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McKenna: Dissecting the most recent gay wedding court cases

A gay wedding cake. (AP)

The United State’s legal battles surrounding same-sex weddings and businesses seem to come down to two main points: free speech and conduct.

“They all break down along the lines of trying to distinguish between free speech, or compelled speech, and conduct; the way you conduct your business,” former Washington State Attorney General Rob McKenna told KIRO Radio’s Dave Ross.

In Arizona, a new case has emerged around a business that makes custom wedding invitations. It has opened up a new angle in the debate over what is speech, conduct, and legal business practices for a gay wedding. The Arizona business was allowed to refuse service to a gay couple on the grounds of the owners’ religious beliefs. McKenna notes that it was a narrow ruling on the Arizona Supreme Court.

“This would apply to the part that involves hand writing these wedding invitations,” McKenna said. “I guess they concluded that writing out the invitations amounts to free speech. Whereas in Washington state, the Arlene’s Flowers case has gone to the state supreme court, then up to the U.S. Supreme Court which sent it back to the state supreme court where the court’s ruling held for a second time.”

Ever since gay weddings were recognized as equal under the law in 2015, there have been a handful of legal cases dealing with the issue of businesses refusing service, citing religious beliefs. Washington is one such state where a case was argued, involving Arlene’s Flowers in Richmond.

Washington state’s supreme court ruling in the Arlene’s Flowers case found that Washington’s law barring discrimination and public accommodations does not allow for discriminating on the basis of sexual orientation. Barronelle Stutzman, owner of Arlene’s Flowers, plans to send her case back to the U.S. Supreme Court. Her case began when she refused to make a flower arraignment for a gay wedding.

“And refusing to provide flowers violates that discrimination bar, because the supreme court in our state believes that floral arraignments are conduct and not speech,” McKenna said.

“It does get a bit tricky when you start talking about products that might combine speech with something else,” he said. “For example, the Colorado wedding cake case. The wedding cake maker did not want to provide a wedding cake to celebrate a same-sex marriage … this is the only one of these cases the U.S. Supreme Court has issued a ruling on so far. They issued a very narrow ruling in favor of the cake maker when they found the Colorado Civil Rights Commission demonstrated anti-religious bias in the way they looked at the baker’s case.”

“They found that anti-religious bias undermined the commission’s decisions, so they remanded it back to Colorado,” he added. “And they did the same thing in the Arlene’s Flowers case.”

In Washington’s case, however, the court again found that there was no religious discrimination regarding Arlene’s Flowers. Rather, the state was neutrally enforcing anti-discrimination laws.

Listen to Dave Ross weekday mornings from 5-9 a.m. on KIRO Radio, 97.3 FM. Subscribe to the podcast here.

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