Amicus Curiae Brief — Arlene's Flowers, Inc., dba Arlene's Flowers and Gifts, et al., Petitioners v. Washington, et al.

No. 19-333

In the

Supreme Court of the United States

__________________________________________

ARLENE’S FLOWERS, INC., DBA ARLENE’S

FLOWERS AND GIFTS, et al.,

Petitioners,

v.

STATE OF WASHINGTON, et al.,

Respondents.

__________________________________________

On Petition for Writ of Certiorari to the

Supreme Court of Washington

__________________________________________

BRIEF OF AMICI CURIAE

THE ETHICS AND RELIGIOUS LIBERTY

COMMISSION OF THE SOUTHERN BAPTIST

CONVENTION, THE ISLAM AND RELIGIOUS

FREEDOM ACTION TEAM OF THE

RELIGIOUS FREEDOM INSTITUTE, AND THE

JEWISH COALITION FOR RELIGIOUS

LIBERTY IN SUPPORT OF PETITIONERS

__________________________________________

DAVID H. THOMPSON

Counsel of Record

JOHN D. OHLENDORF

HALEY N. PROCTOR

COOPER & KIRK, PLLC

1523 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amici Curiae

October 15, 2019

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICI CURIAE ............................... 1

INTRODUCTION ....................................................... 2

SUMMARY OF ARGUMENT .................................... 4

ARGUMENT .............................................................. 5

I.

THE FIRST AMENDMENT’S RELIGION CLAUSES

BAR THE GOVERNMENT FROM COMPELLING

PARTICIPATION IN RELIGIOUS EVENTS. ................. 5

II.

THE WASHINGTON COURT’S INJUNCTION

VIOLATES THIS LIMIT BY REQUIRING PETITIONER

TO ATTEND AND PARTICIPATE IN RELIGIOUS

CEREMONIES. ..................................................... 10

A. All of the major Western religions,

including Petitioner’s faith, view

weddings as sacred events with

inherent religious significance. ............. 11

1. Judaism. ........................................... 11

2. Christianity. ..................................... 14

3. Islam. ................................................ 16

B. The injunction compels Petitioner to

participate in same-sex weddings she

finds objectionable as a matter of

conscience. .............................................. 19

CONCLUSION ......................................................... 25

ii

TABLE OF AUTHORITIES

Page

CASES

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ............................................... 25

Cantwell v. Connecticut,

310 U.S. 296 (1940) ................................................. 6

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) ..................................................... 7

Employment Division v. Smith,

494 U.S. 872 (1990) ................................................ 6

Engel v. Vitale,

370 U.S. 421 (1962) ................................................. 9

Lee v. Weisman,

505 U.S. 577 (1992) ............................... 2, 3, 4, 9, 10

Marsh v. Chambers,

463 U.S. 783 (1983) ................................................. 8

Masterpiece Cakeshop, Ltd. v. Colorado Civil

Rights Comm’n,

138 S. Ct. 1719 (2018) ............................................. 6

Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000) ................................................. 5

School Dist. of Abington Twp., Pa. v. Schempp,

374 U.S. 203 (1963) ................................................. 9

iii

CONSTITUTIONS

U.S. CONST.

amend. I ............................................................... 2, 5

amend. XIV .............................................................. 5

MASS. CONST. art. III (1780) ...................................... 8

STATUTES AND RULES

Act for Establishing Religious Freedom (1785)

art I .......................................................................... 2

art. II ................................................................ 2, 8, 9

CODE OF CANON LAW Can. 1124 ............................... 15

1 Eliz. 1, c.2 (1559) ................................................. 6, 7

3 THE STATUTES AT LARGE, BEING A COLLECTION

OF ALL THE LAWS OF VIRGINIA 170–71

(W.W. Hening ed., 1823).......................................... 7

SUP. CT. R.

10(c) .......................................................................... 4

37.2(a) ...................................................................... 1

37.6 ........................................................................... 1

OTHER AUTHORITIES

2 Corinthians 6:14–18 .............................................. 15

Deuteronomy

7:3 ........................................................................... 13

24:1 ......................................................................... 11

Ephesians 5:22–33 ................................................... 14

iv

Exodus 20:2 .............................................................. 25

Genesis

1:28 ......................................................................... 12

2:18 ......................................................................... 12

2:24 ................................................................... 11, 14

24:58 ....................................................................... 11

John

2:1–11 ..................................................................... 14

3:28–29 ................................................................... 14

Leviticus 20:26.......................................................... 25

Matthew

9:15 ......................................................................... 14

19:6 ......................................................................... 14

25:1–13 ................................................................... 14

Quran

2:221 ....................................................................... 18

5:5 ........................................................................... 18

