Come on Arlene’s – A second bite at the apple in the wake of Masterpiece Caskeshop

Yesterday was Gay Wedding Cake day in the lawyer world.  If you’re not really sure what I’m referring to, I’d like to congratulate you on finding a new home under that rock.  I hopes it’s spacious and has great wifi reception.  For the rest of us that live in the real world, like the poor bastard behind the keyboard at Lawyers & Liquor, the internet went nuts when the news of the Supreme Court’s ruling of the case of the baker who refuses to be a Marie Antoinette-esque figure to LGBTQ+ couples and demands that they not eat his cake set the world aflame as people tried to read into its meanings.  It was so bad that mere moments after the opinion was released I was fielding a phone call from a senior partner at my office who wanted to talk about it – meaning he wanted me to read and summarize it for him.

Most of the talk, though, was people desperately trying to find meaning in an opinion that never once really touched on the primary issue before it.  Instead of talking about whether the butcher, the baker, and the leather gear maker have a right to deny service to literally anyone in the world they want by screaming “But my Jesus” and locking the doors at the mere sight of a rainbow, SCOTUS punted the ball.  The Supreme Court issued a narrow ruling that applied to only that one set of facts, said “Fuck all of you waiting to hear if we’re about to descend into madness,” and based their ruling off of the baker not getting themselves an impartial tribunal at the first level in this shit.

Which means the reactions have ranged from “Well, I mean, this isn’t bad.  They didn’t set precedent against anyone here” to “The sky is falling and in Trump’s America they just started issuing government sponsored hunting licenses for people of different sexual and gender identities!”

But I feel some people may be missing the forest for the trees on this one, and I encourage all of you to go read the fucking opinion because there are some real gems in it that could telegraph the whole matter when, not if, a similar matter comes up before the court for determination.  Because this shit is coming back in front of the court for determination of the underlying issue the court didn’t address here.

Arlene’s Flowers, Inc. v. Washington

In fact, there’s already a case that’s pending for cert, which the justices will start discussing on Thursday.  And this one is similar to the Masterpiece Cakeshop decision, but much more fucking on point.

Robert Ingersoll and Curt Freed had been in a committed relationship for eight years when they decided that they were going to get married.  Good for them!  I mean, it’s a big step, and considering that Washington had just legalized same-sex marriage it was probably one Curt and Robert had been ready to take for a long fucking time!  So, in planning the wedding they decided that they really needed some kick ass flowers.  Maybe some nice roses, a tulip or two, that sort of shit.  All good and nice shit that they wanted to decorate the place as they professed their love to each other.

It was that desire that led Robert to go to Arlene’s Flowers, Inc. on February 28, 2013 to order some pretty posies for his pending nuptials, only to be told he had to come back later and talk to the owner.  But this wasn’t like some good customer service shit going on there.  Nope.  He had to talk to the owner so the owner could tell him that apparently gay dollars have cooties or something, and the company wouldn’t be providing flowers nor the arranging of said flowers to a gay couple that was affirming their commitment to each other.  Because, you know, Jesus.  Jesus apparently told her not to.  It’s a thing.

Which brings me to the first digression here:  Jesus was a guy who wandered the desert for years with twelve other guys and one woman.  Wearing robes.  I have a hard time believing that Jesus wasn’t okay with a little man-on-man action, even if he never partook.  After a long day of disciplining, shit happens.  I feel her entire perception may be flawed.

Long story short, and to boil the story down for those of the non-legal persuasion that for some reason insist on reading this shit, Robert and Curt complained to the state attorney general, then they sued the fuck out of old Arlene’s Flowers…which, coincidentally, was owned by a person named Barronelle Stutzman.  I hope she has to face a lot of days where customers who try to be funny walk in and say “Hey, I’m here to see Arlene.”  It’s only just.  But back to the point, as Robert and Curt sued the fuck out of the company, so did the Washington Attorney General on the grounds that Arlene’s Flowers, Inc. couldn’t discriminate against people like that while providing a general service to the public.

Sounding familiar yet?  Good.  It should.  Because that’s the same fucking issue in general that the Supreme Court punted on Masterpiece Cakes…but here it’s better, because the Court, if it accepts the case, has absolutely no choice but to go for it on fourth and long.

Masterpiece Cakes was a flawed test case.

The issue with Masterpiece Cakes wasn’t the “freedom of religion” or the civil rights aspect of it.  If you read the opinion, the problem with Masterpiece Cakes was that there was an expressed bias on the record when the whole thing was up before the quasi-judicial tribunal that is the Colorado Civil Rights Commission.  To quote Justice Kennedy, who wrote both the Masterpiece Cakes opinion and the opinion in the groundbreaking Obergefell case:

[T]he delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the
balance the State sought to reach. That requirement,
however, was not met here. When the Colorado Civil
Rights Commission considered this case, it did not do
so with the religious neutrality that the Constitution

Masterpiece Cakeshop,  Ltd., et al. v. Colorado Civil Rights Commission, 584 U.S. __ * 3 (2018).

