Artistic Expression, Content Regulation / Censorship
Indibility Creative Pvt Ltd v. Govt of West Bengal
Closed Mixed Outcome
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The Supreme Court of Washington affirmed the lower court’s ruling that the Washington Law Against Discrimination (“WLAD”) did not violate the Defendants’ rights to freedom of speech or freedom of religious exercise under the First Amendment to the U.S. Constitution or Article 1 of the Washington Constitution.
The Defendant florist appealed rulings by a trial court that in refusing to sell flowers for a same-sex wedding she violated the State’s anti-discrimination and consumer protection laws.
The Supreme Court reasoned that the sale of floral arrangements was not expressive conduct because it didn’t communicate anything to the public at large and was therefore not protected by the First Amendment. Furthermore, the Court held that WLAD was a neutral, generally applicable law subject to a rational basis review because it provided a blanket exemption for religious organizations from actions based on its services. It was not subject to the higher level of strict scrutiny that applies if a law prohibits certain actions because of their religious nature or permit and, even if it did, the florist’s claims would still fail. Therefore, her constitutional right to religious free exercise under the First Amendment was not violated.
It is expected that this case will be appealed to the U.S. Supreme Court.
Appellant Barronelle Stutzman owns and operates Arlene’s Flowers Inc. Respondent, Robert Ingersoll, a long-time customer of Arlene’s Flowers went to the florist to request flowers for his upcoming wedding to longtime partner Curt Freed, his fellow Respondent. Stutzman refused to sell flowers to Ingersoll because he was marrying a man. Specifically, she told him that it was against her religious beliefs to provide the flowers but directed him to other florists that might be able to help. Stutzman did and continued to provide flowers to gay and lesbian patrons but specifically refused this transaction because the flowers were to be used in a marriage ceremony which was against Stutzman’s religious beliefs that “biblically marriage is between a man and a woman” and using her artistic skills to create custom floral arrangements for a same-sex wedding would be “to intimately participate in” such a ceremony. Interestingly, Stutzman did not consider that selling flowers for a Muslim or atheistic wedding would be tantamount to endorsing those systems of belief.
Ingersoll was noticeably upset after this incident and posted a statement about it on his Facebook page, which was widely circulated and eventually caught the attention of several media outlets. Due to all of this increased attention and the florist’s refusal to sell them flowers the couple decided to jettison their planned wedding extravaganza and settled instead for a modest ceremony which took place in July 2013.
The Attorney General became aware of the incident and sent the Defendant a cease and desist letter and asked her to provide an assurance that she would not continue to discriminate. Stutzman refused. The Attorney General filed a complaint seeking injunctive and other relief under the State’s anti-discrimination act, WLAD, and its Consumer Protection Act that bars discrimination against a protected class. Ingersoll and Freed also brought a private lawsuit against the florist which the trial judge consolidated with the State’s case. The trial court granted summary judgment in favor of the Plaintiffs in both cases awarding a permanent injunction as well as damages and legal fees. In granting judgment the trial court issued two statutory and five constitutional rulings. Stutzman appealed all seven rulings to the Supreme Court of Washington.
The Supreme Court of Washington affirmed the trial court’s rulings. The decision was issued en banc.
The Court reviewed each trial court ruling de novo. First, it addressed the statutory rulings that Stutzman and Arlene’s Flowers violated WLAD’s prohibition on discrimination in public accommodations. These were affirmed and did not directly implicate freedom of expression.
Next, the Court turned to the constitutional challenges which comprised the bulk of their decision on freedom of expression. Stutzman raised several constitutional challenges and argued firstly that the trial court had erred in finding her right to freedom of speech was not violated. Specifically, she contended that her floral arrangements were artistic expressions protected by the state and federal constitutions and that by forcing her to provide flowers for same-sex weddings the state was compelling her to speak in favor of same-sex marriages. The Court dismissed this argument, finding that the conduct complained of was not “expression” protected under the First Amendment. It said that floral arrangements didn’t meet the “inherently expressive” test, because they do not actually communicate anything to the public (in contrast to numerous Supreme Court decisions finding expressive conduct such as burning a flag or wearing a jacket that says “F**k the draft”). The Court also found that the Washington Constitution did not provide any greater protections for Stutzman and affirmed the trial court’s ruling that there was no violation of the freedom of speech guarantees under the state or federal constitution.
The Court then considered Stutzman’s alleged violation of the right to religious free exercise clause under the First Amendment, first noting that “laws that burden religion are subject to two different levels of scrutiny under the free exercise clause. Neutral, generally applicable laws burdening religion are subject to rational basis review (test used to determine a law’s constitutionality and whether it is related to a legitimate government interest), while laws that discriminate against some or all religions (or regulate conduct because it is undertaken for religious reasons) are subject to the higher level of strict scrutiny”. Pg. 35. Stutzman argued that the strict scrutiny test applied here because WLAD is not a neutral or generally applicable law. Specifically, she argued, WLAD allows religious organizations to refuse marriage services, but does not permit her to refuse certain types of services; and because it exempts certain businesses such as those that employ less than eight people, it is not generally applicable. The Court disagreed, finding that for a law to be subject to strict scrutiny under the free exercise clause, the law must prohibit certain actions because of their religious nature or permit. Finding the Act subject to rational basis review, the Court held that it met the standard of being rationally related to the legitimate interest of preventing discrimination. The Court then considered the free exercise argument under the Washington State Constitution. The Court declined to make a determination on whether the Washington State Constitution provided a heightened level of scrutiny for these types of claims because the Court found that even if it did, Stutzman’s claims still fail under a strict scrutiny analysis. The public accommodation provision of the anti-discrimination act is a neutral regulation that serves to provide citizens with equal access, “eradicating barriers to the equal treatment of all citizens in the commercial marketplace,” and therefore satisfies the requirements of strict scrutiny. Pg. 52.
The Court also found that Stutzman’s right to freedom of association was not violated, because there was no precedent in which a commercial enterprise, as opposed to a private members’ club had successfully claimed freedom of association protection under the First Amendment. Nor was Stutzman entitled to protection under the “hybrid rights” doctrine which applies the strict scrutiny test if a law burdens both religious free exercise and another fundamental right such as speech or association. In this case the law only burdens religious free exercise and in any event the Court had already found that WLAD survives strict scrutiny.
Finally, the Court dismissed Stutzman’s argument that she was not liable for personally violating the Consumer Protection Act (CPA), applicable because the WLAD provides that an act of public accommodation discrimination is an “unfair practice” and therefore a violation of the CPA. The Court said that she was personally liable with the corporation, Arlene’s Flowers, because individuals may be liable for CPA violations if they personally participate in the conduct, which Stutzman did here.
The Appellants’ lawyer has stated their intention to appeal.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case, like that of Masterpiece Cakeshop, presents a mixed outcome in the arena of freedom of speech and expression. Although Stutzman would argue that her right to freedom of expression and free exercise is violated, as she is forced to condone conduct she does not support, the state must strike a balance between her rights and protecting the rights of same-sex couples. Here, the Court held that Ingersoll’s right to be free from discrimination when entering a commercial enterprise open to the public, overrode Stutzman’s desire to not condone same-sex marriages.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
As a decision by the Supreme Court of Washington, this decision binds all state court proceedings in Washington.
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