A Supreme Court end-of-term order dashed hopes of religious liberty advocates that judges would soon settle the conflict between LGBTQ-friendly public housing laws and business owners who follow their religious beliefs.
A final order list released by the court on Friday denied consideration of Arlene’s Flowers v. Washington, which involved Washington state florist Barronelle Stutzman who declined to create a custom flower arrangement celebrating the same-sex marriage of a long-time client. Three judges – Samuel Alito, Clarence Thomas and Neil Gorsuch – are said to have accepted the case, one less than the four judges required for the case to be reconsidered.
For Stutzman, who has been at odds with state officials since 2013, the ruling means she must pay a $ 1,000 fine and serve same-sex couples. A lower court could also order him to pay the state’s legal fees for the litigation that has gone on for years. The High Court’s inaction on the conflict between LGBT activism and religious freedom leaves questions unanswered and is sure to invite further litigation.
Stutzman’s latest – and possibly last – setback came on his second trip to the United States Supreme Court. When she appealed an initial Washington Supreme Court ruling against her in February 2017, justices returned her case to the state’s High Court, asking it to reconsider in light of Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, the judges ruled in favor of a Christian baker who refused to bake a personalized cake for a same-sex marriage. In Stutzman’s case, the state Supreme Court inquired, reaffirming its decision and resulting in the second appeal.
The 2018 U.S. Supreme Court ruling in favor of baker Jack Phillips focused on open hostility by Colorado officials to religious beliefs that led him to refuse to design a cake for a same-sex marriage. Members of the Colorado Civil Rights Commission have described Phillips’ beliefs as contemptible and discriminatory during his case. The Washington Supreme Court ruled against Stutzman because it found no anti-religious bias in his case. Other court rulings involving expanded public housing laws have cut back more broadly, although success has been mixed.
Some cases, like that of New York photographer Emilee Carpenter, are pre-law enforcement challenges, meaning business owners challenge the offending law before the state steps in. In others, like that of Oregon bakers Melissa and Aaron Klein, business owners are defending themselves against a state that has sued them. A fine of $ 135,000 forced the Kleins to close their bakery. The U.S. Supreme Court’s refusal to hear Stutzman’s appeal could embolden an Oregon appeals court to rule against the Kleins.
Religious freedom advocates hoped the Stutzman case would give the Supreme Court an opportunity to overturn its much-criticized 1990 ruling in Division of employment c. Smith. Yet those hopes were dashed, just as they were with the court’s restrictive ruling in Fulton v. City of philadelphia in June, which confirmed the ability of Catholic Social Services to continue working with foster children. In Black-smith, the judges concluded that laws incidentally affecting religion, such as that affecting Stutzman, were not subject to strict judicial review as long as they were neutral and generally enforceable.
The battle may be over for Stutzman, but Alliance Defending Freedom lawyer Kristen Wagoner, who represented her, said the bigger fight will continue.
“A government that can crush someone like Barronelle… can use its power to crush any of us, regardless of our political ideology or our views on important issues like marriage,” Wagoner said. “We are convinced that the Supreme Court will eventually join [other] courts by affirming the constitutionally protected freedom of creative professionals to live and work in accordance with their deepest beliefs.
Others have less confidence than the conservative judges who could not unite on the justification of Fulton or Stutzman’s case will justify claims of religious freedom. Josh Blackman, professor of constitutional law at the South Texas College of Law Houston, wrote in a News week op-ed that the court is now divided in three ways, revealing a rift in the Conservative majority: “Twice this term, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch have warned that Justices Brett Kavanaugh and Amy Coney Barrett are running out of spine.”