In an unusual legal maneuver, Attorney General Bob Ferguson filed a consumer protection lawsuit today against a florist in Richland, Washington, who last month refused to provide flower arrangements for a same-sex wedding because of her "relationship with Jesus."
As The Strangerreported at the time, Arlene's Flowers owner Barronelle Stutzman told Robert Ingersoll and Curt Freed that she refused to do business with them—or "participate in the wedding," as she called it—because she believed as a Christian "that marriage is between a man and a woman."
Filed in Benton County Superior Court, the lawsuit (.pdf) alleges that when Stutzman refused to provide goods or services on the basis of sexual orientation in a place of public accommodation, she was violating the state's anti-discrimination law and was, therefore, also violating laws designed to protect consumers. As a business that sells wedding flowers to opposite-sex couples, the AG's office argues, it must provide the same wedding services to gay couples.
The case is set to emerge as the first major test of anti-discrimination protections since Washington State voters legalized same-sex marriage last fall. It is also a rare—if not unprecedented—instance of the government initiating a discrimination suit. With the florist's lawyers apparently itching for a fight, the case seems poised to reach the state supreme court, or even federal courts, as a test of conservative legal defenses in the name of religious liberty and moral conscience.
Ferguson acknowledged in an interview with The Stranger today that filing the lawsuit this way is unprecedented; anti-discrimination suits must be brought by the Washington State Human Rights Commission or the aggrieved party. But as of this week, neither had taken action. Ferguson says he has legal authority to file the suit as a consumer protection case because the alleged discrimination occurred "in a consumer setting."
"Right now she's getting away with it, and that sends the wrong message to all the businesses around the state," said Ferguson.
The AG's office had offered to avoid a lawsuit by giving Stutzman an opportunity to sign a contract that, in essence, would agree to "not engage" in the discriminatory practice in the future, according to a letter sent on March 21 (.pdf).
But instead of agreeing to the terms, attorneys for Stutzman fired back their own missive (.pdf) to state lawyers yesterday that appeared to lay out the crux of their legal defense. Stutzman claimed that "discrimination is not the issue," but rather that she is entitled to exercise her religious conscience and that arranging flowers is an act of personal expression, and as such, any restriction on how and where she sells flowers arrangements infringes on her First Amendment right to free speech.
"Although gay 'marriage' may be legal in Washington for the time being, the concept offends the conscious [sic] of Ms. Stutzman and many others in Washington," says the letter from attorney JD Bristol, who is representing Ms. Stutzman.
"Florists are universally engaged in the art of designing floral arrangements as an act of expression," Stutzman's lawyers continue. "Different floral arrangements are created for different events and sentiments, depending on a variety of factors. The florist's job is to create an arrangement that expresses the sentiment of the florist's clients. It is creative expression. If the law requires a florist create an expression of appreciation for gay 'marriage,' or any other matter that offends the conscious of the florist, it is compelled speech in violation of the First Amendment. The state cannot require a florist to express appreciation for, or acceptance of gay 'marriage' any more than the state can require a musician to write a song about it, or an artist to paint a picture."
Stuzman's lawyers said that any lawsuit will be met with "an immediate challenge in federal court," and they have conferred with "a number of national nonprofit organizations that are ready for a fight."
They also contend that Ferguson has no legal authority to file the lawsuit. Ferguson, of course, disagrees. He is asking the court to bar Stutzman from future discrimination and pay $2,000 for any additional violations. He says, "She runs a business, and you can't discriminate when running your business, so it is appropriate for the attorney general to bring a consumer protection action."
Still, Ferguson acknowledges, "We may be in for a lengthy legal battle."