//  3/14/19  //  In-Depth Analysis

Washington State prohibits discrimination in public accommodations on the basis of sexual orientation. In Arlene's Flowers v. Washington (2017), the Washington Supreme Court held that the First Amendment does not entitle a florist to refuse service to a same-sex couple seeking flowers for their wedding. The U.S. Supreme Court granted, vacated, and reversed that decision, returning it to the state court for further review in light of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). Briefing is now underway about the implications (if any) of Masterpiece

Last week, joined by David Shieh (a colleague of mine at Kaplan Hecker & Fink LLP), I filed an amicus brief on behalf of leading church-state scholars—including Take Care contributors Micah Schwartzman, Nelson Tebbe, Richard Schragger, Chip Lupu, Bob Tuttle, Caroline Mala Corbin, Liz Sepper, and Larry Tribe. You can read our brief here

Our amicus brief concludes that Masterpiece does not require reversal. We focus mainly on the florist's claim that the state Attorney General evinced religious hostility in his enforcement of civil rights law. In addressing this claim, we make several key points:

(1) Institutional context matters. Unlike in Masterpiece, the defendant here is a prosecutor. As a matter of institutional competence and the separation of powers, the executive branch is entitled to a powerful presumption of regularity in exercising its enforcement discretion. Only the most extraordinary evidence of disparate intent and disparate impact can overcome that presumption. 

(2) There is no such evidence here. The florist objects to a supposed double standard, pointing to a single case where the state did not punish a store owner for denying service to people distributing flyers in which rainbow-colored hands drip blood onto an aborted fetus. But there is strong evidence that the store owner would have turned away anybody who distributed graphic anti-gay and anti-abortion fliers at his store, regardless of their religious or secular motives. As a result, there was no basis for concluding that he discriminated based on the protesters' religion. In asserting otherwise, the florist incorrectly equates anti-gay and anti-abortion messages with Christianity, presuming that anybody who opposes such messages must necessarily be engaged in anti-Christian discrimination. This equation of Christianity with homophobia and pro-life sentiment is offensive and unjustified.  

(3) Finally, although a demonstrated pattern of selective prosecution could support a free exercise claim, this is not that case. It hardly requires an expansive reading of precedent to recognize that a claim based on one alleged failure to prosecute—without credible proof of any discriminatory motive, or any evidence of a broader disparate impact in Washington—is deficient as a matter of law. 

Following below are the section of our amicus brief in which we more fully develop these arguments. Again, you can find the full amicus brief here

I. Defendants must provide “clear evidence” of intentional discrimination to establish a free exercise claim against the Attorney General based on selective enforcement.

Defendants portray their free exercise claim as a straightforward application of Masterpiece, but that overlooks the context in which their claim arises. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), involved a legislative body; Masterpiece involved an adjudicatory body. See Masterpiece, 138 S. Ct. at 1730 (emphasizing that free exercise analysis must account for the significant differences between legislative and adjudicative contexts). Here, Defendants contend that they were targeted by an executive actor: the Attorney General of Washington.

This is a distinction with a difference. Nowhere is that clearer than in Defendants’ contention that Masterpiece requires reversal on the ground that the Attorney General has selectively enforced the Washington Law Against Discrimination (WLAD). Earlier in this litigation, Defendants advanced a similar theory as an affirmative defense under the Equal Protection Clause. In a well-reasoned decision, Judge Ekstrom found that Defendants’ position could not stand. See State v. Arlene’s Flowers, Inc., No. 13-2-00871-5, 2015 WL 720213, at *27-28 (Wash. Super. Ct. Feb. 18, 2015). In light of that ruling, Defendants abandoned their selective prosecution argument on appeal—until now. Citing Masterpiece, and invoking a recent dispute over developments at Bedlam Coffee in Seattle, they have attempted to repackage their failed Equal Protection Clause defense as a winning Free Exercise Clause claim.  

This effort ignores Masterpiece’s clear sensitivity to the institutional context in which the government allegedly engaged in religious targeting. See Masterpiece, 138 S. Ct. at 1730. It also misses the U.S. Supreme Court’s frequent reliance on equal protection precedent to address discrimination claims under the Free Exercise Clause. See, e.g., id. at 1730 (drawing on equal protection principles to assess whether the Commission discriminated because of religion); Lukumi, 508 U.S. at 540 (Opinion of Kennedy, J.) (“In determining if the object of a law is a neutral one under the Free Exercise Clause, we can also find guidance in our equal protection cases.”).

Under black letter equal protection law governing claims against the executive branch, Defendants cannot prove religious hostility based on a pattern of selective enforcement decisions without meeting a “particularly demanding” standard. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 489 (1999). Specifically, Defendants must offer “‘clear evidence’ [of discrimination] displacing the presumption that a prosecutor has acted lawfully.” Id. (citation omitted).