See, the basis of the Masterpiece Cakeshop ruling wasn’t that this guy had some religious freedom to go forth and discriminate.  That’s an obscene result to assume, as it opens the door for a lot of other religious based discrimination that we wouldn’t tolerate, especially if you remember shit like the Bible being used to justify the subjugation of native peoples and motherfucking slavery on the principles of racial superiority from God.  Instead, it was based on comments made on the record that indicated a non-neutral attitude of the Civil Rights Commission in the application of the law…which is sort of a big deal, because when we apply laws like this we’re supposed to apply them from a viewpoint-neutral position.  All that means, then, is that the action of the Civil Rights Commission must be applied in a manner that does not regard the religious point of view as necessarily bad or hostile, but rather consider the merits of the matter.

It’s All About Scrutiny

The end result of something not being viewpoint neutral?  Well, the government burden becomes higher.  See, a viewpoint neutral position for the application of a law means the law only has to pass a rational basis level of scrutiny, which is…really fucking low.  It is essentially “the law is okay if it is rationally related to a real or hypothetical government interest.”  That shits like the easiest thing to pass over.  Hell, the case they teach in law school about it is about like…advertising on buses and shit.  Very low bar. Extremely low bar. Importantly, in such a situation it doesn’t matter what the government is actually intending to do, merely that there is some hypothetical legitimate government interest that it serves.

But when you remove the viewpoint neutral consideration, the whole thing falls from a legitimate government interest and into a nominal restriction of speech, and that triggers strict scrutiny.  Folks, strict scrutiny is fucking hard to meet.  It’s basically “Hey, if you want to limit this conduct by law, you gotta show that there is a compelling government interest, the law is narrowly tailored to address it, and the law is the least restrictive way of addressing it.”  Basically, it’s gotta be something really fucking crucial or necessary and the law has to be, in enforcement in application, the least impactful manner in which you can reach that goal.

There’s a saying about strict scrutiny, guys:  “Strict in theory, fatal in fact.”  If you get hit with strict scrutiny, in other words, you’re fucked on review, because it just doesn’t happen that often.

Masterpiece Cakeshop was “fatal in fact.”

It’s a fucked up standard, but there it is.  And in this case, the comments of the Commission, coupled with prior holdings by the Commission that relieved people of liability for refusing to place anti-gay messages on cakes and shit, indicated to the court that there was no neutral consideration of the issue and therefore the determination of the Commission was not viewpoint neutral but rather biased against the presupposition that someone could have religious grounds to object.

Once that happened, once the court sunk its teeth into the idea that the law as applied was not viewpoint neutral, the whole thing went from “this is something we’re legitimately interested in accomplishing” i.e. keeping LGBTQ+ residents able to purchase goods and affirming their position as full members of society to “this is something that it is absolutely fucking crucial we do.”  And, as we said above, once you hit strict scrutiny you’re pretty much boned…especially when you have a court packed with people that right now don’t really like the idea of the government doing shit anyhow.

In other words, without getting into some shit because I’m not a constitutional law scholar but a fucking hack of an attorney in the middle of nowheresville shit stick country, the holding in Masterpiece Cakeshop is simply “When considering questions that implicate in any way the freedom of speech and the free exercise of religion, the tribunal has to apply the law in a neutral manner without regard for its personal distaste for the religious views being implicated.”  It’s a thin line, but it’s there.

And that line’s important, because the Supreme Court of the United States, and really any appellate court, shouldn’t be looking to make new law every time a case comes before them.  If the court can decide the matter on grounds that don’t radically change the landscape of the law, it is, indeed, beholden on the court to do so.  Instead of deciding a flawed case in a manner that could hurt LGBTQ+ persons, the Court instead left the question of law (can you deny service based on religious objections) that people wanted resolved for another day and clarified the neutral application of the law principles in the context of civil rights laws.

I know, we all wanted them to smack the fucking baker down.  But sometimes you don’t get what you want…you get what you need.  And in this case, with the flawed record of the Commission and the proceedings prior to this matter, an outcome that doesn’t change the landscape radically may be exactly what is needed.  Especially when you consider that, now, everything that doesn’t touch on the issue of viewpoint neutral enforcement is pure dicta and not binding on any future case before the court.

Arlene’s Flowers Likely Doesn’t Have This Issue.

In Arlene’s Flowers, Inc., the issue of a biased tribunal is unlikely to arise for one reason and one reason only – the determinations made there were by an actual court and not an administrative panel at any level.  Administrative panels are not frequently made up of people that understand their comments, on or off the record, can become an issue.  Especially in the case of certain panels, they can be filled with well-meaning, but ultimately harmful to end cause, people that don’t understand the import some (frankly pretty justified) words can have on the process if the case gets bumped up.

