July 2013 Bar Bulletin
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July 2013 Bar Bulletin

Right to Refuse Service Turns on Free Exercise Clause

By David Perez


What started as a routine flower sale has become the most high-profile civil rights suit that the state has seen in years. Attorney General Bob Ferguson has filed a lawsuit under the Consumer Protection Act against Barronelle Stutzman, a florist who owns Arlene's Flowers in Richland, for refusing to sell flowers to a gay couple for their upcoming wedding. Stutzman, who opposes same-sex marriage on religious grounds, said that she would not create the floral arrangements because of her Christian faith.

The Attorney General's Office (AGO) filed suit, alleging that Stutzman's decision to discriminate against the gay couple violates the Washington Law Against Discrimination (WLAD), which is a per se violation of the Consumer Protection Act. The AGO is asking the court to compel Stutzman to stop denying wedding-related services to gay and lesbian couples. She had previously sold flowers to the gay couple without complaint.

Stutzman's lawyers have now filed an answer and a counter-suit against the AGO, arguing that the State's attempt to force her to provide floral arrangements for same-sex weddings "would be contrary to her sincerely held religious beliefs." Based on that assertion, she argues that the State is violating her freedom of religion.

Stutzman's "religious freedom" defense, which is based on the First Amendment's Free Exercise Clause, isn't new. The same arguments are being used to justify denying photography services to gay couples in New Mexico, declining to host a same-sex wedding at a reception hall in Vermont, and refusing accommodations to a lesbian couple at a bed and breakfast in Hawaii.

In fact, recently proposed legislation sponsored by Sen. Sharon Brown (R-Kennewick) and 10 other Republican state senators, which would permit businesses like Arlene's to deny services to customers based on their "sincerely held religious beliefs," isn't new either. The Arizona House of Representatives passed a bill in May, which would allow any business to discriminate against LGBT individuals based on their religious objections to homosexuality.

But now a court must determine whether the AGO can use the CPA to target discrimination on the basis of sexual orientation.

The Rational Basis Test

In analyzing Stutzman's free exercise claim, the threshold questions that the court will ask are: (1) whether the law is neutral vis-à-vis religion, and (2) whether the law is "generally applicable." The neutrality inquiry focuses on the law's intent, asking whether its objective is to "infringe upon or restrict practices because of their religious motivation." The general applicability inquiry goes on to ask whether the law selectively burdens religious beliefs.

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