This requirement stems from the U.S. Supreme Court’s recognition that executive bodies, unlike their adjudicative or legislative counterparts, are vested with broad prosecutorial discretion and charged with the sensitive task of determining which claims to pursue. See United States v. Armstrong, 517 U.S. 456, 465 (1996). In light of these separation-of-powers concerns, courts afford a “presumption of regularity . . . to prosecutorial decisionmaking,” Hartman v. Moore, 547 U.S. 250, 263 (2006), and are wary of second-guessing the manner in which prosecutors have “discharged their official duties,” Armstrong, 517 U.S. at 464 (citation omitted).

That presumption applies with full force against claims that officials acted with improper motives in deciding when and where to bring charges. To overcome the presumption of regularity—and consistent with settled equal protection principles—claimants must produce clear evidence of “both discriminatory effect and discriminatory intent.” United States v. Bass, 536 U.S. 862, 863 (2002) (emphasis added). By virtue of this “particularly demanding” standard, a sound “selective prosecution claim is a rara avis.” Reno, 525 U.S. at 489.  

Defendants ignore this line of precedent in their latest brief. Instead, they act as though Masterpiece suspended all of the usual rules applicable to claims that the Attorney General exercised his charging discretion in a discriminatory manner. In these respects, as in others that we identify below, Defendants fail to recognize that a finding of religious targeting under Masterpiece must respect the principles of constitutional law that ordinarily govern judicial review of executive branch decision-making.

II. The enforcement pattern here offers no evidence at all— let alone “clear evidence”—of religious targeting.

Under Masterpiece, Defendants cannot prevail without proof that they were targeted because of their religious beliefs. Defendants attempt to meet that burden by arguing that the Attorney General brought claims against them, but did not pursue claims against one other individual in Washington—namely, Ben Borgman, the owner of Bedlam Coffee. In their view, Borgman violated the WLAD when he refused to allow inside his coffeeshop flyers that contained an image of rainbow-colored hands dripping blood onto an aborted fetus. Defendants add that the Attorney General’s decision against charging Borgman reflects an improper double standard: florists who oppose same-sex marriage on religious grounds must provide flowers to gay couples for their weddings, but coffeeshop owners who oppose Christian messages may exclude them without penalty.

There are two principal problems with this argument. First, the comparison is entirely inapt. Borgman did not exclude the flyers because of their religious character—and thus did not violate the WLAD. Second, even if there were a plausible basis for the Attorney General to pursue WLAD claims against Borgman, a single non-enforcement decision by the Attorney General comes nowhere close to the clear evidence required by Armstrong to prove religious targeting under a selective enforcement theory.

A. The Attorney General’s Decision Against Prosecuting Borgman Does Not Demonstrate Religious Targeting

In September and October 2017, a group of anti-abortion protesters distributed flyers around Seattle. In these flyers, rainbow-colored hands drip blood onto an aborted fetus. Many people would reasonably find the flyers shocking, brutal, offensive, and deeply disturbing.

On October 1, 2017, persons distributing these flyers entered Borgman’s coffeeshop, Bedlam Coffee. Borgman asked them to leave; the situation rapidly deteriorated. Ultimately, Borgman expelled them from the store. In the course of doing so, he made a crude comment when one of the protestors invoked Jesus Christ. As the Attorney General recounts, Borgman subsequently gave a series of interviews in which he emphasized that he expelled the protesters because he opposes stirring up hate, inciting discontent, and distributing graphic content to children. See Wash. Resp. Br. at 21-24. Borgman also noted that some of the protesters had since returned to his store and received service without incident. See id. Borgman expressly disclaimed anti-religious motives for his conduct: “This wasn’t about Christianity. I’m not anti-Christian[.] . . . I’m anti-people who print garbage and spread it around the city. If you want to hand out stuff, you put it in an adult’s hand. You don’t leave it wrapped up like a toy for a child to find. That’s what it’s all about.” Id. at 23.

According to Defendants, Borgman’s case proves that the Attorney General does nothing about those who refuse to serve Christians, while actively pursuing charges against Christians who refuse to serve gay people. When tested against the facts, however, this analogy collapses.

To start, Borgman did not discriminate on the basis of religion. There is substantial evidence in the public record that Borgman would have refused entry to any customer, of any background (religious or not), who distributed flyers with such graphic and offensive content. There is no evidence that Borgman expelled the protesters because of the religious character of their anti-gay, pro-life message. Rather, the public record indicates that Borgman cared about what the flyers portrayed, their extremely graphic character, and the reactions they might incite. Store owners undoubtedly have the right to exclude persons and literature from their premises on the basis of such religion-neutral considerations. At the very least, the Attorney General could reasonably conclude that these facts—as known to the public—did not state a violation of the WLAD.

