rights which the owner in this case proudly proclaims was done. The Arlene’s Flowers LLC case is no more being ‘forced’ than the restaurant owner is being ‘forced’ to serve blacks at the lunch counter, or the hotel owner being ‘forced’ to rent them a room. Your argument would invalidate all civil rights laws which have been found to be constitutional. I’m not here to talk about the constitutionality of civil rights laws – that would be up to you to prove the aren’t and beyond the scope of this forum.
What I will point out is even in this case no one was ‘forced’ to enter a private contract – the fact is the business did not enter the contract but was fined for breaking the law by refusing to contract for an illegal reason, as they would be for each time they broke that law.
Again, the Washington state constitution and its statutes declaring what is a civil right are clear, a business owner can’t make a public offer and then require the customer’s to pass a religious test like this to purchase the advertised goods or services. Every single person in Washington has a right to NOT share Southern Baptist beliefs about weddings and marriages and still buy publicly advertised wedding services, they have for almost 70 years.
Like the Cato brief you are confusing business with a person.
And here I thought that for the purposes of speech, a corporation or business was a person in the legal sense. Did I miss the SCOTUS overturning their decision on that?
As for Eryn Hugo, you cannot live with that argument in the long run because what you are saying is the actions of employees that are against the wishes of the employer have no affect on the employer’s accountability at all. So if a delivery driver speeds is high and gets into an accident, under your proposal only employee – and never the employer – would be accountable. You cannot claim that the employee may act as they want in one instance but not the other.
Furthermore, if Ms. Hugo wants to make flowers for causes with which she agrees, she is free to do so. The answer to the speech of Arlene’s Flowers is more speech, not less as you believe.
As for my case, it is not about the content, it is about the group. I will not lend my talents or my employees’ talents to support ideas and causes with which I disagree. Arlene’s Flower chose not to support or be associated with an event or cause with which they disagreed. Does not the Constitution say I have the right to associate with whom I choose? Does it not say that I have the right to my religious beliefs and my speech?
It is true that companies would be forced to enter into a contract because in the case of Arlene’s Flowers (or in my case) there is an agreement to the services being supplied. It is not the same as a lunch counter because the offer for the lunch has already been made. (Menu: hamburger, $1.00) The person is only accepting the offer. If someone walked into Arlene’s Flowers and said “I want that bouquet of flowers,” they should be able to buy it as they are accepting the offer that is already there just as they can accept my premade carvings that I sell at a given price. That is not the same thing as a person walking into a store looking to negotiate for the services of a company where the is no offer or agreement of compensation but whose services include the creative design and speech of the people working there.
As to your point that no one was forced to enter a contract, you cannot be serious. That is similar to saying “you don’t have to pay taxes!” The government will fine you, jail you, take your property, etc, but you still don’t have to pay taxes. The business was told they had to create something or else get out of the business which you support.
I realize that you think and believe that there was a public offer in the case, but there wasn’t one anymore than any other artist has a public offer for advertising what they do. What you are saying is that because I advertise I am a graphic artist, I must associate, promote and do business with every idea and group, no matter how much those groups and ideas offend me.
You solution to my ending my freedoms is to pay an ever increasing fine, or get out of business. My refusal to do creative work for businesses with which I disagree has no infringement upon their rights at all.
I didn’t realize that I gave up all of my rights under the Constitution in order to exercise the God given / natural right to earn a living. I didn’t realize that your alleged rights to force me to do labor was not a violation of the Constitution.
We are discussing the Cato brief here I thought. Since the ‘personal talent’ of Barronelle isn’t at play it is doesn’t apply.
As to all the other red herrings, again, if the business can’t sell something to the public as the law requires it wouldn’t be offering it to the public in the first place. By the owner offering wedding floral services it can be assumed they are doing so respecting the customer’s civil rights which include ‘full enjoyment of all’ services regardless of their creed (even ones that think God blesses marriages regardless of the sexes involved, their sexes, or their sexual orientation. The idea that a business can discriminate against a ‘group’ is the exact opposite of what civil rights are about.
And of course you know that the food at a lunch counter has not already been made, it is customer ordered by the customer – as protected as making floral arrangements if either is to the point it justifies ignoring the rights to the customer.
How did Justice Scalia put it, there is a right to religious conscience, not a right to any particular job. If a business owner won’t sell things to the public as the public as decided they must then 1) invite members of a private club or as a non-profit to do so legally or 2) don’t invite the public to buy them at all. Why do you ignore the legal solutions available to those with a need to discriminate towards people’s civil rights?
And no one is forcing you to do anything – you are the one with the need to discriminate, its up to you to figure out a way to do so legally. The public, through completely legal and constitutional processes have said that there are qualities that are considered civil rights and cannot be used as justification for rescinding an invitation of sale. Deal with it.
