Help me frame the argument against Arlene's Flowers

November 15, 2016 11:04 AM

Heard on NPR that the Washington Supreme Court is hearing the case against Arlene's Flowers disputing their right to refuse to beflower a same sex wedding on religious grounds. I know where I stand on this issue, but I am having real trouble playing it out logically.

So, my moral compass points to supporting equality for all people regardless of who they love, pray to, dress like, etc. I am instinctively against allowing businesses to discriminate against anyone for silly, unjust reasons. I believe that Arlene should take the contract to provide flowers for the wedding. But should she really be forced to?

Should Neil Young be forced to play at Trumps inauguration? Of course not. Trump is an individual and not a protected class.

Should a Jewish graphic designer be forced to accept a contract to design the next Bacon is Good For You campaign? No, I don't think so. First of all, nobody should be forced to do work they don't want to do. Secondly, I think it's reasonable for an observant Jew to refuse to glorify bacon on religious grounds.

So, why should I want to force Arlene to do the flowers for this wedding that violates her religious ethics? I am really struggling here because I know (at least I think I do) what's right, but I am having a hard time backing up my belief with logic.

posted by bluejayway to Law & Government (17 answers total)

your second example is confusing you, i think? if a jewish graphic designer offers bacon design services to whites, they should also offer them to blacks. that's not the same as saying that a jewish designer has to offer the service - that translates into asking arlenes to make a cake that would be offensive whoever asked for it (which is not what this case is about).
posted by andrewcooke at 11:10 AM on November 15, 2016 [12 favorites]

Best answer: If Arlene does business in the public sphere, and gets the tax benefits thereof, she should be subject to the public accommodation laws of her state. It's no different than saying that you can't do business at a diner and hang a "no Blacks" sign on the door. Washington's public accommodation law includes the right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement

(14) "Full enjoyment of" includes the right to purchase any service, commodity, or article of personal property offered or sold on, or by, any establishment to the public, and the admission of any person to accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement, without acts directly or indirectly causing persons of any particular race, creed, color, sex, sexual orientation, national origin, or with any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability, to be treated as not welcome, accepted, desired, or solicited
posted by roomthreeseventeen at 11:18 AM on November 15, 2016 [12 favorites]

None of those things are really equivalent, though. No one is saying that Stutzman herself has to show up at the wedding. She can send a delivery person or have someone pick the flowers up. She doesn't have to create anything that in another venue she would find offensive or disagree with. AFAIK she isn't being asked to create an image of two men kissing out of rose petals. She was asked to make the same flower arrangements for a gay couple that she does for straight couples.

It would be like if I made screen-printed t-shirts with my own designs, and I said, "Only atheists can buy my shirts." I would be discriminating based on my customer's religion.
posted by muddgirl at 11:22 AM on November 15, 2016 [8 favorites]

Arlene offers a service. She wants to exclude one kind of person from the service. That is discrimination.

If Arlene ran a water fountain and put up a sign saying "no blacks," that would be illegal.

If she ran a gas station and put up a sign saying "no mexicans," that would be illegal.

She is not being forced to run a flower service, a water fountain, or a gas station.

She is running a flower service and saying "no gays."

That is illegal.
posted by zippy at 11:29 AM on November 15, 2016 [1 favorite]

What's tripping you and Arlene up here is that Arlene's religion wants her to deny full enjoyment of her services on the basis of a prohibited distinction - viz., sexual orientation. It is not illegal to discriminate against bacon-lovers - they are not a protected class.

If Arlene had said "bacon is gross to me and I smell it on your breath and I need you to not come in this shop smelling like bacon", that would not be illegal.

Nor would it be illegal for her to decline to make a bacon cake, as it is not illegal to decide what the scope of your business is, and that it doesn't include bacon cakes.

Arlene's business is flowers. It is illegal, under this law, to deny her flower services to gay people.
posted by fingersandtoes at 11:31 AM on November 15, 2016 [8 favorites]

Also even if Arlene loses her case she can still refuse to serve individuals (like say Donald Trump) for personal reasons like Donald refused to pay her the last time she provided flowers. She can't refuse to serve Donald because of his race.
posted by Mitheral at 11:32 AM on November 15, 2016 [1 favorite]

(The name of the defendant in this case is Barronelle Stutzman, the owner of Arlene's Flowers).
posted by muddgirl at 11:39 AM on November 15, 2016

Its all about where you draw lines.

First its safe to say that businesses can discriminate. They can choose not do business with assholes - totally cool, they can choose not do business with swim teams, also totally okay. Which is why Neil doesn't have to play for Trump and Jew's don't have to work for the Bacon people.

But we as a society draw lines with protected classes because at some point your "freedom" is impinging on other folks rights. If her religion allowed her to discriminate against women or people of color would that be okay?. So the question is where does someones sexual orientation fit on the side of the protected class line for you?
posted by bitdamaged at 11:44 AM on November 15, 2016 [5 favorites]

Best answer:

Washington's public accommodation law includes the right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement.

