The final buzzer sounded on the Supreme Court tenure, and Pride month is finished. But the day after When the court’s final opinions were released, the LGBTQ community got an unexpected surprise: the Supreme Court dismissed consideration of an eight-year-old case about a florist allegedly not providing flowers for a same-sex marriage.
This case, Arlene’s Flowers v. Washington is now, finally, over, and the gay couple (and Washington State, which enforced its non-discrimination laws) have won. Shortly after the court finally awarded Gavin Grimm six-year-old quest to pee in a gender-appropriate toilet, the dismissal is another great victory for homosexuals, even though it came two days late for Pride.
From a distance this can seem confusing. Didn’t homosexuals just lose a major Supreme Court case two weeks ago?
Indeed, we did. On June 17, the Court ruled, unanimously, in Fulton v. City of philadelphia, that Catholic foster agencies may refuse to consider same-sex couples as foster parents. This loss still stings.
But wait a minute. Unanimously? Why did the three liberals on the court join a notice denying equality to homosexuals?
Because, if you take a closer look, Fulton was actually a very narrow decision, and its narrowness was, in itself, a victory for LGBTQ people. It turns out that Philadelphia has a provision to exempt social service agencies from various legal requirements. Since they did not grant an exemption here – and, instead, chose the Catholic agency for coercive action – that action is scrutinized to a much higher standard than if the law simply applied to everyone. world equally.
Now, Fulton didn’t have to come out that way. In fact, most observers (including me) believed the court would rule in a much broader fashion, perhaps requiring the same type of “rigorous scrutiny” whenever a religious practice is affected by a neutral government decision. It would have been a blow to civil rights law as we know it. But that did not happen – we’ll get to that in a moment – and instead the court made a very restrictive decision.
It turns out that the basis of the Arlène’s flowers The case was equally narrow, but right-wing interest groups, and in particular the Alliance Defending Freedom (ADF), have been lying about it for years.
This base was the case of 2018 of Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the Supreme Court allowed a Colorado baker to refuse to sell a wedding cake to a gay couple. Obviously, the facts are similar to Arlène’s flowers. So why did the baker win but the florist lose?
Because, like Fulton, Pastry masterpiece hanging on a very fine thread. In this case, there were comments in the Colorado Civil Rights Commission file describing the baker’s religious beliefs as “irrational” and “offensive.” Whatever you think of the legal and cultural battles between conservative Christians and LGBTQ people, this statement is certainly not acceptable. Government agencies must assess religious claims in a serious and neutral manner, and not offer their blind views as to their rationality or irrationality. So the baker won.
However, this is not how the ADF, Becket and other activist right-wing lawyers have done it. In their press releases – and, to be fair, also those of some LGBTQ organizations seeking to raise funds for outrage – they described Pastry masterpiece as announcing a broad exemption for all religious who disliked homosexuals. “Kill the gays” is legal! You can refuse service to queer people in your pizza place!
Personally, I cringed when the mainstream media repeated this story. Because, after following the case for years and carefully reading the notice which, as Fulton, had the backing of the Liberals in court – I knew that the case was actually much more limited than that.
He didn’t say what the ADF said he said, and what a lot of people seemed to believe: that it’s okay to refuse gay people if you have a religious reason. He was only saying something much, much narrower: that if a state agency is dismissive or partial to a religious claimant, it cannot proceed with law enforcement against him.
In Arlène’s flowers, however, there were no such comments on file. On the contrary, the Washington Supreme Court has declared, “We are convinced that the courts have resolved this dispute with tolerance. Washington state agencies enforced the law, period.
Of course, in court, the ADF tried its most powerful to allege all kinds of prejudice on the part of Washington State. But these allegations were flimsy at best. And, perhaps more importantly, these are mostly factual issues, not legal ones, which means the Supreme Court is highly unlikely to get involved in their review. The case was therefore dismissed.
Now had Fulton was the vast and terrible decision that many of us worried about, so Arlène’s flowers could have been ripe for a review by the Court. Suppose, for example, that Fulton had declared that any religious claim had “most favored nation” status over other claims, which was in fact supported by the ADF. Then the florist of Arlène’s flowers, Barronelle Stutzman, could say that God forbade him to provide flowers for a same-sex marriage, and that claim would trump Washington State’s argument that discrimination against gay people violates civil rights law .
There were good reasons to suspect that this was going to happen in Fulton. Justices Thomas, Alito and Gorsuch have repeatedly stated that they believe the government unacceptably discriminates against religious actors. Justice Barrett had taken similar positions in her academic writings. And indeed, sharing the opinion, Justices Kavanaugh and Barrett said they both believed that a broader decision would be justified one day.
But since the Fulton the matter could be solved without doing so, they wrote, that day was not yet near.
As they did with Pastry masterpiece, the ADF spin team attempted to spin Fulton in another gigantic victory for persecuted Christians who simply want to practice their religion at the expense of the civil rights of others. But Fulton didn’t say that, Pastry masterpiece didn’t say that, and so Arlène’s flowers was made redundant. Goodbye, Barronelle.
Because the point is, spin is not a law. The right can argue that an election has been stolen, that the antifa is hiding in your bathroom, and trans people don’t exist. But it is not, and in this country even conservative courts like the current Supreme Court are bound by facts and laws. And at least so far, you can’t turn gay people away from your lousy flower shop, even if you think God wills it. Who, moreover, She does not.
Oh, and fun fact? The clients Ms Stutzman turned down, Curt Freed and Robert Ingersoll, are still married, eight years after their marriage she refused to serve. I’m sure the flowers were fabulous.