Washington State Attorney General Bob Ferguson is suing a florist for refusing service to a gay couple, as the florist says, “because of [her] relationship with Jesus Christ.”
Coverage of the story by local media and national news outlets has focused on the legal action in light of the recent passage of Washington’s same-sex marriage law. The Stranger’s Dominic Holden describes the lawsuit as the “first major test of anti-discrimination protections since Washington State voters legalized same-sex marriage last fall.”
While technically true, this is misleading. Washington’s anti-discrimination protections – and thus this case – have nothing to do with the same-sex marriage law. The lawsuit does not accuse Arlene’s Flowers owner Barronelle Stutzman of breaching Washington marriage law, but instead the state’s anti-discrimination code, which was amended in 2006 to include a statute prohibiting discrimination based on sexual orientation.
This is an instance of anti-gay marriage activists inaccurately skewing the issue to bolster their argument – a common tactic described amply in Jay Michaelson’s PRA report, Redefining Religious Liberty.
Ferguson’s accusation is straightforward: the defendant discriminated against a customer because of his sexual orientation. The defendant’s retail business, as a facility open to the public for the goods and services, is a public accommodation and is thus subject to the anti-discrimination code.
The defendant’s lawyer, on the other hand, claims that his client’s business is not a public accommodation and that the real issue is not discrimination, but “expression and conscious [sic – conscience].” “Although gay ‘marriage’ may be legal in Washington for the time being,” Stutzman’s attorney writes, “the concept offends the conscious [sic] of Ms. Stutzman and many others in Washington.”
As the above quote points out, the exact legal bounds of same-sex marriage, and especially social perceptions of it, remain unsettled. This is less true about anti-discrimination laws. In other words, if this case can be framed as resulting from Washington’s new same-sex marriage law, rather than from its existing anti-discrimination code, it can be deceitfully used by opponents of marriage as “proof” of what happens once same-sex marriage is legalized. This is the same tale as Elane Photography v. Willock, also in Michaelson’s report.
Stutzman’s attorney hints at unnamed, national nonprofits on his side who are “ready for a fight.” (Expect to see the Becket Fund involved soon.)