I am sorry that you feel that the talent of people doesn’t matter. It does. The government forcing people to use that talent against their moral conscience is contrary to Constitution and ethics.
I have no idea why you keep bringing up the idea of “selling something within the law.” Once again, slaves were sold within law.
I am not surprised that you missed the point of the lunch counter argument. At the lunch counter, the first part of a contract is made – the offer and terms. Once that offer is out there, if a customer accepts the offer, the business should not be able to refuse the sale as they are the ones making the offer.
That is not the same thing as demanding a business sign a contract to provide special services or goods. When someone comes in for wedding flowers, there is a negotiation, and then the offer is made. There is not offer on the table initially. So despite your protestations to the contrary, the government is forcing people and businesses to sign a contract.
You are correct that there is no right to a job. There is a right to create and work for oneself.
What did Thomas Jefferson say?
“A wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.”
“I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.”
It is patently false that the government is not forcing people to do things. Your answer to David C. shows a terrible ignorance of the word and meaning “force.” Under your definition, you would say that when a being robbed by a guy with a gun, you aren’t being forced to give up your goods. After all, you can refuse and give up your life.
…..cannot be used as justification for rescinding an invitation of sale.
There is no invitation of sale when dealing with special order flowers. That’s the point.
The fact that you think an advertisement is the same thing as an ‘invitation of sale.” An advertisement in the law is an “invitation to bargain.”
The clash of rights is always a tough call, Governments have the duty to take the path of least resistance when there is a clash. Those seeking specially designed flowers are not harmed in any way. There are other outlets and other designers. At the same time, forcing someone to do work which is contrary to their moral beliefs is a violation of the most personal and intimate of human rights.
Just because you disagree with the morals and rights of others doesn’t give you the right or ability to force your beliefs onto someone. It is always amazing to me that those seeking to end (non) discrimination always seek to do it at the expense of the freedoms and rights of others.
Deal with that.
And since at no time has the state Attorney General even suggested that the business owner must use their personal ‘artistic talent’ against their conscience your argument falls apart. Baronelle Stutzman is being sued because she is the business owner, not in her role as an employee. There were other employees at Arlene’s Flowers LLC that would have gladly used their artistic talent on this order but where told not to do so on this an any future similar order, in contradiction to law, the business’s own written non-discrimination policy, and oddly in contradiction to the ‘freedom of artistic expression’ this brief tries to establish.
And I’m not the first to use the word ‘forced’ oddly. No one has required Barronelle to use her ‘artistic talent’, the AG hasn’t even asked her to. So if everyone, including the Cato Institute will stop abusing the word ‘force’ so will I.
And your quote of government is spot on. All civil rights legislation in Washington state has been confirmed by a vote of the people, (the result of having a ridiculously easy citizen initiative process) and so civil rights legislation is the public deciding for themselves how invitations of public sales should be regulated and proceed.
“Just because you disagree with the morals and rights of others doesn’t give you the right or ability to force your beliefs onto someone.”
Ironically, that’s exactly what Barronelle tried to do. There is no right to religious discrimination in Washington state – every customer has a right to ‘full enjoyment of all services’ the business offers to the public and they can’t be require to pass a religious test to do so. Every single Washingtonian customer has a civil right to NOT share the Southern Baptists beliefs about weddings and marriages of the business owner and still accept the invitation to do business.
Obviously the customer had their own beliefs about marriage and weddings and the owner knew they couldn’t discriminate against those that didn’t share theirs – they haven’t been able to for many decades.
Fortunately the ADF has submitted their own brief and it is one hot mess. They make the same mistake of acting like Barronelle is being ‘forced’ to create something herself – she isn’t and hasn’t been asked to by the suit – only to, as the business owner, to operate the business legally. They actually try and sell this isasa case of religious discrimination by the owner disregarding the right of the customer to their own creed and still have “full enjoyment of all services” offered to the public and the state constitution that says such liberty of conscience doesn’t excuse acting without regard for the rights of others, in this case the customer’s own right to religious liberty.
The obvious solution that so many avoid is don’t offer the public something you are not willing to legally sell. If Barronelle can only sell wedding floral arrangement to certain people she can spin that off as a private club or non-profit. But offers to the public that require them to pass a religious test to actually buy? Sorry – that’s just never going to happen in Washington state.
The AG doesn’t have to suggest that the owner use their artistic talent. As the law is written now, they must. The owner cannot force the employees to go against their moral conscience so the only person left is the owner. Furthermore, the law doesn’t speak anything to what employees must do – it only speaks to what the business and the employer must do. Your assertion that Barronelle did not have to do anything is factually wrong.
