The Right to Discriminate Is a Basic Property Right 

by Laurence Vance

Back in 2013, Barronelle Stutzman, the owner of Arlene’s Flowers in Richland, Washington, refused to provide flowers for a gay friend’s same-sex wedding. The legal battle that ensued has now ended: The Washington State Supreme Court just unanimously ruled that the florist violated the state’s anti-discrimination law.

The case has given rise to some misconceptions about discrimination.

Here is the back story.

In 2012, the state of Washington enacted Senate Bill 6239, which recognized same-sex marriage. Gay men Robert Ingersoll and Curt Freed, who had been a couple since 2004, decided to get married in September of 2013. At the time of his engagement, Ingersoll had been a customer of Arlene’s Flowers and Gifts for at least nine years. Stutzman, an active member of a Southern Baptist church who believed that marriage can exist only between a man and a woman, knew that Ingersoll was gay and in a relationship with Freed. When Ingersoll spoke with Stutzman about providing flowers for his wedding, she told him that she would be unable to do so because of her religious beliefs. She gave Ingersoll the names of other florists who might be willing to serve him and hugged Ingersoll before he left the store.

Stutzman said she “draws a distinction between creating floral arrangements — even those designed by someone else — and selling bulk flowers and ‘raw materials,’ which she would be happy to do for Ingersoll and Freed.” But she said she believes that “to create floral arrangements is to use her ‘imagination and artistic skill to intimately participate in a same-sex wedding ceremony.’”

Ingersoll maintains that he left “feeling very hurt and upset emotionally.” His partner Freed posted something on Facebook about the incident and the story “drew the attention of numerous media outlets.” Ingersoll and Freed then “lost enthusiasm for a large ceremony” and got married in July in “a modest ceremony at their home.”

That, of course, should have been the end of it. But

after the state became aware of Stutzman’s refusal to sell flowers to Ingersoll and Freed, the Attorney General’s Office sent Stutzman a letter. It sought her agreement to stop discriminating against customers on the basis of their sexual orientation and noted that doing so would prevent further formal action or costs against her. The letter asked her to sign an “Assurance of Discontinuance,” which stated that she would no longer discriminate in the provision of wedding floral services.

Stutzman refused.

The state then filed a complaint about injunctive and other relief against both Stutzman and Arlene’s Flowers under the Consumer Protection Act (CPA) and the Washington Law Against Discrimination (WLAD). Stutzman answered by “asserting, among other defenses, that her refusal to furnish Ingersoll with wedding services was protected by the state and federal constitutions’ free exercise, free speech, and freedom of association guarantees.” Ingersoll and Freed then filed a private lawsuit against Stutzman and Arlene’s Flowers, which the trial court consolidated with the state’s case.

The trial court ultimately decided against the defendant and awarded “permanent injunctive relief, as well as monetary damages for Ingersoll and Freed to cover actual damages, attorneys’ fees, and costs.” The court ruled not only that Stutzman violated the WLAD’s “public accommodations” provision, violated the CPA by refusing to sell floral services, and was personally liable, but also made five constitutional rulings. It concluded that the application of the WLAD’s “public accommodations” provision to Stutzman in this case:

(1) did not violate Stutzman’s right to free speech under the First Amendment to the United States Constitution or article I, section 5 of the Washington Constitution,

(2) did not violate Stutzman’s right to religious free exercise under the First Amendment,

(3) did not violate her right to free association under the First Amendment,

(4) did not violate First Amendment protections under the hybrid rights doctrine, and

(5) did not violate Stutzman’s right to religious free exercise under article I, section 11 of the Washington Constitution.

Stutzman appealed to the Washington State Supreme Court, which affirmed the trial court’s rulings last month.

There are a number of misconceptions that people have about discrimination, including Barronelle Stutzman, the attorneys who represented her, and the state’s attorney general.

Continue: The Right to Discriminate Is a Basic Property Right | Mises Wire

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