By The Herald Editorial Board
We ask our courts to draw lines for us, particularly when one right appears to butt up against another.
Which is why two courts on either end of the country are being asked to clarify that line for us regarding First Amendment rights of free speech, freedom of expression, freedom of religion and civil rights protections under the Fourteenth Amendment.
It’s happenstance that one case involves coffee and the other baked goods. (Feel free to enjoy one or both while reading.)
The U.S. Supreme Court heard oral arguments Tuesday over whether the First Amendment protects a Colorado baker from discrimination claims made by a same-sex couple who wanted to purchase a cake for a reception celebrating their earlier wedding.
The baker, Jack Phillips, refused to make the cake because it would violate his religious beliefs regarding same-sex marriage and his right of self-expression. The gay couple, Charlie Craig and David Mullins, challenged Phillips before the Colorado Civil Rights Commission, claiming his refusal violated the “public accommodations” provisions of the 1964 Civil Rights Act, which holds that if something is sold to the general public, it can’t be denied to others, in this case a wedding cake for a gay couple.
The commission ruled against Phillips, a decision that was affirmed by the Colorado Court of Appeals.
Discussion and questions by the justices Tuesday put the court’s usual 4-4 split on display, with Justice Anthony Kennedy as the likely swing vote. An opinion is not expected for months, but the ruling’s effect would be far-reaching and could determine the fate of a Washington state case.
Earlier this year, the Washington state Supreme Court ruled against a Richland florist who refused to provide floral arrangements for a gay couple’s wedding in 2013, and upheld a $1,000 fine against her. Baronelle Stutzman, like Phillips, said she felt that providing the arrangement was incompatible with her Christian beliefs and that compelling her to provide a floral arrangement was a violation of her free speech rights.
In other words: Are wedding cakes and bouquets just that, or do they, because of the creativity involved in making them, speech that would imply an endorsement of the celebration?
The state Supreme Court and the U.S. Supreme Court are separate courts with far different compositions, but the state’s justices were clear why exceptions, as compelling a reason as religious freedom is, couldn’t be made for Stutzman and others who market their services to the general public.
“As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace,” the court wrote. “Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.”
Previously, the editorial board has supported public accommodation laws but wondered why a gay couple wouldn’t prefer to do business with a shop owner who actually would celebrate their union and leave those with prejudices to do without their business.
Serving up some coffee with our cake, came the news Monday that a federal judge had temporarily blocked the city of Everett’s regulations regarding the dress of baristas, specifically rules that forbid bikinis, lingerie and other revealing outfits.
Additional hearings are pending, but U.S. District Judge Marsha Pechman issued a preliminary injunction that bars Everett from enforcing the regulations passed earlier this year. The city already had suspended the dress code prior to the judge’s ruling. The regulations, the judge said in issuing the injunction, were likely too vague to stand up to legal scrutiny.
“While some customers view the bikinis as ‘sexualized,’ to others, they convey particularized values, beliefs, ideas and opinions; namely body confidence and freedom of choice,” Pechman wrote.
The issue here isn’t the expression of religious beliefs, but instead basic freedom of expression and whether the interests of community standards allow the city to restrict that expression. City officials have outlined the need as more than a desire for a little modesty; the regulation is needed to address criminal activity that has often been brewed at certain bikini barista stands.
Earlier, the editorial board sided with the city that its dress code isn’t an obtrusive restriction of free speech. What’s allowable behind the doors of a strip club is not acceptable when visible from a coffee stand situated in a parking lot, a matter of feet from public sidewalks and streets.
Not to prejudge the judge, but Pechman’s Monday ruling may mean Everett city officials will need to better focus the regulations on conduct more than attire. Although a challenge to a higher court brings with it entertaining thoughts of the U.S. Supreme Court taking up the matter.
Final rulings in both cases are some time away, but the message we can take away now is how vital a role the Constitution and the Bill of Rights play in our everyday lives and the importance of our respect regarding those rights for others.
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