The Supreme Court on Friday turned down a petition from a Christian florist who refused to create flower arrangements for a same-sex couple, declining for now to take another case asking when anti-discrimination laws must give way to religious convictions.
Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch indicated they would have accepted the case. But it requires four justices for a grant, and that means none of the court’s other three conservatives were willing to go along.
[Case of Washington state florist creates another opportunity for court]
A unanimous Washington state Supreme Court found that the florist, Barronelle Stutzman, violated the Washington Consumer Protection Act and Washington Law Against Discrimination, a state civil rights law.
In 2013, Stutzman told a friend, Robert Ingersoll, that she would not create arrangements for his wedding to his longtime companion, Curt Freed. Stutzman said she held Ingersoll’s hand and told him said she had to decline his request because of her “relationship with Jesus Christ.”
She was fined for violating the state’s law that prohibits businesses from discriminating because of sexual orientation. The conservative legal organization Alliance for Defending Freedom has been trying to get the Supreme Court to accept the case ever since.
It was seen as a natural follow-up to the court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court sided with a baker who would not create a wedding cake for a same-sex couple celebrating their union.
But the court’s decision in that case was fact-specific: that commission members had been unfairly hostile to Jack Phillips’s religious justifications for his actions. There was no such issue in Stutzman’s case.
There are numerous lawsuits across the country concerning wedding vendors — photographers, videographers, calligraphers among them — who do not want to participate in a same-sex marriage.
In the term just completed, the Supreme Court again found a way to dispose of a case raising religious liberty and LBGTQ rights without answering the underlying question.
The justices ruled unanimously that the city of Philadelphia was wrong to end a Catholic group’s contract to provide foster-care services because the organization refused to work with same-sex couples.
[Supreme Court rules for Catholic agency in foster-care dispute]
Chief Justice John G. Roberts Jr. reasoned that because Philadelphia theoretically allows some exceptions to its anti-discrimination policy, the city had violated the Constitution’s guarantee of free exercise of religion by not extending one to Catholic Social Services, which screens potential foster-care parents.
Washington Attorney General Bob Ferguson (D) praised the court’s decision to reject Stutzman’s petition, after the state supreme court has twice ruled against her.
“Discrimination on the basis of sexual orientation is not only wrong — it’s unlawful,” Ferguson said in a statement. “Today’s decision by the U.S. Supreme Court puts an end to our case, and sends a message to the entire country that everyone, regardless of their sexual orientation, should be treated equally under the law.”
Ria Tabacco Mar, an ACLU lawyer representing the couple, said, “Today the Supreme Court confirmed that LGBTQ people should receive equal service when they walk into a store.”
Alliance Defending Freedom General Counsel Kristen Waggoner called it “tragic” the court had passed up Stutzman’s case.
“No one should be forced to express a message or celebrate an event they disagree with,” Waggoner said in a statement. “A government that can crush someone like Barronelle, who kindly served her gay customer for nearly a decade but simply declined to create art celebrating one sacred ceremony, can use its power to crush any of us regardless of our political ideology or views on important issues like marriage.”
Waggoner said she was “confident” the Supreme Court will eventually affirm “the constitutionally protected freedom of creative professionals to live and work consistently with their most deeply held beliefs.”
The case is Arlene’s Flowers v. Washington
Separately, the court said it will take up a challenge to Maine’s tuition assistance program brought by two families who want to use the money to send their children to religious schools.
At issue is a Maine Department of Education rule that allows families who live in towns that do not have public schools to use public tuition dollars to send their children to the public or private school of their choosing. But the program does not allow schools that provide religious instruction.
[Supreme Court says states that subsidize private education must include religious schools]
The libertarian public interest firm Institute For Justice represents the families, and says the decision against the families by the U.S. Court of Appeals for the 1st Circuit conflicts with Supreme Court precedent.
“By singling out religion — and only religion — for exclusion from its tuition assistance program, Maine violates the U.S. Constitution,” attorney Michael Bindas said in a statement. “The state flatly bans parents from choosing schools that offer religious instruction. That is unconstitutional.”
The Supreme Court last year ruled that states that provide aid to private schools must include religious schools in the mix. The Institute for Justice brought that case as well.
The Maine case is Carson v. Makin.
The court also turned down a case asking it to reexamine the libel protections the court provided in the court’s landmark 1964 decision in New York Times v. Sullivan. But a second justice said it was the decision was ripe for reconsideration.
Thomas on Friday repeated the call he had made two years ago, and Gorsuch joined him.
Both said it was time to reconsider the “actual malice” doctrine in Sullivan. It requires a public official suing a publication for libel to prove the statements were made with a knowledge they were false or with reckless disregard for the truth. It was later extended to cover public figures.
Gorsuch said that in adding to Thomas’s call to take another look at Sullivan, “I do not profess any sure answers. I am not even certain of all the questions we should be asking.”
But he said, “given the momentous changes in the Nation’s media landscape since 1964, I cannot help but think the Court would profit from returning its attention, whether in this case or another, to a field so vital to the ‘safe deposit’ of our liberties.”
The case the court declined to take was brought by Shkelën Berisha, the son of a former Albanian prime minister. He filed a suit over corruption allegations against him made by author Guy Lawson in a 2015 book “Arms and the Dudes.”
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