In a recent series of so-called “wedding-vendor cases,” same-sex couples and wedding-service providers have clashed over the proper relationship between First Amendment rights and nondiscrimination statutes.1 When the Supreme Court took one such case — Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission2 — it failed to settle this debate, instead ruling for a religious objector after finding that state officials had shown “a clear and impermissible hostility” toward the objector’s religious beliefs.3 In State v. Arlene’s Flowers, Inc.,4 the Washington Supreme Court, on remand in light of Masterpiece, held that Masterpiece’s prohibition on religious hostility only applies to the conduct of adjudicatory bodies.5 Accordingly, it treated a claim that the Washington Attorney General had shown religious hostility as a Fourteenth Amendment selective enforcement claim instead.6 The Washington Supreme Court’s narrow reading of Masterpiece is not supported by Masterpiece’s language, related First Amendment case law, or the fact that the florist’s free exercise defense included allegations of selective enforcement. This stark narrowing of Masterpiece signals that broader First Amendment protections may be necessary to ensure governmental neutrality toward religion in practice.
Between 2004 and 2013, Barronelle Stutzman arranged flowers worth several thousand dollars for Robert Ingersoll, knowing they were for Ingersoll’s same-sex partner, Curt Freed.7 But in February 2013 — four months after Washington’s voters approved same-sex marriage — Ingersoll came to Stutzman’s store, Arlene’s Flowers, with a new kind of request.8 This time he wanted to discuss wedding flowers.9 Stutzman told Ingersoll that she could not arrange flowers for his wedding without violating her religious beliefs, and she referred him to other florists who would be able to serve him.10 Ingersoll left the conversation feeling very upset and mentioned the encounter in a Facebook post the next day.11
Ingersoll’s post went viral, drawing the attention of numerous media outlets, the ACLU, and Washington Attorney General Bob Ferguson.12 Although the Attorney General’s office received no complaint about the incident,13 the office contacted Stutzman and requested an “Assurance of Discontinuance” which stated that she would provide wedding floral services equally to same-sex and opposite-sex couples.14 When Stutzman refused to sign the document, the State sued Arlene’s Flowers — as well as Stutzman in her personal capacity — alleging violations of the Washington Law Against Discrimination15 (WLAD) and the Consumer Protection Act.16 Stutzman raised a number of constitutional defenses, principally relying on free speech and free exercise rights, as well as a selective enforcement claim under the Fourteenth Amendment.17
The Washington Superior Court granted summary judgment to the State with respect to Stutzman’s constitutional defenses.18 First, the court found that there was “no persuasive authority in support of a free speech exception (be it creative, artistic, or otherwise) to antidiscrimination laws applied to public accommodations.”19 Turning to Stutzman’s free exercise defense, the court found that although the WLAD contained exceptions for clergy and religious organizations, it was still a neutral and generally applicable law, and it passed rational basis review because it advanced the government’s interest in eradicating discrimination.20 Finally, the court denied Stutzman’s selective enforcement claim, finding that she had not presented evidence of discriminatory purpose and effect sufficient to overcome the “strong presumption of regularity” afforded to prosecutors.21
The Washington Supreme Court affirmed. Writing for a unanimous court, Justice McCloud22 first rejected Stutzman’s statutory arguments, finding that a refusal to provide services for a same-sex wedding constituted discrimination on the basis of sexual orientation.23 Then, she denied Stutzman’s free speech claim, finding that flower arrangements are neither literal speech nor conduct that is “clearly expressive, in and of itself, without further explanation.”24 Finally, like the Superior Court, Justice McCloud rejected Stutzman’s free exercise claim after finding that the WLAD was a neutral and generally applicable law subject to rational basis review.25 The court did not address Stutzman’s selective enforcement claim, as she had waived it on appeal.
While Stutzman’s petition for certiorari was pending before the U.S. Supreme Court, the Court decided Masterpiece, holding that Colorado showed impermissible hostility toward religion in its handling of a similar clash between First Amendment claims and an antidiscrimination statute.26 Meanwhile, a separate incident brought into question Washington’s own neutrality in its enforcement of the WLAD. On October 1, 2017, the owner of Bedlam Coffee in Seattle confronted a group of Christian customers and expelled them from his shop after expressing disagreement with their anti-abortion views.27 Although several complaints were filed with the Attorney General’s office after the incident, the office did not conduct an investigation or seek to enforce the WLAD against Bedlam Coffee.28 Stutzman filed supplemental briefing with the U.S. Supreme Court, arguing that the Attorney General’s markedly different response to the Bedlam Coffee incident, together with other aspects of his handling of Stutzman’s case, betrayed impermissible religious hostility in violation of Masterpiece.29 Shortly afterwards, the Court granted Stutzman’s petition for certiorari and vacated and remanded her case for further consideration in light of Masterpiece.30 The parties submitted another round of briefing, and Stutzman moved to supplement the record with information relating to the State’s alleged religious hostility, including its dissimilar treatment of Arlene’s Flowers and Bedlam Coffee.31
On remand, the Washington Supreme Court again unanimously affirmed.32 The court first interpreted Masterpiece as merely holding “that the adjudicatory body tasked with deciding a particular case must remain neutral.”33 Because Stutzman alleged that Washington’s Attorney General, rather than an adjudicatory body, had acted with religious hostility, the court found Masterpiece irrelevant to her claim.34 Rather, the court argued, Stutzman was essentially raising a selective enforcement claim by trying to show disparate treatment and religious hostility in the State’s law enforcement.35 Because Masterpiece “says nothing about selective-enforcement claims,” the court instead relied on U.S. Supreme Court cases addressing such claims under the Fourteenth Amendment, which have “emphasized that the standard for proving [selective-enforcement claims] is particularly demanding.”36 Finding that the “same demanding standard” should govern Stutzman’s claim, the court denied her motion to supplement the record and refused to consider whether Attorney General Ferguson’s actions indicated hostility toward her beliefs.37 The court then rejected Stutzman’s other statutory and constitutional defenses for a second time, reproducing “major portions of [its] original (now vacated) opinion . . . verbatim.”38
The Washington Supreme Court’s narrow interpretation of Masterpiece is difficult to square with most of that case’s language. Related First Amendment case law also demonstrates the propriety of reviewing executive and legislative — as well as judicial — actions for signs of religious hostility. Nor can the court’s reference to the demanding standard for Fourteenth Amendment selective enforcement claims justify its decision not to apply Masterpiece’s religious neutrality requirement. The Washington Supreme Court’s choice to narrowly confine Masterpiece may indicate that broader First Amendment protections will be necessary to curb prejudicial treatment of unpopular religious beliefs.
