State of Washington v. Arlene's Flowers: Washington Superior Court Rules in Favor of Same-Sex Couple

On February 18 in the case of Washington v. Arlene's Flowers Judge Alexander Eckstrom, Superior Court Judge for Benton County in the State of Washington, ruled in favor of a same-sex couple who sued a florist who refused to provide flowers for their wedding. The court upheld the enforcement of the state's non-discrimination law against the florist. The florist shop -- Arlene's Flowers -- had argued that it would violate the florist's religious beliefs to provide flowers for a same-sex wedding, and that it would be unconstitutional to enforce the non-discrimination law against the florist. Judge Eckstrom ruled that state law prohibiting discrimination on the basis of sexual orientation could be enforced under these circumstances.



The attorneys for the florist contended that the florist had the right, under the Constitution of the United States and the Constitution for the State of Washington, to refuse to provide flowers because the owner of the shop had a religious objection to same-sex marriage. Both of these arguments failed.

The United States Constitution protects the "free exercise" of religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof .... (U.S. Const, amend. 1)

The Washington Constitution protects religious freedom as well:

Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. (Wash. Const., art. I, sec. 11)

In the case of Employment Division v. Smith (1990) the United States Supreme Court ruled that if a state adopts and enforces a law of general application -- that is, a law that does not target religiously motivated conduct -- then the law is presumed constitutional even if it imposes a substantial burden on the exercise of a person's religion. Such a law is constitutional so long as it is rationally related to a legitimate state purpose. The Washington non-discrimination law generally applies to all businesses that are open to the public and is not directed at religion, and it serves a legitimate purpose. Accordingly, it doesn't violate the First Amendment to enforce this law against businesses like Arlene's Florists.

The Washington constitutional provision offers more protection to Freedom of Religion than the First Amendment does. The Washington Supreme Court has interpreted Article I, Section 11 to mean that if a state law imposes a substantial burden on the exercise of a person's religion, then the government has the burden of proving that the law is narrowly tailored to achieving a compelling governmental purpose. In effect, the Washington constitutional provision on Freedom of Religion has the same legal effect as the federal Religious Freedom Restoration Act has on federal law. RFRA was invoked in Burwell v. Hobby Lobby (2014) to mean that employers did not have to provide health insurance coverage for certain forms of birth control to their employees if the employers had a religious objection to those methods of birth control.

However, in this case the state court came to the opposite conclusion as the Supreme Court in Hobby Lobby. In that case the Supreme Court found that the federal law in question violated the Religious Freedom Restoration Act because the government could have achieved the same goal -- making birth control available to female employees free of charge -- by means of a law that would not have imposed a substantial burden on the religious liberty rights of their employers. In this case Judge Ecksrom ruled that there was no other feasible way to prohibit a business from discriminating on basis of sexual orientation other than to ban discrimination on the basis of sexual orientation. (p. 50)

Judge Eckstrom found that the Washington statute prohibiting discrimination on the basis of sexual orientation in trade and commerce is narrowly tailored to achieving a compelling governmental interest -- that is, ending discrimination by commercial enterprises on the basis of sexual orientation. In making this ruling Judge Eckstrom quoted language from the Supreme Court's opinion in Hobby Lobby:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. (p. 42, quoting Justice Alito's majority opinion in Hobby Lobby)

Judge Eckstom reasoned that if Arlene's Florists was entitled to rely upon Southern Baptist resolutions against same-sex marriage to justify refusing service to same-sex couples, another business would be justified in relying upon other biblical passages to justify racial discrimination:

the 'Curse of Canaan' would stand as equal justification for racial discrimination .... (p. 51)

Judge Eckstom concluded:

For over 135 years the Supreme Court of the United States has held that laws may prohibit religiously motivated action, as opposed to belief. In trade and commerce, and more particularly when seeking to prevent discrimination in public accommodations, the Courts have confirmed the power of the Legislative Branch to prohibit conduct it deems discriminatory, even where the motivation for that conduct is grounded in religious belief. The Washington Legislature properly invoked the police power of the State in drafting the WLAD, a violation of which is  per se violation of CPA in trade or commerce. Article I, Section 11 of the Washington State Constitution expressly states that religiously motivated conduct is limited by the police power of the state. In so doing, the Legislature drafted a law that does not violate either the United States Constitution or the Washington State Constitution. Ingersoll and Freed and the AG are entitled to rely upon these laws passed by the Legislature  of the State of Washington, and confirmed through the vote of its citizens, to bring their actions against the Defendants. (pp. 58-59)

Accordingly, the Superior Court entered judgment for the plaintiffs.