You Don’t Bring Me Flowers: Anti-Discrimination and Consumer Protection Laws Upheld for Washington State’s LGBT Community

By Michael R. Scott

On February 18, 2015, in a historically significant ruling, a Benton County Superior Court judge found that Arlene’s Flowers, who refused to provide flowers to Curt Freed and Robert Ingersoll for their wedding, had violated state anti-discrimination and consumer protection laws (State of Washington v Arlene’s Flowers). I had the honor of working with several of my colleagues to represent the plaintiffs in this action, and we couldn’t be more pleased with the ruling and the precedent it sets on behalf of the LGBT community.

We were approached by Sarah Dunne, Legal Director for the ACLU Foundation of Washington, and asked to take on the case pro bono. Although representing a significant investment for the firm (hundreds of hours in donated attorney time), my partners immediately recognized the case’s significance as a civil rights issue, and wholeheartedly approved our involvement.

We prevailed in the ruling because of two key arguments:

1. Violation of the State Civil Rights Act: The Washington State Civil Rights Act, known as the Washington Law Against Discrimination, prohibits discrimination because of sexual orientation.  RCW 49.60.030.  The right to be free from discrimination includes the right to “full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement. . . .”  Id.  The statute defines “any place of public resort, accommodation, assemblage, or amusement” to include any place “for the sale of goods, merchandise [or] services. . . .”  Id.  This definition clearly includes businesses such as Arlene’s Flowers, and prohibits Arlene’s Flowers and other similar businesses from refusing to sell goods, merchandise, and services to any person because of their sexual orientation.
2. Religious Beliefs No Defense: Arlene’s Flowers refused to provide flowers to our clients for their wedding citing religious beliefs.  While they have the right of religious freedom, we live in a diverse country, and religious beliefs, no matter how sincerely held, may not be used to justify discrimination in the public spheres of commerce and governance.  Instances of institutions and individuals claiming a right to discriminate in the name of religion are not new.  Religious beliefs have been invoked to justify denying women the right to vote; to prohibit men and women of different races from getting married; and to support segregation in schools, businesses, and other public places.  Just as courts have held that those forms of discrimination are not permitted, even on the basis of sincerely held religious beliefs, so is discrimination based on sexual orientation unlawful.

In its ruling the court said, “Defendants’ refusal to ‘do the flowers’ for Ingersoll and Freed’s wedding based on her religious opposition to same sex marriage is, as a matter of law, a refusal based on Ingersoll and Freed’s sexual orientation in violation of the WLAD.”

Further, the court stated, “No Court has ever held that religiously motivated conduct, expressive or otherwise, trumps state discrimination law in public accommodations.  The Defendants have provided no legal authority why it should.”

As thrilled as we are by this ruling, we believe Arlene’s Flowers will appeal it, potentially all the way to the Washington Supreme Court. My colleagues and I, with full support of the firm, are committed to continuing the fight all the way on a pro bono basis. We are confident that the ruling will be upheld, and will keep GSBA members updated on new developments.


Mike Scott is a GSBA member and Chair of the Litigation Group at Seattle’s Hillis Clark Martin & Peterson P.S. His practice focuses on litigation involving a wide variety of commercial disputes in state and federal trial and appellate courts, and in arbitration and mediation forums.  

GSBA Meets with Congressman Adam Smith

On October 20 GSBA members from the 9^th congressional district met with Representative Adam Smith at the offices of the Northwest Network of BTLG Survivors of Abuse.

The group discussed the frustrating lack of progress on a federal Employment Non-Discrimination Act (ENDA) and the problematically broad religious exemptions within the current version. Rep. Smith admitted that the issue was not being addressed by this Congress, but that there was “no place for religious exemptions” in the bill. He agreed that taking people out of the job pool hurts our whole society, adding that “The strongest societies are those that discriminate the least.”

GSBA President & CEO Louise Chernin urged the Congressman to be wary of the increasing attempts by conservative groups and legislators to pass further so-called religious exemptions laws that would allow them to circumvent existing anti-discrimination bills. Monisha Harrell of Equal Rights Washington added that the religious exemptions clauses were of concern to many groups beyond the LGBT community, including women, racial minorities, and people who are divorced, among many others. Congressman Smith agreed and described them an example of religious fanaticism here in the United States. He stated that he wants "to be a voice where it is still needed, as much for healthcare as for gay rights,” listing areas that needed more attention, including equality and protection for the transgender community. He specifically mentioned the need to address wrongful discharges of transgender people serving in the military and continuing benefit inequities.

With the recent example of California’s opening of the utility contracts process to LGBT-certified businesses, George Pieper of Out Front Office Solutions informed the group and the Congressman about the need to proactively advocate for LGBT inclusion in minority contacting fairs and decisions.

Our hosts at the Northwest Network celebrated the 2013 reauthorization of the Violence Against Women Act, which was the very first federal protection based on sexual orientation or gender identity. They asked how we could build on that hard-fought success and extend it. The Congressman congratulated the group for effective advocacy in recent year, but again acknowledged that the party in control of the House of Representatives does not take up any legislation that they do not want to take up, meaning that probably there is little effective advocacy to be done on LGBT issues in the next term.

However, Rep. Smith urged the whole group to think long term, especially about how we address the critical issue of people being turned off government and civic engagement. He asked how progressives in general can prove once again that government does and can do good, as well as a broader narrative of what progressive politics are and how they can build a more just society. As always, advocates need to identify constituents of legislators who need to be convinced and have them share their personal stories.

You can find more information about Congressman Smith and contact his office here. He is the Ranking Member on the House Armed Services Committee.