30:21 ....................................................................... 17

60:10 ....................................................................... 18

Revelation 21:2 ......................................................... 14

1 ANNALS OF CONGRESS

(Joseph Gales ed., 1834) .......................................... 9

A Christian View of Civil Marriage, FOCUS ON THE

FAMILY, https://bit.ly/2IgJHMc ............................. 16

A Service of Christian Marriage, DISCIPLESHIP

MINISTRIES: THE UNITED METHODIST CHURCH,

https://bit.ly/2nedUUZ ........................................... 15

v

Ayatollah Ibrahim Amini, The Purpose of

Marriage in Islam, ISLAMIC INSIGHTS,

https://bit.ly/2MdzCkl ............................................ 17

BOOK OF COMMON PRAYER ........................................ 22

CATECHISM OF THE CATHOLIC CHURCH

(2d ed. 1994) ..................................................... 15, 16

Customs of Shavuot, ORTHODOX UNION

(June 30, 2006), https://bit.ly/2pXHzCI ................ 21

Dr. Russell Moore, Should a Minister Officiate

at the Weddings of Unbelievers?

(Sept. 11, 2008), https://bit.ly/2pCuyOJ................ 15

(NUHP%XùUD(NLQFL, Marriage ceremonies in

Islam, DAILY SABAH (Oct. 19, 2017),

https://bit.ly/2ICSx7p....................................... 18, 19

EVANGELICAL LUTHERAN WORSHIP........................... 22

GEORGE MONGER, MARRIAGE CUSTOMS OF THE

WORLD (2004) ................................................... 16, 18

JOSEPH H. HERTZ, THE AUTHORIZED DAILY

PRAYER BOOK (1965) .............................................. 12

Lauren Dubell-Beadle, Your Chuppah—

Everything You Need To Know, SMASHING THE

GLASS (Apr. 17, 2018), https://bit.ly/2nlSDbQ ...... 21

Marriage Guidelines, ST. MARY OF THE

ASSUMPTION CATHOLIC CHURCH,

https://bit.ly/34XDoHf............................................ 21

Marriage, THE CHURCH OF ENGLAND,

https://bit.ly/2o0I5zs ........................................ 15, 16

vi

Menachem Posner, What is Shabbat?,

CHABBAD.ORG, https://bit.ly/2IjlTrp....................... 22

Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I:

Establishment of Religion,

44 WM. & MARY L. REV. 2105 (2003) ................... 7, 8

Nikah (Marriage) & Walima (Reception) in Islam,

CENTRAL-MOSQUE.COM, https://bit.ly/2w9s3Dy ... 18,

19

Planning a Catholic Wedding, FOR YOUR

MARRIAGE, https://bit.ly/2OdN0aR........................ 15

Planning Your Catholic Wedding, CATHOLIC

WEDDING HELP, https://bit.ly/2McDZvY ............... 21

Rabbi Maurice Lamm, Choosing the Date for

the Jewish Wedding, CHABAD.ORG,

https://bit.ly/2nLy2OF ........................................... 12

Rabbi Maruice Lamm, Designing the Jewish

Wedding: The Rabbi, CHABAD.ORG,

https://bit.ly/2mXpPpU .......................................... 13

Rabbi Maurice Lamm, Fasting on the Jewish

Wedding Day, CHABAD.ORG,

https://bit.ly/2psBzBO ..................................... 12, 13

Rabbi Maurice Lamm, Jewish Betrothal

Blessings, CHABAD.ORG, https://bit.ly/2oB9Myy ... 13

Rabbi Maurice Lamm, The Bridal Canopy (Chuppah), CHABAD.ORG, https://bit.ly/30QU1kE .......... 21

