More Good News On The “Forced Speech’ Front

By DEACON MIKE MANNO, JD

Last week we reported some good news on the religious freedom/free speech front; this week the good news continues with a successful case from Arizona and a hopeful resolution for a florist in Washington.
First to the Arizona case where two artists faced criminal prosecution, six months in jail, and a $2,500 fine for each day of noncompliance in anticipation of their refusal to design and create custom wedding invitations for same-sex couples. (See coverage of this in last week’s Wanderer, p. 6A, and also in Dexter Duggan’s front-page column.)
The artists, Joanna Duka and Breanna Koski, operate a business, Brush & Nib Studio. Among other services, the partners offer clients artistic wedding invitations, as well as other original artworks suitable for home decorating. The City of Phoenix, however, has a public accommodation law that prohibits discrimination on the basis of sexual orientation. Under threat of enforcement, Duka and Koski, with the help of the Alliance Defending Freedom, took the city to court claiming a violation of their religious freedom and free speech rights.
Forcing them to create celebratory messages for same-sex weddings amounts to “forced speech” and violates their religious principles, claimed the artists. Their first efforts proved fruitless when the trial court held for the city and the appeals court affirmed. However, the Arizona Supreme Court held differently.
Distinguishing between conduct, which can be controlled by law, and speech, which cannot, the court held that: “Duka and Koski’s beliefs about same-sex marriage may seem old-fashioned, or even offensive to some. But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone….Given this reality, the government must not be allowed to force persons to express a message contrary to their deepest convictions.”
It further stated, “[A]n individual has autonomy over his or her speech and thus may not be forced to speak a message he or she does not wish to say.” And to counter the argument that Brush & Nib is a for-profit business, the court stated, “[A] business does not forfeit the protections of the First Amendment because it sells its speech for a profit.”
Rejecting the city’s argument that the creation of custom wedding invitations was conduct, not speech, the court held that “the custom wedding invitations, and the creation of those invitations constitute pure speech entitled to full First Amendment protection.”
“Ultimately, the city’s analysis is based on the flawed assumption that Plaintiffs’ custom wedding invitations are fungible products, like a hamburger or a pair of shoes. They are not. Plaintiffs do not sell ‘identical’ invitations to anyone; every custom invitation is different and unique,” the court wrote.
Citing a long line of cases, including the videographer case reported last week’s Wanderer — in which the Eighth Circuit U.S. Court of Appeals held for a couple wishing to do wedding videos only for opposite-sex couples against a Minnesota statue similar to Phoenix’s ordinance — the court reaffirmed the rule that speech was not a public accommodation and could not be forced on an unwilling participant.
“Freedom of speech and religion requires tolerance of different beliefs and points of view. In a diverse, pluralistic society such as ours, tolerance of another’s beliefs and point of view is indispensable to the survival and growth of our democracy,” the court wrote.
The dissenting judges, however, took a different track, suggesting this was not about speech, or the content of the speech, but was about the conduct of the business. “This case does not concern the content of the made-to-order wedding products, but instead the identity of the customer and end users. Such refusal constitutes discrimination based on sexual orientation,” the dissenters claimed.
“Even if the ordinance burdens speech, it is a constitutionally permissible burden because the ordinance is content neutral, serves a compelling governmental interest, and there is no less restrictive alternative,” the dissent, in a very scary statement, wrote, suggesting that the purpose of the law — the ends — justifies the means used.
That, of course, was disputed by the majority. “The dissent…incorrectly asserts that Plaintiffs seek to decline products or services based merely on Plaintiffs disfavoring, or disapproving of certain customers. But these arguments mistake Plaintiffs’ position and are not supported by the record. . . .
“Here, Plaintiffs’ objection is based on neither a customer’s sexual orientation nor the sexual conduct that defines certain customers as a class. Plaintiffs’ will make custom artwork for any customer, regardless of their sexual orientation, but will not, regardless of the customer, make custom wedding invitations celebrating a same-sex marriage ceremony. Thus, although Plaintiffs’ refusal may primarily impact same-sex couples, their decision is protected because it is not based on a customer’s sexual orientation.”
Similar arguments are now making their way back to the U.S. Supreme Court. Just before the Arizona Supreme Court announced its decision above, a Washington State florist, Barronelle Stutzman, filed a petition for certiorari with the court seeking to reverse an adverse state court decision against her for failing to sell custom floral arrangements for a same-sex wedding.
This case has been percolating in the system now for several years. Barronelle ran a business, Arlene’s Flowers, and through that business began a friendship and business relationship with a gay man. Over the years she had sold the man custom-arranged flowers for many events. However, when the man wanted custom arrangements for his marriage to another man, Barronelle drew the line. She would sell him the fresh, cut flowers, but would not participate in the wedding ceremony by arranging flowers at the venue and overseeing the decorations.
The case went to the Supreme Court once before. The court at the time had just decided Masterpiece Cakeshop v. Colorado, which was a similar case only involving wedding cakes, in favor of the baker against the state. In light of that case, the Supreme Court accepted Arlene’s Flowers’ case, vacated the Washington State decision, and remanded the case back to the State Supreme Court to reconsider in light of the Masterpiece Cakeshop ruling.
The state court did review the case but did not change its opinion. “We have fully reviewed the record….We now hold that the answer to the Supreme Court’s question is no: the adjudicatory bodies that considered this case did not act with religious animus when they ruled that the florist and her corporation violated the Washington Law Against Discrimination (WLAD) by declining to sell wedding flowers to a gay couple.”
The Washington court held the opposite view on conduct versus speech that the Arizona court and the Eighth Circuit found. As to speech, the Washington court wrote, “Stutzman’s floral arrangements do not meet this definition. Certainly, she argues that she intends to communicate a message through her floral arrangements. But the major contest is whether Stutzman’s intended communication actually communicated something to the public at large — whether her conduct was ‘inherently expressive.’ And her actions in creating floral arrangements for wedding ceremonies do not satisfy that standard.”
In her petition to the top court, she writes, “In Masterpiece, this Court said that religious beliefs affirming marriage as the union of a man and a woman ‘are protected views and in some instances protected forms of expression’ and that the government must treat those beliefs with ‘tolerance and respect.’ Despite this call for civility, governments across the country have continued to slur, shun, punish, and threaten to imprison those whose faith compels them to honor their religious beliefs about marriage.”
The petition then goes on to list several of the more prominent cases that are similar to Arlene’s Flowers, including that of the videographers mentioned last week.
The petition also notes that she is an active participant in the wedding ceremonies for which she produces her floral creations, including on-site preparations and decorating.
She writes to the court: “This Court’s review is needed to ensure that people of faith have the freedom to live according to their beliefs about marriage, and to bar governments from mandating which sacred events merit celebration….[The] issue of compelled-participation in sacred ceremonies presents a critical constitutional question that warrants this Court’s intervention. . . .
“The Washington Supreme Court’s primary answer to this free-exercise concern was that Barronelle is not paid to sing or clap at weddings. But she is paid to decorate the venue with her art and attend the ceremony to assist the wedding party and ensure her arrangements are beautiful throughout.”
Remember, the court has not decided to take the case yet. There will be briefings on the petition, and if the court will review the case, there will be more briefings on the substance of the case. We’ll have to wait to see what the court will do; my guess is that it will accept the case. If it does, stand by — it’ll be a big one and make a school cafeteria food fight look tame by comparison.
You can reach Mike at: DeaconMike@q.com