However, the Washington Supreme Court opinion in Arlene’s Flowers expressly addresses the whole “neutral viewpoint test” in the application of the law and finds that the conduct is not prohibited as a way of attacking religion, but rather as a means of ensuring rights.

Without the apparent bugbear of viewpoint neutrality and a flawed record tainting the Supreme Court ability to address the issue, SCOTUS, if it decides to hear Arlene’s Flowers, Inc., will have no choice but to actually address the elephant in the room.  In this case, it’s what we were hoping the court would actually address in Masterpiece Cakeshop, namely the question of whether a private actor who operates a public accommodation can refuse service based on their personal religious beliefs.  And in that regard, we’re doing pretty fucking good, because, as the Washington Supreme Court pointed out, the law there specifically has a carve-out for religious organizations that are just religious organizations.  Which is a good thing, because it weighs in favor of viewpoint neutrality.

Further, and I can’t overstate this enough, the case there is being decided from beginning to end by actual fucking judges who are experienced in the neutral application of the law.  See, in Masterpiece the issue of viewpoint neutrality wasn’t in the law itself, but in the manner that law was being applied by the Civil Rights Commission.  When you take that out of the picture, you’re left with a law that is neutral on its face, but not neutral in how it’s being applied.

In Arlene’s Flowers, that question seems to no longer be present because at each stage of the application of the law it looks to be even handed as applied through the courts.


I don’t know guys.  Yesterday was a shitty day for folks.  But here’s the takeaway, really.

The fight on this matter isn’t over.  In no way was yesterday’s ruling a loss for LGBTQ+ rights or a win for those assholes running their mouths about how they should be able to throw gay people out on the streets.  It was a case that was decided on well-settled concepts of viewpoint restrictions and scrutiny levels on appeals.  The law, as it is important to the advancement of rights, is still unsettled because the court never reached it.

In 2003, Lawrence v. Texas made it so consensual same-sex relations can’t be illegal.  In 2013, United States v. Windsor knocked out the federal government’s attempt to deny federal recognition of same-sex spouses by depriving the Defense of Marriage Act of its definitions.  In 2015, Obergefell v. Hodges made it clear that, once and for all, love wins.  The ponderous journey through the courts can be slow at times and suffer setbacks, but Masterpiece Cakeshop doesn’t do that.  It doesn’t destroy LGBTQ+ rights.  It simply maintains the status quo.  And the status quo, right now, is that the steady march of time and public opinion is on the side of LGBTQ+ people in overcoming the bigotry of those that would see those rights stripped from us.

And there’s a contender waiting in the wings that could radically change that if the court agrees to hear it.




2 thoughts on “Come on Arlene’s – A second bite at the apple in the wake of Masterpiece Caskeshop”

  1. With respect, _Arlene’s Flowers_ is a much worse case for this to proceed on, because unless they also do those “Congratulations Bob and Curt” banners on the floral arrangements and that gets addressed, it is going to be *completely distinguishable* from a case like _Masterpiece Cakes_ because while the question of whether floral arrangements are artistic speech is not totally ridiculous(FN1), it doesn’t communicate a *specific message* to the average observer the way “Congratulations Charlie and Dave” written on a cake would.

    If they do do that, and it’s in the record, fine, maybe we’ll get a decision where (a) the Court specifically addresses the question and (b) the decision is applicable generally to LGBTQetc people and their desire to purchase goods and services related to their LGBTQetc’ness. Otherwise, I’m betting on another punt.

    Hey, maybe I should do that lawyer thing and go read the case…

    *reads case*

    They didn’t discuss, according to the record, what kind of flowers, who was going to transport them, et cetera. The florist says she told them she wouldn’t sell them even pre-arranged bouquets off the shelf for a gay wedding.

    If they take it, they’re going to punt. Again.

    At best, it’ll be a “can’t refuse ordinary public accommodations on this basis.” Which would be both huge and fantastic news, but it won’t answer the deeper question of what constitutes being forced to participate in an objectionable activity and the extent of the religious belief exception (if there is one) for commercial goods and services. So it would be a major victory in a sense, but leave us open to more years and years of arguing and legal uncertainty in another. I guess you take what you can get.

    FN1. The only case I know of that’s on point for that is a VARA case in which it was held that a flower garden was *not* a qualifying work of the visual arts, but that’s some rarefied specialist IP shit right there.

    1. The main question of “what is expressive and therefore not subject to these laws” versus “what is a commercial activity that is not a form of personal expression” is a huge issue, but first and foremost is the simple holding “You can’t refuse to provide services because they’re gay and it’s a gay wedding.” In short, no more hiding behind the idea that merely providing something to the event is so offensive to your religion that you shouldn’t have to.

      Baby steps.

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