Florist Case Sent Back for Rehearing

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More. Tyler O’Neil at PJ Media writes:

It appears Stutzman will have to show what Phillips showed — that anti-Christian bias was fundamental to the original ruling against her. This will prove more difficult than in Phillips’ case, and the odds are good that the Washington Supreme Court will reissue its old ruling, again prompting a Supreme Court appeal.

Perhaps in 2020 or 2021, the Supreme Court will finally defend free speech and religious freedom, explaining that a Christian florist’s decision to opt out of serving a same-sex wedding is fundamentally different from refusing to serve all LGBT people. Only at that point will justice truly have been served.

10 Comments for “Florist Case Sent Back for Rehearing”

  1. posted by Tom Scharbach on

    The right decision. If there was religious animus against the florist and/or double standards in the ruling, and there are indications both occurred, then the florist should not be punished.

    Let us be very clear about this. The “indications” — and it is a stretch to call them that — were first raised in a Supplemental Brief filed after the Masterpiece decision:

    Without receiving a complaint from Robert, Washington state officials filed a lawsuit against Barronelle not just in her professional capacity but also in her personal capacity. Id. at 11-12. And in ruling against Barronelle, the state trial court— at the urging of Washington’s attorney general — compared Barronelle to a racist “owner of a 7-Eleven store” who had “a policy” of refusing “to serve any black[]” customers. Pet. App. 107a–109a & 108a n.16 (emphasis added). The state, in short, has treated Barronelle with neither tolerance nor respect.

    This is very thin soup, indeed, and I would caution you not to read something into the record which does not appear to be there, just for the sake of bootstrapping.

    Nonetheless, I think that the Court was correct in remanding, because the Court, bound as it is by the record, has no way of determining whether or not there was animus or “taint”.

    The Washington Supreme Court, bound as it was to the record in the case (which did not present evidence of bias or animus) did not expressly address the question of whether or not the lower court proceedings were “tainted”, and the Court cannot go beyond the Washington Supreme Court decision without more.

    I’m not sure what happens next, although it would seem, because the record is silent on the issue, that the Washington Supreme Court may remand the case back to the trial court for fundings of fact on that issue. In any event, I don’t think that Arlene’s Flowers will be ready to be heard next Term.

    With respect to what the Court did today (grant, vacate, remand) Amy Howe posted a simple, plain-English explanation of today’s action in Arlene’s Flowers on SCOTUSblog:

    Three weeks ago, the justices threw out a ruling against a Colorado baker who had refused on religious grounds to make a custom wedding cake for a same-sex couple. By a vote of 7-2, the justices ruled that proceedings before the Colorado administrative agency that considered the baker’s case were unfairly tainted by hostility to religion.

    Shortly after issuing their decision in the Colorado case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the justices considered the case of Barronelle Stutzman, a Washington state florist who, like the Colorado baker, declined to provide her services – this time, original flower arrangements – to a same-sex couple for their wedding. After the state courts rejected her argument that requiring her to design floral arrangements for same-sex weddings would violate her First Amendment rights to free speech and the free exercise of her religion, Stutzman went to the Supreme Court, asking them to review that ruling. The justices put Stutzman’s appeal on hold until they ruled on the Masterpiece decision, and today they sent her case back to the lower courts so that (as in Masterpiece) they can consider Stutzman’s assertion that she too was the victim of religious hostility. The order means that Stutzman will have another chance to fight the lower court’s ruling, which levied fees and penalties on Stutzman and ordered her to provide the same services to same-sex couples that she provides to opposite-sex couples.

    The justices will almost certainly have to tackle the question presented by Stutzman’s case soon, but they apparently do not intend to do it next fall.

    As yet undetermined is what the Court will do with Sweetcakes when the cert petition for that case comes before the Court next fall. Sweetcakes was decided after Masterpiece and expressly considered the ruling, and that distinguishes Sweetcakes from Arlene’s Flowers.

    Given the Court’s apparent reluctance to decide the issue now, it may well GVR (grant, vacate, remand) that case as well, but it will be interesting to see what grounds the Court might have for that decision. We will just have to see what happens.

  2. posted by David Bauler on

    Hmm

  3. posted by Tom Scharbach on

    It appears Stutzman will have to show what Phillips showed — that anti-Christian bias was fundamental to the original ruling against her.

    Yup, although I would quietly point out that religions other than Christianity exist in our country, so the sentence should probably refer to “anti-religious” bias. That’s the language of Masterpiece, and that’s the language that should be used. Religion is not coterminus with Christianity, even in this benighted “Christian Country”.

