The Supreme Court Says: Sorry Felicia, You Can’t Turn the Gays Away
The final buzzer has sounded on the Supreme Court term, and Pride month is over. But on the day after the Court’s final release of opinions, the LGBTQ community got an unexpected surprise: The Supreme Court denied review in an eight-year-old case about a florist who wouldn’t furnish flowers for a same-sex wedding.
That case, Arlene’s Flowers v. Washington is now, finally, over, and the gay couple (and the state of Washington, which was enforcing its non-discrimination laws) has won. Coming not long after the Court also finally rewarded Gavin Grimm’s six-year quest to pee in a gender-appropriate restroom, the dismissal is another nice win for queer folks, even if it came two days late for Pride.
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From a distance, this may seem puzzling. Didn’t gay people just lose a major case at the Supreme Court two weeks ago?
Indeed, we did. On June 17, the Court held, unanimously, in Fulton v. City of Philadelphia, that Catholic foster care agencies can refuse to consider gay couples as foster parents. That loss still stings.
But wait a minute. Unanimously? Why did the Court’s three liberals join in an opinion denying equality to gay people?
Because, if you look more closely, Fulton was actually a very narrow decision, and its narrowness was, itself, a victory for LGBTQ people. Turns out, Philadelphia has a provision for exempting social service agencies from various legal requirements. Since they didn’t grant an exemption here—and, on the contrary, singled out the Catholic agency for an enforcement action—that action gets reviewed under a much stricter standard than if the law simply applied to everyone equally.
Now, Fulton didn’t have to come out this way. In fact, most observers (including me) thought that the Court would rule much more broadly, perhaps requiring that same kind of “strict scrutiny” any time a religious practice is affected by a neutral governmental decision. That would have been a body blow to civil rights law as we know it. But it didn’t happen—more on that in a moment—and the Court issued a very narrow ruling instead.
As it turns out, the basis for the Arlene’s Flowers case was similarly narrow—but right-wing interest groups, and in particular the Alliance Defending Freedom (ADF), have been lying about it for years.
That basis was the 2018 case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the Supreme Court allowed a Colorado baker to refuse to sell a wedding cake to a gay couple. Obviously, the facts are similar to Arlene’s Flowers. So why did the baker win but the florist lose?
Because, like Fulton, Masterpiece Cakeshop hung on a very slender thread. In that case, there were comments in the record from the Colorado Civil Rights Commission describing the baker’s religious beliefs as “irrational” and “offensive.” Whatever you make of the legal and cultural battles between conservative Christians and LGBTQ people, that statement is definitely not OK. Governmental agencies need to evaluate religious claims seriously and neutrally, not offer their benighted opinions as to their rationality or irrationality. So, the baker won.
That’s not how the ADF, Becket, and other right-wing activist lawyers spun it, however. In their press releases—and, to be fair, also those of some LGBTQ organizations seeking to raise money off the outrage—they depicted Masterpiece Cakeshop as announcing a broad exemption for any religious people who didn’t like gays. “Turn the Gays Away” is legal! You can refuse queer people service at your pizzeria!
I personally gnashed my teeth as mainstream media outlets parroted this narrative. Because, having followed the case for years and carefully read the opinion—which, like Fulton, had the support of liberals on the Court—I knew that actually the case was far narrower than that.
It didn’t say what the ADF said it said, and what many people seemed to believe: that it’s OK to turn away queer people if you have a religious reason. It only said something much, much narrower: that if a state agency is dismissive or biased against a religious claimant, they can’t proceed to enforce the law against them.
In Arlene’s Flowers, however, there were no such comments in the record. On the contrary, the Washington Supreme Court said, “We are confident that the courts resolved this dispute with tolerance.” The Washington state agencies enforced the law, period.
Of course, in court, the ADF tried their mightiest to allege all kinds of bias on the part of the state of Washington. But these allegations were flimsy at best. And, perhaps more importantly, they’re basically factual questions, not legal ones—meaning the Supreme Court is very unlikely to get involved in reviewing them. So the case was dismissed.
Now, had Fulton been the broad, terrible decision many of us worried about, then Arlene’s Flowers might well have been ripe for review by the Court. Suppose, for example, that Fulton had said that any religious claim has so-called “most favored nation” status over other claims, which was actually argued by ADF. Then, the florist in Arlene’s Flowers, Barronelle Stutzman, could say that God has forbidden her from providing flowers for a gay wedding, and that claim would trump the State of Washington’s argument that discriminating against gays violates civil rights law.
There were good reasons to suspect that was going to happen in Fulton. Justices Thomas, Alito, and Gorsuch have said many times that they believe the government impermissibly discriminates against religious actors. Justice Barrett had taken similar positions in her academic writing. And indeed, concurring in the opinion, Justices Kavanaugh and Barrett said that they both believed that a broader decision would be warranted someday.
But since the Fulton case could be resolved without doing so, they wrote, that day was not yet at hand.
As they did with Masterpiece Cakeshop, the ADF’s spin team tried to churn Fulton into another gigantic victory for persecuted Christians who merely want to practice their religion at the expense of the civil rights of others. But Fulton didn’t say that, Masterpiece Cakeshop didn’t say that, and so Arlene’s Flowers was dismissed. Bye, Barronelle.
Because the fact is, spin is not law. The Right can claim that an election was stolen, that antifa is hiding in your bathroom, and that trans people don’t exist. But that doesn’t make it so, and in this country, even conservative courts like the current Supreme Court are bound by facts and laws. And at least so far, you can’t turn gay people away from your crummy flower shop, even if you think God wants you to. Which, by the way, She does not.
Oh, and fun fact? The customers whom Ms. Stutzman turned away, Curt Freed and Robert Ingersoll, are still married, eight years after their wedding she refused to serve. I’m sure the flowers were fabulous.
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