On the whole, the Washington Supreme Court’s decision to confine Masterpiece to adjudications was unsupported by Masterpiece’s language, which instead suggested that the Free Exercise Clause requires each branch of government to act with neutrality toward religion. Masterpiece did have some language that could be read to support the court’s narrow reading: for instance, when discussing the appropriateness of inferring hostility, the U.S. Supreme Court noted that the facts underlying Masterpiece arose in the specific context of “an adjudicatory body deciding a particular case.”39 But the case nowhere limited itself to adjudications, and on the contrary, its language frequently implied that its elucidation of the Free Exercise Clause’s meaning should apply more broadly. For example, rather than stemming from a constitutional requirement of judicial impartiality, Masterpiece’s holding was grounded in “the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”40 And the Court made clear that the “State’s duty” is not just a duty for adjudicators, but rather is one that “all officials” must remember.41 Elsewhere, the Masterpiece Court drew broadly on “the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion” and reiterated the impermissibility of any “official expressions of hostility to religion.”42 The Court did not limit the applicability of any of these principles to the act of adjudication, suggesting that Masterpiece’s articulation of the religious neutrality that the Free Exercise Clause requires applies to government conduct more broadly.
An examination of related case law further indicates that Masterpiece may appropriately be invoked outside the context of adjudications. In Masterpiece, the Court derived its strict religious neutrality requirement from Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,43 a case involving city ordinances which had been “gerrymandered” to apply only to Santeria adherents and their religious practices.44 This gerrymandering had been accomplished by legislative and executive officials working in tandem,45 outside of any adjudicatory context, yet the Court still prohibited these actors from “singl[ing] out [religious practice] for discriminatory treatment.”46 And subsequently, in Trinity Lutheran Church of Columbia, Inc. v. Comer,47 the Court allowed a religious school to invoke “the Lukumi line of cases” to establish antireligious discrimination even though the school was challenging a discretionary decision of a state’s executive branch.48 The requisite evidence needed to sustain a religious hostility claim will vary by context, and the standard will likely be different when the allegations implicate the discretion of a state’s chief prosecutor.49 But the Supreme Court’s precedents in Lukumi, Trinity Lutheran, and Masterpiece suggest that courts should still apply the Free Exercise Clause’s requirement of religious neutrality to all government actors — whether in the adjudicatory context or not.
Nor can the Washington Supreme Court’s analogy to Fourteenth Amendment selective enforcement claims justify its failure to apply Lukumi and Masterpiece. The court argued that because selective enforcement was a component of Stutzman’s religious hostility claim, her claim had to meet the demanding standard for Fourteenth Amendment selective enforcement claims set forth in cases like United States v. Armstrong.50 Yet selective enforcement was only one element of Stutzman’s free exercise defense, which used numerous aspects of Washington’s overall handling of her case to argue that the State had shown impermissible hostility toward her beliefs.51 Moreover, the court’s approach simply assumed that the same standards should apply to selective enforcement claims arising under the Free Exercise and Equal Protection Clauses.52 This assumption is in some tension with the growing patchwork of distinct protections that the Supreme Court has constructed for free exercise claimants,53 and it conflicts with the approach of the only federal appellate court to consider the issue.54 It also results in an anomalous pattern of free exercise protections: Lukumi and Masterpiece may be used as swords to affirmatively challenge discriminatory executive branch decisions on free exercise grounds,55 but the same cases provide no shield against religious discrimination when defending actions originally brought by the state. Thus, the fact that Stutzman’s free exercise claim included a selective enforcement allegation did not justify the Washington Supreme Court’s refusal to apply the religious neutrality requirement articulated in Lukumi and Masterpiece.
Based on straightforward application of precedent, the Washington Supreme Court should have applied Masterpiece’s religious neutrality requirement in Arlene’s Flowers. Yet the fact that Masterpiece is binding precedent is not the only reason to apply First Amendment protections in this type of context. American attitudes toward religion have become increasingly polarized over the last two decades, fueling cultural and legal battles in which “[e]ach group views the other’s values as threatening and incomprehensible.”56 Given the risk of prejudice which arises from this lack of empathy and understanding, Masterpiece importantly reaffirmed the neutrality and respect owed to all religious convictions, even when government officials find them objectionable. But Arlene’s Flowers cabined this duty very narrowly, compromising the First Amendment’s ability to allow a diversity of viewpoints to flourish. Perhaps the test Masterpiece provided is not the optimal way to ensure neutrality and diffuse our polarization.57 Yet the Washington Supreme Court’s choice to confine that test so narrowly illustrates a need to rethink the treatment of free exercise claims, perhaps with an eye toward broader First Amendment protections which ensure that Masterpiece’s guarantee of governmental neutrality toward religion is respected in practice.