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¦ From AFTER on PAGE 17 to marry based solely on personal disapproval of
its First Amendment defenses to a lawsuit brought same-sex marriage,” Pulver told the justices. “Thus,
under the California Unruh Civil Rights Act. Evan the allegations that Petitioner Kim Davis denied
Minton sued the hospital because it refused to per- respondents marriage licenses solely because of her
form an elective sterilization procedure. personal opposition to same-sex marriage—even
In the petition, Harris argues that performing after a district court and the Sixth Circuit told her
the procedure was prohibited by ethical and reli- she could not do so—support a denial of qualified
gious directives that govern Catholic health care immunity.”
institutions. The state court, he wrote in the peti- And lingering on the court’s docket for nearly a
tion, relied on the U.S. Supreme Court’s decision year is the return of Arlene’s Flowers v. Washington
in Employment Division v. Smith. If the justices in which a floral designer, citing her religious beliefs,
do not grant review outright, Harris added, they refused to create a floral arrangement for a same-sex
should hold the petition pending their decision in wedding.
the Fulton case. In June 2018, the justices granted Arlene’s Flowers
A response to the hospital petition is not due until first petition, vacated the judgment of the Wash-
July 15. Minton is represented by the ACLU’s Aman- ington Supreme Court and remanded the case for
da Goad. further consideration in light of the justices’s ruling
The court also has a petition that mixes religious in Masterpiece Cakeshop v. Colorado Civil Rights
beliefs, same-sex marriage and qualified immunity. Commission. The latter case involved a baker who
In that case, Kim Davis, a Kentucky county clerk, re- refused on religious grounds to make a wedding
fused to issue marriage licenses to same-sex couples cake for a same-sex couple. Both cases involved state
after the Supreme Court’s landmark same-sex mar- anti-discrimination laws.
riage ruling in 2015, Obergefell v. Hodges. In June 2019, the Washington Supreme Court
Two same-sex couples sued for damages against again rejected free speech and free exercise argu-
Davis, former clerk of Rowan County, Kentucky, ments by Arlene’s Flowers.
when she refused, for religious reasons, to issue any Governments “across the country have continued
marriage licenses under her name and authority fol- to slur, shun, punish, and threaten to imprison those
lowing the justices’ 2015 decision. The U.S. Court of whose faith compels them to honor their religious
Appeals for the Sixth Circuit rejected her arguments beliefs about marriage,” wrote Arlene’s Flowers
that she was entitled to qualified immunity. counsel Kristen Waggoner of Alliance Defending
“This case has always been about whether the law Freedom in the latest petition.
forces an ‘all or nothing’ choice between same-sex The state supreme court “fully embraced” the
marriage on the one hand, and religious liberty on Masterpiece Cakeshop ruling and call for respect for
the other, with no regard whatsoever for any reason- sincere religious beliefs and for gay persons seeking
able accommodation,” Davis’ lawyer, Mathew Staver goods and services in an open market, countered
of Liberty Counsel, wrote in the case Davis v. Er- state solicitor general Noah Purcell. “The court care-
fully reviewed and reconsidered its prior decision in
mold.
But the case does not involve whether people of light of this principle, ultimately reaffirming the trial
good conscience may disagree with the justices’ court in a unanimous decision,” he wrote in urging
same-sex marriage decision or whether private the justices to deny review.
businesses can refuse to provide goods or services in The ACLU’s Ria Tabacco Mar represents the gay
connection with same-sex marriages, Adam Pulver couple in the case is also opposing review.
of Public Citizen Litigation Group countered. ¦

“The straightforward issue in this case is wheth- Marcia Coyle, based in Washington, covers the
er, after Obergefell, it was clearly established that a U.S. Supreme Court. Contact her at mcoyle@alm.
state official cannot deprive citizens of their right com. On Twitter: @MarciaCoyle

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