Supreme Court Misses Critical Opportunity to Offer Guidance in Clash of SOGI Laws and Religious Liberty

July 23, 2021

On July 2, the U.S. Supreme Court declined to grant certiorari in the case of Arlene’s Flowers v. Washington. The Court’s failure to hear this case is deeply troubling. This is especially true in light of its narrow decisions in two recent cases—Masterpiece Cakeshop v. Colorado Civil Rights Division and Fulton v. City of Philadelphia—both involving allegations of religiously motivated discrimination on the basis of “sexual orientation and gender identity” (SOGI). In 2019, RFI’s Islam and Religious Freedom Action Team joined an amicus brief in Arlene’s Flowers in support of the appellant, Barronelle Stutzman.

Stutzman has developed her craft of making custom floral arrangements for more than 40 years while working at Arlene’s Flowers, a business based in Richland, Washington that she purchased from her mother in 1996. In 2013, the Washington State attorney general sued Stutzman after she declined to provide floral services for the wedding of a same-sex couple, Robert Ingersoll and Curt Freed, due to her religious convictions about marriage. Over the course of nine years, Stutzman made more than $4,500 worth of floral arrangements for Ingersoll and Freed, knowing their relationship. Ingersoll described his relationship with Stutzman as “warm and friendly,” and Freed said Ingersoll and Stutzman were “close.” (see Brief of Appellants at 1, 4, and 12)

Notwithstanding her previous business with Ingersoll and Freed, and other customers who identified as LGBTQ, the state attorney general alleged that her refusal to be hired for their wedding was unlawful and violated the state’s prohibition on “sexual orientation” discrimination. The state attorney general disregarded the fact that it was the wedding, and what it represented for Stutzman, and not any attribute of the customers, that led her to forgo providing her services to them.

When her case went to court, Stutzman argued that the state, in seeking to force her to provide flowers in this scenario, violated her religious beliefs and subjected her to an unconstitutional form of “compelled speech.” She initially lost in trial court and again before the Washington State Supreme Court. Stutzman then petitioned the U.S. Supreme Court to hear her case, and in June 2018 the High Court ordered the state supreme court to review Stutzman’s case yet again, this time in light of its decision in Masterpiece. Unsurprisingly, the Washington State Supreme Court did not uncover any anti-religious animus in the judicial reasoning of the state’s court system, thereby rendering the Masterpiece precedent moot in this matter. In June 2019 the state supreme court ruled against Stutzman a second time, and she petitioned the U.S. Supreme Court to take her case again.

In February 2020, the U.S. Supreme Court agreed to hear the Fulton case. As a result, the Court delayed its decision on certiorari for Arlene’s Flowers for 14 months. The day after the Court decided Fulton in June 2021, Alliance Defending Freedom, which had represented Stutzman throughout her legal process, asked the Court to grant the petition to hear her case. The Court refused and issued a simple denial on July 2, 2021.

The narrowly tailored rulings in Masterpiece and Fulton make this denial particularly disappointing. Even if the Court has an obligation to rule on the narrowest grounds available in order to resolve the matter before it, Masterpiece and Fulton offer only limited guidance for navigating the persistent legal conflict between SOGI laws and religious liberty. By turning away Arlene’s Flowers the Court missed a critical opportunity to offer additional, much-needed direction.  

Moving beyond the courts, SOGI nondiscrimination laws, like that in effect in Washington state, are fundamentally flawed and should be opposed.

First, proponents of these laws tend to obscure their actual scope until they are enforced. If interpreted more expansively, as they almost always are, these laws severely undermine religious freedom when the expressions and conduct associated with the underlying SOGI identities are contrary to a religious community’s beliefs and yet are themselves placed within the scope of these laws’ protections. 

Proponents of SOGI ideology often strive to advance their understandings through force of law and intense cultural pressure. Many religious people and institutions, however, continue to affirm the view of human nature and sexual morality that their faith traditions have long espoused and thus have become targets of such efforts. All too often, SOGI laws are manifestly not about protecting persons but rather advancing these emerging views of sex, gender, and human nature by punishing dissenters. Arlene’s Flowers is a case-in-point. Recall that Stutzman served all customers, without exception, and it was only in the context of a same-sex wedding that she objected to offering her custom flower services. If protecting people and not advancing an ideology ultimately grounded SOGI efforts, Stutzman’s case would never have made it into a courtroom.

Second, SOGI laws communicate a pernicious message that the sexual morality historically taught by Judaism, Christianity, and Islam is bigoted and akin to racism. Status-based racial discrimination, which makes an irrational and baseless distinction between human persons based solely on skin color, bears no resemblance to the view that sexual intimacy should occur only within the bounds of a lifelong, monogamous, and exclusive relationship between husband and wife. While many disagree vehemently with this sexual ethic, substantial evidence accumulated over the past several decades suggests that society would be decidedly better off if more people adhered to it. At the very least, even the most strident libertines should be able to recognize that drawing a parallel between traditional sexual morality and ideologies of racial superiority is indefensible in the extreme.

Third and finally, there is a prudential point that must consistently be made when considering the merits of SOGI laws like the one that ensnared Barronelle Stutzman, and which are in effect in numerous state and local jurisdictions and is proposed nationally in the Equality Act. Though nondiscrimination laws have sometimes proven to be necessary, they represent a major government intrusion into the private lives of citizens and institutions. They are only warranted to correct major systemic injustices like slavery, Jim Crow segregation, or enduring patterns of anti-Semitism. Let us forthrightly acknowledge that injustices have historically been committed against people embracing an LGBTQ identity, but these injustices are neither analogous to racism and anti-Semitism nor systemically present in modern America. In many respects, quite the opposite is the case today.

It is regrettable that the Court chose not to take up Stutzman’s case, but the clash between SOGI laws and free exercise of religion is not going away anytime soon. The justices will eventually have to engage this controversy directly.

Nathan A. Berkeley is RFI’s Communications Director and Research Coordinator