It seems clear that you have never worked in a creative environment but I can tell you that no creative work goes out of a shop or studio without the owner’s approval. It just doesn’t happen. Not only that, if the item doesn’t meet the approval of the client, it is not the employee that will be the subject of complaints and potential lawsuits, but the business and the owner. For you to claim that the owner of a creative enterprise does not use their creative talents on everything and especially on special orders is an opinion based on ignorance. It is factually wrong.
As to the word “forced,” you are the only one using the word incorrectly as it is understood in common, legal and dictionary usage.
And your quote of government is spot on.
Thank you. It is a shame that you read that quote to be a confirmation of increased role of the government in the lives of people rather than what was – a condemnation of the government stepping on the rights of people to make a living. Frankly, I don’t care what the people of Washington think. The people of the South (and to some extent the North) thought slavery was a good thing and even codified it in law. Just because words on a paper say it is acceptable to violate the rights of individuals does not make it so. In this case, you seem happy to say that people must violate their rights of religious and moral conscience in order to be slaves of the state. That’s unacceptable to most people.
Barronelle did not force her beliefs on anyone. She was not the one saying “you must support or take part in our marriage ceremony.” Barronelle’s non-participation in the ceremony does not mean the parties cannot get married. She is not going to run into a church, chapel or setting and demand that the wedding ceremony not take place. If that were the case, you would be correct that she was forcing her beliefs on others. As it is, it is the state and the two people forcing Barronelle to bow down and act against her moral conscience and beliefs. Any other conclusion is illogical and not supported by the facts.
Contrary to your assertion, the obvious solution is to not require people to speak in support of causes and events they to not support. That would protect the rights of all. But you aren’t interested in the rights of all. You are only interested in the rights of certain groups at the expense of other groups. It is you who are advocating and practicing discrimination against people of different religious and morals than you hold.
Finally, we are at the point where further discussion will not yield any positive results. You keep repeating the same points that have been beaten down by me and others. We are done. I will neither respond nor read anymore comments from you on this subject, a position I am sure Mr Olson is glad to see.
Best of luck to you.
That’s like saying stop signs are voluntary because you know a guy who ran one and got fined. Give me a break. And just like the guy running stop signs, the penalty would fairly quickly be more than a mere fine if it happened repeatedly.
Making that comparison just shows how different the two situations are.
The restaurant and hotel owners ARE being forced, as is the florist. But one is a case of food or shelter needed in the short term, and the other involves a luxury planned well in advance. And one is a case of discrimination based on an unchangeable physical characteristic, and the other is a case of discrimination based on behavior and NOT merely their sexual orientation. And one applies at all times, and one only applies to the actual event (not person) they think is immoral.
There’s a difference between refusing to serve white people and refusing to serve KKK members, and there’s a difference between refusing to serve KKK members and refusing to serve a KKK rally. There’s also a difference between refusing someone decorative flowers for an event 6 months away and refusing them food or shelter they need today. There’s ALSO a difference between being forced to sell something setting on your shelf to an event you disapprove of, and being forced to not only create the item from scratch, but actually ATTEND the event (to do touch-ups, as the judge ordered they’d have to do.)
Is the business going to able to pass along the costs for this third party contract, even if it’s more than what the business normally charges? If a suitable third party is so easily found, then there’s no reason why the customers can’t find it (but in this case, the florist was willing to refer them to another florist, making the search easy.) And it’s a little ironic that your solution to mandating a contract appears to be mandating ANOTHER contract.
What about the argument that they aren’t really discriminating against the customers, they’re discriminating against the wedding? After all, the only objection is to the wedding, not to selling flowers to gay people in general, and they wouldn’t have sold the flowers if the straight best man had come to the counter instead of the gay couple. You’re confusing the wedding with the people. No?
You could argue that the business is legally incorporated and the wedding is not. But would the law leave the business alone if they never incorporated? No, of course not, as evidenced by the fact that the owner is personally named in the lawsuit. So the incorporated status is a red herring.
Anything you do to a wedding, you do to the people getting married. And anything you do to a business, incorporated or not, you do to the owners.
And stop signs are voluntary – everyone has a right to disobey the law and pay an alternative price other than compliance. That’s common sense. Same with parking illegally – you get fined. its not being ‘forced’ anymore than a bank robber is being ‘forced’ to have deposited money before they withdraw it.
As to your trying to qualify rights, they either exist or they don’t. Either the business owners run their business legally or they don’t. They know they can’t require someone to share their creed to take them up on their invitation of sale, and yes acts closely associated with civil rights qualities are also protected – the old ‘rules against yarmulkes is a rule against Jews.’ Ditto for a rule against weddings celebrating same sex couples is a rule against creed, sex, or sexual orientation – take your pick. So no confusion, just yours in not understanding how civil rights laws work.
