License to Discriminate: How a Washington Florist Is Making the Case for Applying Intermediate Scrutiny to Sexual Orientation
| Publication year | 2014 |
I. INTRODUCTION
On March 1, 2013, a man walked into a floral shop in Richland, Washington, intending to purchase flowers for use at his wedding.(fn1) Though this particular shop normally provides this service, the owner refused on the basis that her religious beliefs would not allow her to par-ticipate in the man's wedding.(fn2) The conflict? The customer was marrying another man.(fn3)
Over the past few decades, the debate over sexual orientation has risen to the forefront of civil rights issues. Though the focus has general-ly been on the right to marriage, peripheral issues associated with the right to marriage-and with sexual orientation generally-have become more common in recent years. As the number of states permitting samesex marriage-along with states prohibiting discrimination on the basis of sexual orientation-increases, so too does the conflict between providers of public accommodations and those seeking their services.(fn4) Nev-er is this situation more problematic than when religious beliefs are cited as the basis for denying services to gay, lesbian, bisexual, or transgender individuals.
Many such cases have been addressed solely in the media or re-solved privately between parties. In response to the Richland flower shop incident, however, the State of Washington took the unusual step of di-rectly filing suit against a private company and the individual owner in order to enforce the state's antidiscrimination laws.(fn5) This is certainly not the first time a state has become involved in such a dispute. Hawaii,(fn6) New Mexico,(fn7) and Colorado(fn8) have all intervened in similar cases, and Oregon has been investigating another;(fn9) however, Washington is the first state to take such direct legal action.(fn10) Though the Washington case may never be resolved on its merits, it still raises a critical question not previ-ously at issue: what happens when a state acts to suppress a right and a class fully protected by federal legislation and the Constitution (religion) in favor of a class that is only partially protected by federal law and is fully protected by only a handful of states (sexual orientation)? This question requires two answers: first, the likely outcome of the case if it reaches the United States Supreme Court; and second, a way to resolve the ensuing conflict between states offering varying levels of protection around sexual orientation. I conclude that the Supreme Court would like-ly resolve the current conflict in favor of the State. Furthermore, this con-flict demonstrates the need for consistent nationwide protection of sexual orientation-any lesser protection, whether at the federal level or among individual states, is unworkable in a civil rights context.
Part II provides background on cases involving the three elements critical to this analysis: (1) discrimination on the basis of sexual orienta- tion in a public accommodation setting; (2) justification on the basis of religious beliefs; and (3) legal action by the state to enforce its antidis-crimination law. The first section of Part II provides a review of cases in Hawaii, New Mexico, and Colorado, and a brief overview of a recent investigation in Oregon. The second section of Part II provides a descrip-tion of the case currently underway in Washington. Part III assesses the current status of federal and state antidiscrimination laws regarding sexual orientation and the free exercise of religion. Additionally, it analyzes the competition between the two and the likely outcome of the current Washington case should it reach the United States Supreme Court. Part IV addresses the potential conflict among states resulting from a Su-preme Court ruling in favor of the State of Washington and the need for a consistent nationwide legal standard that both adequately addresses the conflict arising in public accommodation cases and provides increased protection for sexual orientation. Finally, Part V concludes.
II. STATE CASES
The denial of service in a commercial setting on the basis of sexual orientation, though not necessarily common, is by no means limited to Washington State. Some of the oldest services involving public accom-modation discrimination on the basis of sexual orientation were places of lodging, such as hotels and inns.(fn11) Such services were the basis for a Hawaii case involving sexual orientation discrimination, religious be-liefs, and state action.(fn12) In 2007, a California couple sought accommoda-tions at a Hawaii bed and breakfast, but they were refused when the owner discovered that the prospective customers were both women.(fn13) The owner refused these services on the basis of his personal religious views.(fn14) Pursuant to Hawaii state law, the two women filed complaints with the Hawaii Civil Rights Commission-the state agency responsible for the enforcement of Hawaii's antidiscrimination laws.(fn15) Following a lengthy investigation, the Hawaii Civil Rights Commission found support for the couple's discrimination claim and gave the couple permis- sion to initiate a lawsuit.(fn16) The couple filed a private suit on December 19, 2011, and the Hawaii Civil Rights Commission successfully moved to participate in the case as plaintiff-intervenor.(fn17) The Commission, along with the plaintiffs, filed a joint summary judgment motion, and the court ruled in favor of the couple.(fn18)
As more states allow same-sex marriages, however, the conflict be-tween religion and sexual orientation is moving beyond places of lodging and into businesses that provide generic goods and services. This conflict became evident in 2006 after a New Mexico photographer refused to provide services for a same-sex wedding ceremony.(fn19) After the New Mexico Human Rights Commission determined that the business had engaged in unlawful discrimination, the business filed a series of appeals, arguing at each stage that New Mexico's antidiscrimination law violated the First Amendment by compelling speech and by limiting the free ex-ercise of religion, which was also a violation of state law protecting reli-gion.(fn20) These appeals were unsuccessful, and the business eventually exhausted its options for relief in the State of New Mexico.(fn21) On November 8, 2013, the business filed a petition for a writ of certiorari with the United States Supreme Court.(fn22) Though the case appeared to be the first of its kind in the Court-placing sexual orientation and religion in direct conflict through public accommodation law-the business dropped all claims pertaining to the free exercise of religion and only presented a compelled speech issue.(fn23) On April 7, 2014, the Supreme Court denied the petition.(fn24)
As the New Mexico photography case progressed, wedding cakes became a new source of conflict, as demonstrated in 2012 after a Colorado cake shop declined to provide a wedding cake for a same-sex couple.(fn25) According to the owner, it was store policy to deny wedding-related services to same-sex couples.(fn26) It became clear that this was an established policy after the couple's complaint led to an investigation by the Colorado Civil Rights Division.(fn27) When the agency released a probable cause determination finding that discrimination had occurred, it cited not only the incident described in the initial case, but also three other instances of alleged discrimination at the same shop-two in 2012 and one as far back as 2005.(fn28) Efforts to settle the case were unsuccessful, and the dispute moved to an administrative hearing before the Colorado Civil Rights Commission which affirmed prior discrimination findings and ordered the shop to provide services regardless of sexual orienta-tion.(fn29) There are indications that the Colorado Office of the Attorney General has been involved, but not as a direct plaintiff against the cake shop or its owner.(fn30)
A similar scenario is currently playing out in Oregon, where sexual orientation is one of eight classes protected from discrimination in places of public accommodation.(fn31) In January 2013, an Oregon baker declined to make a wedding cake for a same-sex couple on the basis of his reli-gious beliefs-describing the situation as a religious opinion rather than discrimination.(fn32) In August 2013, the would-be customer filed a com-plaint with the Oregon Civil Rights Division-the state agency responsi-ble for investigating discrimination allegations.(fn33) At the time, the com-plaint was the tenth of its kind filed in Oregon, though a case has yet to go before an administrative law judge as each complaint was settled or dismissed.(fn34) The customer's partner filed a second complaint, and the Oregon Bureau of Labor and Industries ultimately determined that dis-crimination had occurred; (fn35) private actions have not been initiated. Yet, this is not the only instance of such a refusal in Oregon. In May 2013, another couple was refused services by a baker in Hood River, Oregon, on the same basis-their same-sex marriage went against the religious beliefs of the baker.(fn36) Where discrimination is found, the Oregon process calls for administrative proceedings similar to those used in Hawaii, New Mexico, and Colorado prior to any private...
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