A Rose by Another Name Still Merits First Amendment Protection

ILYA SHAPIRO and PATRICK MORAN, CATO INSTITUTE

Barronelle Stutzman owns and operates Arlene’s Flowers, where she designs floral arrangements for a variety of occasions, including weddings. Mrs. Stutzman is also a practicing Christian; she believes that marriage is a spiritual union between a man and a woman and will not create floral arrangements for same-sex ceremonies. For this reason, when long-time clients Robert Ingersoll and Curt Freed asked Mrs. Stutzman to create floral arrangements for their wedding, she respectfully declined and referred them to several nearby florists.

To be clear, Mrs. Stutzman serves everyone. She gladly created Valentine’s Day and anniversary floral arrangements for Messrs. Ingersoll and Freed for nearly a decade before this litigation, all the while knowing they were a same-sex couple. She just has a sincere religious objection to creating her expressive floral works for same-sex weddings.

Nevertheless Ingersoll and Freed sued Stutzman, which suit was later consolidated with another one brought by the state of Washington. The state trial court ruled against Arlene’s Flowers and the state supreme court affirmed, holding that floral design did not constitute First Amendment-protected artistic expression. Stutzman took her case to the U.S. Supreme Court, which held it pending its decision in the factually similar Masterpiece Cakeshop case last year. The Supreme Court then remanded Arlene’s Flowers v. Washington back to the Washington Supreme Court for reconsideration. As it has in previous stages of this litigation, Cato has filed an amicus brief supporting Arlene’s Flowers, urging the Washington Supreme Court to revise its earlier ruling and hold that floral design is constitutionally protected expression.

The plaintiffs here simply fail to recognize the difference between discrimination based on sexual orientation and refusing to create messages that violate one’s conscience, which is an important First Amendment right that the Supreme Court has repeatedly affirmed. Floristry, like painting, dance, or music, is art, and art is speech protected by the First Amendment. The Court declared in Wooley v. Maynard (1977) that the government can’t force people to speak, even when the message is simply a state motto, and the means of speaking is just displaying the motto on one’s license plate. The First Amendment protects “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say. Forcing a florist to create a unique piece of art similarly intrudes on that freedom of mind.

Just last year, the U.S. Supreme Court in NIFLA v. Becerra and Janus v. AFSCME reaffirmed its commitment to striking down laws that compel speech. Justice Clarence Thomas’s concurrence in Masterpiece Cakeshop also illustrates the unique danger of forcing someone to speak against his or her conscience.

While Wooley provides important constitutional protection, it also offers an important limiting principle to that protection: Although florists, writers, singers, actors, painters, and others who create speech must have the right to decide which commissions to take and which to reject, this right does not apply to others who do not engage in protected speech. The court can rule in favor of Arlene’s Flowers on First Amendment grounds without blocking the enforcement of antidiscrimi­na­tion law against denials of service by caterers, hotels, limousine drivers, and the like.

In sum, the government should not be allowed to persecute expressive professionals for declining to create the government’s preferred messages.

 


Used with permission. Cato Institute / CC BY-NC-SA 4.0


Ilya Shapiro, is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues. Shapiro is the co-author of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution (2014), has testified before Congress and state legislatures and, as coordinator of Cato’s amicus brief program, filed more than 200 “friend of the court” briefs in the Supreme Court. He lectures regularly on behalf of the Federalist Society, is a member of the Legal Studies Institute’s board of visitors at The Fund for American Studies, was an inaugural Washington Fellow at the National Review Institute and a Lincoln Fellow at the Claremont Institute, and has been an adjunct professor at the George Washington University Law School. In 2015 National Law Journal named him to its list of 40 “rising stars” in the legal community.

Patrick Moran is a legal associate in the Cato Institute’s Center for Constitutional Studies. Patrick earned his J.D. from the University of Florida. During law school, he interned at Cato, served on the executive board of the Federalist Society, and was a member of the Christian Legal Society. Patrick holds a B.A. in political science from the University at Albany, SUNY, where he served as president of the College Republicans.