And the business owner is named in the lawsuit because they caused the business to operate in a fraudulent manner by ordering the employees to act contrary to the law and rescind the invitation of sale based on a civil right class. That’s why the owner lost their protection from the LLC, a business that is only operating fraudulently because of the instructions of the owner can’t be used as an asset liability shield according to Washington state consumer protection laws.
And all the customer did was take the business up on their presumptively legal invitation to buy wedding floral services. They had no reason to expect the business owner to cause the business to operate illegally.
And nothing was done to the business I can see – it offered wedding floral services to the public knowing full well that they couldn’t refuse a customer because of their creed, sexes, or sexual orientation, that they have a right to ‘full enjoyment of all services’ offered to the public. if they couldn’t do that they would’ have made the invitation to the public in the first place.
As the Washington state constitution (and many other states since 1777) explicitly says liberty of conscience doesn’t excuse acts without regard for ethics, the law, or the rights of others. Every single Washingtonian has a right to NOT share the beliefs of the business owner, a right to legally act on their own rights, and still accept the invitation to do business as civil rights require. A Jewish deli can’t require their customers to keep their meats and dairy separate, a wedding floral service can’t require a customer to obey the Southern Baptist creed regarding weddings and marriages.
Either the business sells wedding floral arrangements to the public respecting the customer’s civil rights or they will be fined. If the business does so solely because of the dictates of the owner, then they expose themselves to liability.
‘conscience’ won’t let them offer the service to the public legally, then don’t offer it to the public at all. The need to discriminate is theirs, its up to them to do so legally.
You’ve got a very loose definition of “fraud” there. “Illegal” and “fraudulent” are not similes. If I run a stop sign and hit a car, I might get sued, but nobody is going to sue me for “fraud” because they expected I would follow the law and stop. There was no agreement to provide flowers based merely on the existence of the business – for all the couple knew, the florist was booked for that day anyway. And the couple suffered no monetary loss.
Their business was older than any notion that they had to serve a gay wedding – gay weddings weren’t even legal in the state a few months before this happened. Depending on when the business opened, they may have been unthinkable.
First of all, saying it’s a discrimination against creed is just ridiculous. They are not being discriminated against because they merely approve of gay marriage. The business would be turning away half their customers if that was the case. And that wasn’t even alleged in the lawsuit.
Ditto to claim that it’s discrimination based on sex… it’s not like the business turns away all men.
As for it being a proxy for discrimination based on sexual orientation, the lawsuit says this:
“In fact, Mr. Freed and Mr. Ingersoll estimate that they have spent thousands of dollars at Arlene’s Flowers. Among other purchases, they frequently bought flowers for each other for birthdays, anniversaries, and Valentine’s Days. They have also purchased flowers for family members and friends, and recently for their housewarming party. ”
The florist served these particular people many times, knowing that they were gay. They aren’t being discriminated against because they are gay, and the refusal to serve the gay wedding is not intended to be a proxy for discrimination against gays.
It’s up to the STATE to craft its laws legally and in conformance with the First Amendment. To quote Justice Blackmun,
My definition of fraud is the same one the AG used to justify his lawsuit and the court agreed – offering a service to the public with no intention of dealing as the law requires with that offer is fraud. Nothing loose about it.
And it is you who seems to be playing loose with terms – weddings aren’t legal or illegal, they are a kind of party after a marriage and people can religiously marry anyone or anything they want. Nuns all marry Jesus in an actual marriage ceremony – no law is broken. I attended my first gay wedding in Washington state in the late 1970’s. This has nothing to do with the civil contract of marriage, there is no indication the business has ever required a civil contract be involved in weddings they supported before.
And since creed includes all acts closely related with the belief yes it does – a same sex wedding is just as much part of a creed as being against them might be, can’t allow one without the other. And as you probably do know the discrimination doesn’t have to be consistent, just the reason for the discrimination – they try and wiggle out that they think one of the sexes is the wrong one that’s sex discrimination, and obviously the sexes involved in a marriage and its wedding party are closely associated with sexual orientation as yarmulke and Jews. The law is ‘full enjoyment of all services’ not ‘some’, not ‘most’. Using your rationale the black man could be turned away from the lunch counter since he could be seated in the dining room, or he could rent the hotel room but not be allowed to use the pool, two cites two real world examples of illegal discrimination just like Barronelle’s.
And the owner has complete religious liberty, they are not required to offer the public anything they can’t in good conscience sell legally to them. If they are hellbent on discriminating, there are even two business models they can use to do so – private club and as a targeted non-profit. Both require they find the people that do want to serve first and then make just them the offer of sale.
But make a general offer to the public and then discriminate against some of the responding customers because they don’t share religious beliefs they have a constitutional right NOT to share? Sorry, unconstitutional and illegal in Washington state.
Simpler Oshtur – you will conform with State approved thinking or you will be punished and/or ostracized.
It’s called totalitarianism.