This is really at the core of the matter - it's really quite central here that Arlene's is a flower shop. We, as a society, have chosen to place stricter anti-discrimination rules on certain types of public-facing businesses, based on the theory that allowing these types of businesses to discriminate can effectively prevent minorities from being able to enjoy the public sphere. A lot of this goes back to african-americans being excluded from hotels and restaurants, especially.

The owners of Arlene's made the choice to accept stricter anti-discrimination rules when they chose to run a flower shop (just as they would have had they opened a motel or a diner). There are many other types of jobs and business they could have pursued instead, where they would have had broader freedom to select their clients/customers/commissions for whichever reasons they chose.
posted by kickingtheground at 11:59 AM on November 15, 2016 [10 favorites]

The answer in many cases is privacy or the "none of your business" rule - it's none of Arlene's business what the flowers are used for or who her customers choose to love. Even if she is told the event is a gay wedding, it is still none of her business. It is none of the cake shop's business what message is getting put on the cake, even if they have to write it. Because of that, the actions required of them are not an endorsement, so their intolerant beliefs are not being violated.
posted by w0mbat at 12:07 PM on November 15, 2016

An additional fact that might be tripping you up (and makes some of the above comments non-responsive) is that the florist is willing to provide non-wedding services to gay clients (and indeed had previously provided them to the would-be customers in this case). That makes it a little more complicated.

Anyway, you want to distinguish the florist from the Inauguration Singer, the Kosher Designer and the like. You have two basic options, I think. One is to say that singing and designing are some kind of specially protected activity, but flower-arranging is not. (For instance, you might argue that singing and designing are expressive activity protected by the Free Speech Clause, but flower-arranging isn't.) But that will mean that somebody who doesn't want to sing at a same-sex wedding will have a claim, which you may not like.

The alternative is to say that there is expressive activity in each of these cases, but the government has a good reason (in legal terms, a "compelling interest") for trumping the expressive activity. You might say that preventing discrimination on the basis of race, sex, religion, or sexual orientation are compelling interests. That might get you the results you like here, but might have other issues.
posted by willbaude at 12:16 PM on November 15, 2016 [1 favorite]

Once Arlene decides to provide a service to the public, she has to provide it equally to all members of the public regardless of their race, sex, sexual orientation, etc. So if she decided that she didn't want to provide flowers for weddings under any circumstances, that would be fine; she doesn't have to, and certainly no one can force her to. That would probably be pretty bad for her business, but it's her business. On the other hand, if she's providing flowers for weddings of het people, she can't decide that she doesn't want to provide flowers for gay people. By the same token, if she provides flowers for white couples, she can't decide that she doesn't want to provide flowers for an interracial couple. (Of course, it's easy enough to find religious justifications for condemning interracial relationships, so that's not a far-fetched example.)

The state can't force you to think a certain way about gay couples or interracial couples or what have you, but if you're running a business, it can force you to provide services to them evenhandedly.
posted by holborne at 12:16 PM on November 15, 2016 [5 favorites]

Best answer: As others have said, it helps to think in terms of protected classes. You may feel that no one should discriminate for silly reasons, but the law tends to take a narrower approach: you can discriminate for any reason in your decision-making, except (1) in the public square and (2) on the grounds that a person is a member of a protected class / has a protected characteristic.

In my private life, I can discriminate as much as I like for any reason. I can choose to make gifts only to women and never to men. I can choose to only ever invite Asian people to my house for dinner, never anyone of any other race. I can say only straight people can be my friends. It isn't nice or moral, but it's legal. When I act in the public square, however - when I become a seller of goods or services, or an employer - the law narrows the irrational grounds on which I can act. I can say that I won't sell to a person with black hair but I can no longer say I won't sell to a person on the grounds of his race. I can say I won't employ a person whose face I don't like, but I can't say I won't employ any gay people. In your example, the florist is clearly in the public square. If what she is doing is providing a service for sale, she can't refuse to supply that service only to gay people on the grounds of their sexual orientation.

Protected characteristics tend to track historical patterns of discrimination: gender, race, religion, disability, sexual orientation. They don't track every form of potentially silly or arbitrary discrimination, eg discrimination against round-faced or red-haired people. So the case where a Jewish person is asked to serve bacon is pretty easy - yes, he is in the public square, but bacon-loving isn't a protected characteristic so it doesn't matter. He can decline to serve bacon for that reason. The fact that his religion is itself a protected characteristic isn't really relevant here, because anyone can refuse to serve bacon-lovers if they like, whether the reason is religion or not.