In contrast, Stutzman’s violation of the WLAD was clear as day. She declined to provide, to a same-sex couple, wedding flowers that she would readily have provided to an opposite-sex couple. Her refusal of service was thus based on Ingersoll and Freed’s sexual orientation. The Attorney General reasonably decided to prosecute this unlawful act.  

On these facts, there is no hint of discriminatory enforcement. The purposes of a public accommodations law like the WLAD include equal access to services in the market regardless of one’s race, gender, religion, or sexual orientation. Denying services on those bases strikes at the heart of equal access. By contrast, denying service for reasons that would apply equally to customers of any religion—or none at all—does not undermine the State’s interests. Religious objectors to abortion and same-sex marriage must be welcome in places of public accommodations to the same extent as all other customers; but they are not specially entitled to ignore neutral, non-religious criteria governing acceptable behavior in commercial settings.

In an effort to evade this reasoning, Defendants imply that Borgman necessarily engaged in anti-Christian discrimination when he refused to allow the protesters (and their flyers) in his store. This argument assumes that flyers expressing anti-gay, anti-abortion views are inextricably linked to Christian beliefs, just as same-sex marriage is inextricably linked to being gay. But that is simply incorrect. Virtually the only reason a person would want to have a same-sex wedding (or engage in same-sex intimacy) is because of his or her sexual orientation. That is why the U.S. Supreme Court has rejected status/conduct distinctions in gay rights cases. See Christian Legal Soc’y v. Martinez, 561 U.S. 661, 689 (2010). And it is why refusing to serve only same-sex couples—while offering identical services to opposite-sex couples—is understood to constitute a form of sexual orientation discrimination.

In contrast, people who object to same-sex marriage or abortion may do so for many reasons. It would be improper to lump them all together, acting as though their opinions are intrinsically linked to any specific religious or secular belief. The state, through its judges or otherwise, may not make conclusive presumptions about the moral beliefs associated with particular faiths. Yet Defendants’ brief asks this Court to do just that. In their telling, Borgman’s hostility to graphic pro-life/anti-gay protestors was necessarily anti-Christian—and must be treated as such under the WLAD—because espousing such messages is inherently Christian. This presumption apparently extends even to protesters who distribute shocking flyers.

At bottom, Defendants ignore the diversity of religious belief. On the one hand, many Christians support same-sex marriage and/or abortion rights. On the other hand, many persons (including Christians) who agree with the views held by Bedlam protestors might disagree with their chosen methods. Treating as anti-Christian any opposition to the means or ends of the Bedlam protestors is an effort to paint political disagreement as an attack upon Christians. This Court should emphatically reject such an effort.

Borgman’s decision to expel the protestors at Bedlam Coffee cannot be treated as unlawful in the absence of a reason to believe that he targeted the protesters because of their religion, instead of the many other neutral reasons applicable to this situation. It is also why the Attorney General’s decision not to charge Borgman is properly seen as a reasonable interpretation of the WLAD, rather than as an act proving religious animus.

B.  A Single Instance of Alleged Non-Enforcement Does Not Substantiate A Claim of Religious Targeting

Even if Defendants were correct about the Borgman case, it does not follow that the Attorney General has violated the Free Exercise Clause. A single instance of non-enforcement by the Attorney General, with virtually no other evidence of religious animus or targeting, is patently insufficient to demonstrate discriminatory enforcement under Reno and Armstrong.

To start, Defendants have offered an incredibly thin record. Having canvassed the state, Defendants manage to identify only one case that they allege the Attorney General should have pursued (but did not) under the WLAD. And the proper characterization of that case is deeply contested.

Although a demonstrated pattern of selective prosecution could support a free exercise claim, this is not that case. It hardly requires an expansive reading of Armstrong and Reno to recognize that a claim based on one alleged comparator—without credible proof of discriminatory motive, or any evidence of a broader disparate impact—is deficient as a matter of law. See Armstrong, 517 U.S. at 464. Defendants come nowhere close to offering the “clear evidence” required to displace the presumption of prosecutorial regularity and make out a selective prosecution claim.

Accepting Defendants’ position would create a wholly anomalous doctrine of free exercise selective enforcement—one that collapses disparate impact and disparate intent; incorporates a presumption against prosecutors; draws large inferences of official bad faith from miniscule evidence; and disregards the institutional expertise and checks-and-balances concerns found in the law of prosecutorial discretion.

Masterpiece offers no warrant for such free exercise exceptionalism, in which the normal rules of constitutional law are suspended or inverted. To the contrary, as noted above, Masterpiece emphasizes its own continuity with precedent, as well as the importance of institutional context and the relevance of equal protection precedents. See 138 S. Ct. at 1727-32. Adherence to Masterpiece thus requires rejection of Defendants’ position.    

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