Document Type

Article

Publication Date

3-29-2019

Abstract

The Washington Supreme Court is the current battlefield in a national conflict between religion and anti-discrimination laws. The Court is considering the case of Arlene’s Flowers, a small flower shop in the central part of the state, which refused to sell wedding arrangements to a gay couple. The arguments in the case parallel those made last year in the Masterpiece Cakeshop controversy, the case of the Colorado bakery that refused to sell a cake for a same-sex wedding. The U.S. Supreme Court decided for the bakery on reasons that don’t apply broadly (the Court held that a Colorado official allowed anti-religious bias to affect the state’s prosecution of the bakery). So cases like Arlene’s Flowers are still making their way through the lower courts. The conflict is serious. On one side, the state has a strong interest in protecting consumers from discrimination. On the other side are religious people who bristle at the state telling them they must use their artistic talents to commemorate same-sex unions. As in the Masterpiece Cakeshop controversy, most of the attention in Arlene’s Flowers has been paid to whether the business is engaging in a first amendment-protected artistic activity. But there’s a way that courts can avoid the tricky free speech and religion questions. And the way out is — surprisingly — based on the notion that corporations are people.

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