Washington court finds no free exercise right to ignore antidiscrimination law

In a unanimous en banc ruling issued yesterday, the Supreme Court of the State of Washington rejected a florist’s claim that state anti-discrimination statutes did not apply to her religion-based refusal to sell flowers for use in a same-sex wedding ceremony.

In the 59-page ruling (https://www.courts.wa.gov/opinions/pdf/916152.pdf), the court found that the owner of Arlene’s Flowers,  Baronnelle Stutzman, had acted in violation of the Washington Law Against Discrimination (WLAD) and had been legitimately cited and fined. The court ruled that the state action did not infringe on Stutzman’s rights under the U.S. Constitution to free speech and association and did not unconstitutionally burden her right to free exercise of religion.

The court used the rationale in the U.S. Supreme Court 1990 decision in Employment Division v. Smith to sidestep Stutzman’s claim that the state law infringed on her constitutional right to the free exercise of religion.

In Smith, the U.S. Supreme Court had found that it was no longer necessary to apply “strict scrutiny” to determine whether “neutral, generally applicable” laws that “incidentally burden” a person’s free exercise of religion. To apply more stringent “strict scrutiny,” the state would have to demonstrate that its statute satisfied “least restrictive means” test. The “least restrictive means” test applies if a person (1) has a sincere religious belief and (2) the exercise of that belief is substantially burdened by the challenged law. In that case, the law can only be enforced against the party if (3) it serves a compelling government interest and (4) is the least restrictive means of achieving that interest.

However, the Washington court agreed with the attorney general who had argued that “strict scrutiny” was limited to zoning laws, involving churches, and that the non-discrimination statute was a “neutral health and safety regulation” that created no substantial burden on free exercise of religion in a “commercial marketplace.”

Although Stutzman had described offering alternative accommodations, such as referral to other florists, the court rejected this approach and indicated that her business must provide services. The court held that public accommodations laws “serve a broader societal purpose” beyond guaranteeing access to goods and services, extending to “eradicating barriers to equal treatment of all citizens in the commercial marketplace.” The court stated that this purpose would be “fatally undermined”  if the court were “to carve out a patchwork of exceptions for ostensibly justified discrimination.”

At initial glance, it this decision may appear to directly contradict the U.S. Supreme Court’s 2014 determination in Burwell v. Hobby Lobby that provided that a large “closely held” corporation could be exempted from federal regulations that violated their religious beliefs. However, the Hobby Lobby decision was based on the federal Religious Freedom Restoration Act (RFRA) in which Congress had attempted to reverse the effects of Employment Division v. Smith by applying the strict scrutiny standard to free exercise of religion cases. But after the passage of RFRA in 1993, the Supreme Court ruled in 1997 in Boerne v. Flores that Congress could not pass a law that would impact state actions on free exercise. Thus the federal RFRA does not apply to the state of Washington, which is not among 21 states that have passed a state-level version of the Religious Freedom Restoration Act.

Even if Washington state had implemented a version of RFRA, the state supreme court ruled that Stutzman’s claim to free exercise would not have survived under its interpretation of a least restrictive means standard.

Attorneys from Stutzman indicate that they will appeal the decision to the U.S. Supreme Court.