A wrinkle that sometimes occurs in these cases - though not in your example - arises because religion often is a protected characteristic that others have to take account of in their decision-making. In the bacon example, a Jewish butcher is not liable if he refuses to serve bacon; but he may also be actively entitled to sue, at least in some jurisdictions, if his employer tried to force him to serve or handle bacon. The employer needs to make a reasonable accommodation in that case, where possible. Otherwise it becomes a kind of indirect discrimination on the grounds of religion.

The hardest cases that we are seeing now are ones that involve a clash of protected characteristics in this way. Say a religious employee declines to serve gay people, or - assuming a racist religion - refuses to serve non-whites. If the religion demanded anything else, the religious person would normally be entitled to reasonable accommodation of this belief from an employer. But does an employer have to make accommodations for sincerely-held religious beliefs that themselves involve discrimination? If the answer is that the only way to do it is for the employer to themselves discriminate - if the religious employee won't serve the gay person or the black person, no one will - the answer seems to me to be straightforward. It can't be a reasonable accommodation of religious belief to ask the employer to commit the illegal act of discrimination herself. In my view, the harder cases are ones where the employer has the option of both avoiding discrimination and accommodating the religious belief - asking another employee to take over, for example. Whether this is a reasonable thing to expect employers to do is something courts have disagreed about. This is a great book on the topic. It focuses on European case law but it lays out the theoretical aspects very clearly.
posted by Aravis76 at 12:38 PM on November 15, 2016 [6 favorites]

Best answer: The difference between your examples and Arlene's Flowers is that your examples involve compelling someone to provide a service that they do not already provide to the public--Neil Young does not offer the service of performing on request to anyone who asks and your Jewish graphic designer presumably does not offer bacon design services--while the Arlene's Flowers case involves compelling someone to provide a service that they already provide to the public (i.e., flowers for weddings) but have refused to provide to a protected class. If I have an item for sale in my store and I remove it from the shelves when a member of a protected class walks in because I don't want a person from that group to sell it, that's discrimination. If a member of a protected class walks in and asks me to obtain an item for them to buy, which I don't already sell, that's against my religion, I don't have to obtain it.
posted by quiet coyote at 12:41 PM on November 15, 2016 [12 favorites]

Your Jewish designer doesn't have to make an ad for bacon, but if they do want to then the bacon company can't refuse their bid because they are Jewish.
posted by the agents of KAOS at 12:41 PM on November 15, 2016

An additional fact that might be tripping you up (and makes some of the above comments non-responsive) is that the florist is willing to provide non-wedding services to gay clients (and indeed had previously provided them to the would-be customers in this case). That makes it a little more complicated.

It doesn't, really. She sold wedding flower arrangements to straight couples, but not gay couples. That's discrimination. It doesn't matter that she sold non-wedding flowers to gay people any more than it matters that restaurants would serve African-American clients as long as they didn't sit at the counter.

It is none of the cake shop's business what message is getting put on the cake, even if they have to write it. Because of that, the actions required of them are not an endorsement, so their intolerant beliefs are not being violated.

This is a completely different issue, and was used by the religious right to muddy the waters. Refusing to put certain decorations on a cake is completely different from refusing to sell a cake entirely. It is not discrimination if a bakery refuses to sell anyone a cake with that message, no matter who they are.
posted by muddgirl at 12:54 PM on November 15, 2016

Best answer: I think the reason you are struggling is because you have two beliefs that are in conflict. You believe, morally, people shouldn't be forced to do things against their ethics or religion - which is a position that has a strong body of law in support of it. You also believe, morally, that people shouldn't be discriminated against because of their membership in a protected class - which is another position that has a strong body of law in support of it.

In this situation, like many situations we are faced with under the law when rights collide, there is absolutely no way that everyone can be happy. Barronelle will be forced to compromise her beliefs if she is forced to design wedding flowers, and the couple will be discriminated against and feel unwelcome if she is allowed to continue to not make the flowers

In these situations when rights come in conflict, the courts attempt to resolve them, honestly, in much the same way that you yourself resolve these ethics when they come in conflict - by asking the question: "Who will be more harmed?" The state - and you - must decide whose interests it has more of a vested interest in protecting.

In the current political climate, what will happen to Barronelle? Well, she'll probably host a fundraiser to pay her fines, and possibly have to either violate her conscience or stop providing wedding flowers. What will happen to her class (Christians)? Well, they will probably have to provide services to these gay people and feel squicky about it. What will happen to the couple? They will get told that they aren't fully equal, aren't citizens, and it's perfectly legal to discriminate against them. What will happen to LGBT people (especially in this climate)? They will probably feel as though the world considers them of lower value. They will feel terrible. But they're also a particularly vulnerable population - think of the amount of LGBT suicides over the last week.

So the way you can reconcile or frame your beliefs is that you are advocating for harm reduction, and those interests are served by Arlene's Flowers being required to sell flowers to everyone.
posted by corb at 1:19 PM on November 15, 2016 [15 favorites]