As SCOTUS Conferences on ‘Arlene’s Flowers’ Case, Similar Litigation Surges Through Courts

By Adam Polaski • June 11, 2018 • 10:00 am

Toward the end of his majority opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Supreme Court Justice Anthony Kennedy wrote, “The outcome of cases like this in other circumstances must await further elaboration in the courts…”

That further elaboration could come very quickly. On June 7 the U.S. Supreme Court conferenced on a cert petition in the case of Arlene’s Flowers v. Washington, a case concerning a flower shop that denied service to a same-sex couple and now seeks an exemption from Washington state’s law prohibiting discrimination based on sexual orientation and gender identity. While the Court did not take action on the case this week, it has been distributed for the June 14 conference, when the Justices will gather to determine whether or not to grant review in the case. The Justices could take action – grant the petition for review, deny it, or do something else – as soon as Monday, June 18. Every court that has considered Arlene’s Flowers has upheld Washington’s nondiscrimination law, including a unanimous decision from the Washington Supreme Court.

The Arlene’s Flowers case isn’t the only litigation centered on religious exemptions from LGBTQ-inclusive nondiscrimination laws and ordinances. There is a persistent wave of cases working their way through the court system now. A majority of these cases were filed by the Alliance Defending Freedom, an extremist organization that works to chip away at protections for LGBTQ people. Here’s a look at some of the cases on the horizon:

  • 303 Creative v. Elenis: This case concerns a graphic designer seeking to actively discriminate against LGBTQ couples by preemptively refusing them service and advertising that she does not serve same-sex couples. The owner claims that Colorado’s state law would force her into “promoting same-sex marriage.” The case was scheduled for oral argument in May 2018 by the U.S. Court of Appeals for the 10th Circuit before being rescheduled, tentatively for September 2018. ADF represents the graphic designer.
  • EEOC v. R.G. & G.R. Funeral Homes:  This case, led by the EEOC and the ACLU, focused on a transgender woman fired from her job at a funeral home after transitioning from male to female. A federal judge ruled against the woman, Aimee Stephens, and issued an unprecedented decision granting the employer an exemption from Title VII based on the employer’s religious views. In Michigan, where the case is based, Title VII has been found by the 6th Circuit Court of Appeals to apply to discrimination based on gender identity. Following a March ruling from the U.S. Court of Appeals for the 6th Circuit in favor of the EEOC, ADF said that it would seek review from the U.S. Supreme Court. If ADF seeks review, the cert petition is due in August.
  • Telescope Media Group v. Lindsey: ADF represents the owners of a video and film production company. While they do not currently offer the service of filming weddings, they say they would like to enter that area of work – but if they do, they want to be able to refuse to film weddings between same-sex couples. ADF reports that they “want to use their wedding cinematography to reanimate the hearts and minds of people about the goodness of marriage between a man and a woman.” Doing so would violate Minnesota’s LGBTQ-inclusive nondiscrimination law. In September 2017 a federal judge ruled that way, writing in a dismissal, “All of the Larsens’ claims fail as a matter of law.” The 8th Circuit is expected to consider the case soon.
  • Brush and Nib Studio v. City of Phoenix: This case made headlines earlier this week when the Arizona Court of Appeals ruled to uphold  Phoenix’s LGBTQ-inclusive nondiscrimination ordinance. The case seeks an exemption from the nondiscrimination ordinance under the “Arizona Free Exercise of Religion Act,” with the business asserting that they should be allowed to refuse service to LGBTQ people. ADF has said it will appeal the decision to the Arizona Supreme Court.
  • Tastries Bakery Case: On Monday, February 4, a trial court in California ruled against a lesbian couple, who faced discrimination from a business that sells wedding cakes. While the store sells wedding cakes to non-LGBTQ couples, the owner said that it would not sell to a same-sex couple. The couple’s attorney has appealed, and the case has a hearing date on June 19.

Many other cases are also pending in court – cases that seek a decisive determination that federal law already prohibits discrimination based on sexual orientation and gender identity. There is a growing legal consensus that Title VII of the Civil Rights Act and Title IX of the Education Amendments, which prohibit discrimination based on “sex,” also prohibit discrimination based on sexual orientation and gender identity. At least two cert petitions concerning employment discrimination based on sexual orientation will reach the U.S. Supreme Court in the fall. And many cases concerning protections for transgender students have been ruled on in lower courts.

Freedom for All Americans applauds our legal partners working so hard in the court of law while we rally support and make the case for LGBTQ protections in the court of public opinion. This is a national movement, and it’s high time for LGBTQ Americans nationwide to be explicitly ensured protection from discrimination based on who they are or who they love. We know that no one should face discrimination because of who they are – and that businesses open to the public must remain #OpenToAll.

Follow along on other LGBTQ litigation with Freedom for All Americans’ Litigation Tracker.

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