    But that question aside, every case of this kind going forward will need a finding of fact that the decision was not tainted by anti-religious bias. That’s the “neutral forum” principle, long established, applied to religious objection to public accommodations laws.

    Perhaps in 2020 or 2021, the Supreme Court will finally defend free speech and religious freedom, explaining that a Christian florist’s decision to opt out of serving a same-sex wedding is fundamentally different from refusing to serve all LGBT people.

    That’s a false dichotomy.

    Here’s the sentence restated to address the real issue: “Perhaps in 2020 or 2021, the Supreme Court will finally defend free speech and religious freedom, explaining that a Christian florist’s decision to opt out of serving a same-sex wedding is fundamentally different from refusing to opt out of serving an interracial wedding or an interfaith wedding or a Wiccan wedding.”

    That’s that rub. The Court will have to find a way to explain why a Christian florist can opt out of one wedding but not the others. It seems to me that it will be almost impossible for the Court to decide that religious objections to same-sex marriage are favored over religious objections to inter-racial marriage, inter-religious marriages, inter-denominational marriages, remarriages after divorce, and so on.

    I doubt that the Court will address that issue in the initial decision 2-3 years down the pike. But lower courts will almost immediately have to deal with cases brought by religious objectors to other forms of marriage, and eventually one of those cases will make its way to the Court. So, unless the Court has its eyes wide shut, the question will be part of the deliberations.

    • posted by Jorge on

      That’s that rub. The Court will have to find a way to explain why a Christian florist can opt out of one wedding but not the others. It seems to me that it will be almost impossible for the Court to decide that religious objections to same-sex marriage are favored over religious objections to inter-racial marriage, inter-religious marriages, inter-denominational marriages, remarriages after divorce, and so on.

      I fail to see how it’s the Court’s job to explain a hypothetical of which no evidence has been presented even exists.

    • posted by Tom Scharbach on

      I fail to see how it’s the Court’s job to explain a hypothetical of which no evidence has been presented even exists.

      It isn’t the Court’s job to explain hypothetical situations — the Court only decides actual cases and controversies. That’s why I said “I doubt that the Court will address that issue in the initial decision …”

      Nonetheless, the Court — and the individual Justices — are well aware of precedent, the way in which one ruling inevitably leads to another as additional, similar cases come before the Court.

      As an example, read Justice Scalia’s dissent in Lawrence, in which he predicted that the reasoning and holding in Lawrence would lead, inevitably and more or less in a straight line, to the Court’s ruling in Obergefell.

      The Justices are not morons. When considering the religious objection to same-sex marriage in Arelene’s Flowers or Sweetcakes, the Justices will be well aware that their decision (whatever it is) is going to extend to religious objection to other forms of marriage. The cases on interracial marriage, interfaith marriages and so on will inevitably follow, more or less in a straight line, a decision on religious objection to same-sex marriage.

      That’s a different scenario than the one you are positing.

      The issue is going to arise long before a case gets to the Court, of course. A case raised with respect to religious objection to interracial marriage, for example, will be first heard by a District Court, and then appealed to a Circuit Court. Both courts are going to be confronted with the question “Can we distinguish religious objection to same-sex marriage from religious objection to interracial marriage, and how? Does the Court’s ruling with respect to religious objection to same-sex marriage control our consideration/decision with respect to religious objection to interracial marriage?”

      That’s all I’m suggesting — saying, actually — and when the question hits the courts, it won’t be hypothetical.

  4. posted by Jorge on

    “In the Court’s Masterpiece Cakeshop ruling, it condemned those one-sided, discriminatory applications of the law against people of faith.”

    That was a concurring opinion.

  5. posted by Matthew on

    Christians who advocate discrimination against gays are soon going to find themselves on the receiving end. Muslims, too.

  6. posted by David Bauler on

    Beyond the important land of cake and flowers, the U.S. Supreme Court has UPHELD the President’s ban on Muslims.

    To all LGBT Muslims you are now going to find it that much harder to flee violence and hatred. This ban has huge implications for LGBT immigrants, but homocons and the M.S.P. regressive right don’t want to deal with it.

    • posted by Matthew on

      I’d rather be a homocon than an enabler of male genital mutilation like anyone who refuses to JUST SAY GAY and stop acknowledging that vile acronym that exists for no other reason than to promote gay erasure and hetero male usurpation of female spaces.

  7. posted by JohnInCA on

    Seeing as I just saw news about Kennedy retiring, I suspect the time of punting on these cases is nearing it’s end.

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