Paxton files brief in support of Arlene's Flowers owner in LGBT discrimination suit

By Kacie Whaley | Aug 29, 2017

AUSTIN – A 14-state coalition has filed an amicus brief with the U.S. Supreme Court over the First Amendment right of Barronelle Stutzman, a Washington-based floral shop owner who was sued over allegations of sexual orientation discrimination, the Texas Attorney General's office reported.

The coalition first joined last year to file and amicus, or friend of the court, brief with the Washington State Supreme Court regarding the case, but the court declare that flower arrangements did not constitute as free speech. Texas Attorney General Ken Paxton leads the union and was joined by attorneys general from Arkansas, Alabama, Arizona, Idaho, Louisiana, Nebraska, Nevada, Oklahoma, South Carolina, West Virginia, Wisconsin, Kentucky and Maine.

Stutzman, 72, was sued after a longtime customer of her floral shop, Arlene's Flowers, wanted a custom arrangement made for a same-sex wedding. Stutzman refused to make the arrangement, claiming that it would be against her religious beliefs, but she recommended that the couple purchase a pre-made arrangement and also referred them to other florists. The state of Washington and the American Civil Liberties Union took legal action against the shop owner to the tune of approximately $2 million.

Frank S. Ravitch, a professor of law at Michigan State University and Walter H. Stowers Chair in Law & Religion who specializes in constitutional law, told The SE Texas Record that while Stutzman could still argue that the suit could be violating her free speech right of expressive activity, the state of Washington could have a good chance of disproving that claim.

"If the state has a compelling interest and if enforcing the anti-discrimination law is narrowly tailored to meet that interest, the state could still win," Ravitch said. "There is a long line of cases supporting the idea that enforcing anti-discrimination (and other) laws is a compelling governmental interest and enforcement itself is narrowly tailored to meet that interest, so the state could win even if creating a flower arrangement is deemed expressive activity."

Although there are several government leaders supporting Arlene's Flowers, Ravitch contends that even such a strong line of defense could still prove to be of little use in defeating this case for Stutzman.

"Amicus briefs can have a major impact on a case or no impact, and everything in between," Ravitch said. "It really depends on the case and on each justice."

The future of Stutzman's flower shop is on the line depending on the outcome of this case, but what the Supreme Court decides to do with the case is still up in the air.

"I think in this case it is quite possible SCOTUS will grant the petition for certiorari, but not decide the case directly. Rather, it will remand the case to the lower court," Ravitch said.

A petition for writ of certiorari is "a document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court," according to TechLawJournal.

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