vii

Rabbi Maurice Lamm, The Jewish Betrothal

(Kiddushin), CHABAD.ORG,

https://bit.ly/2nZhna6 ............................................ 11

Rabbi Maurice Lamm, The Jewish Marriage

Ceremony, CHABAD.ORG, https://bit.ly/2nV13aw .. 11

Rabbi Maurice Lamm, The Jewish Nuptials

(Nissuin), CHABAD.ORG,

https://bit.ly/2n15JLv ...................................... 11, 12

Rabbi Maurice Lamm, The Prayers on the

Jewish Wedding Day, CHABAD.ORG,

https://bit.ly/2oyOtxE ............................................ 13

Rabbi Shlomo Shulman, Guide to the Jewish

Wedding, AISH.COM (June 30, 2001),

https://bit.ly/2MDeYvM ............................. 12, 13, 14

Rev. Brian Croft, When Should a Pastor Say

‘No’ to a Wedding?, THE GOSPEL COALITION

(Feb. 19, 2016), https://bit.ly/2oanFnp ................. 15

Rev. Douglas Escue, The Colors of the Liturgical

Seasons, LUTHERAN CHURCH MISSOURI SYNOD,

https://bit.ly/2OhYxGg ........................................... 21

SANFORD H. COBB, THE RISE OF RELIGIOUS

LIBERTY IN AMERICA 513 (1902)............................... 8

Saqib Saab, Weddings: To Separate Or Not To

Separate, MUSLIM MATTERS (May 22, 2008),

https://bit.ly/2OjHeob ............................................ 19

Saulat Pervez, Family: The Building Blocks of

Society, WHYISLAM.ORG, https://bit.ly/2LKT7Sf ... 17

viii

Shaahima Fahim, Must Wedding Bells Go

Ka-Ching?, MUSLIM MATTERS (Nov. 18, 2013),

https://bit.ly/2ANxB93 ........................................... 19

Suzana Nabil Saad, How Does a Muslim Get

Married?, ABOUTISLAM.NET (Jan. 1, 2017),

https://bit.ly/2ADNgIf ...................................... 17, 18

Tariq Nisar Ahmed, Fiqh of Love, MUSLIM

MATTERS (May 11, 2009),

https://bit.ly/2oOvgYW .......................................... 17

Why Not Milk & Meat?, AISH.COM,

http://bit.ly/35fCDcA .............................................. 22

1

INTEREST OF AMICI CURIAE 1

Amici are various organizations dedicated to promoting religious freedom. The Ethics and Religious

Liberty Commission (“ERLC”) is the moral concerns

and public policy entity of the Southern Baptist Convention, the nation’s largest Protestant denomination,

with over 46,000 churches and 15.2 million members.

The ERLC is charged by the Convention with addressing public policy affecting such issues as religious liberty, marriage and family, the sanctity of human life,

and ethics. The Islam and Religious Freedom Action

Team of the Religious Freedom Institute amplifies

Muslim voices on religious freedom, seeks a deeper

understanding of the support for religious freedom inside the teachings of Islam, and protects the religious

freedom of Muslims. The Jewish Coalition for Religious Liberty is an incorporated group of lawyers, rabbis, and communal professionals who practice Judaism and are committed to defending religious liberty.

Although this case involves Christian religious

beliefs, the decision below is of great concern to all

faith groups, including especially members of minority religions, who depend upon the Religion Clauses to

1 Pursuant to SUP. CT. R. 37.2(a), Amici certify that counsel

of record for all parties received timely notice of the intent to file

this brief, and that all parties have given written or blanket consent to the filing of this brief. Pursuant to SUP. CT. R. 37.6, Amici

certify that no counsel for any party authored this brief in whole

or in part, no party or party’s counsel made a monetary contribution to fund its preparation or submission, and no person other

than amici or their counsel made such a monetary contribution.

2

protect their rights of conscience. Amici therefore urge

the Court to grant certiorari and vacate the injunction

that coerces Petitioner to attend and participate in religious ceremonies.

INTRODUCTION

In 1779, Thomas Jefferson staked out a bold position on the relationship between church and state:

Because “Almighty God hath created the mind free,

and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint, . . . no man [should] be compelled to frequent

. . . any religious worship, place, or ministry whatsoever.” Act for Establishing Religious Freedom art. I &

II (1785). When the People enshrined the First

Amendment into their fundamental charter, they

made this principle the law of the land—barring the

state from enacting any “establishment of religion, or

prohibiting the free exercise thereof.” U.S. CONST.

amend. I.

The freedom of conscience secured by these Religion Clauses was a significant, and deliberate, break

with the past. For in earlier times, Governments (including the American States) had often compelled

their citizenry to attend worship regularly. In direct

contrast to these earlier intrusions upon liberty of conscience, “[i]t is beyond dispute” that the First Amendment takes these types of laws off the table, “guarantee[ing] that government may not coerce anyone to . . .

participate in religion or its exercise.” Lee v. Weisman,

3

505 U.S. 577, 587 (1992); see also id. at 640–42 (Scalia,

J., dissenting) (“no quarrel” with that proposition).

Yet the Washington courts in this case imposed

a permanent injunction flatly contrary to this bedrock

principle. That injunction requires Petitioner—owner

and operator of a floral shop that specializes in creating custom floral arrangements for weddings—to offer

her services “on the same terms” to opposite-sex and

same-sex couples, without “any disparate treatment.”

Pet.App.140a. Because one of the services Petitioner

offers is the “full wedding support” package—which

entails attending the wedding, “participat[ing] in rituals that occur” there, and “do[ing] whatever it takes

to make the entire ceremony an enjoyable and successful event,” Pet.App.383a–84a—the effect of this

injunction is to require Petitioner to attend and participate in same-sex weddings.

That violates Petitioner’s core rights of conscience. Throughout history, marriage has been recognized as an event of special religious significance. Indeed, all three major Western religions view the wedding ceremony as an inherently spiritual event—an

opportunity for believers to worship God and celebrate

an institution that, according to these beliefs, He instituted and ordained. For many religious believers,

attending and participating in these ceremonies is

thus a matter of deep spiritual significance—and forcing them to attend and participate in marriage ceremonies they object to as a matter of conscience violates their most deeply held beliefs. In Petitioner’s

case, as she explains, she believes that participating

4

in same-sex weddings “would go against God’s definition of marriage,” Pet.App.373a, would be “dishonoring to God,” and would make her “accountable to the

Lord,” Pet.App.387a. Forcing Petitioner to attend

wedding ceremonies she finds deeply objectionable as

a matter of conscience would thus “coerce [her] to support or participate in” religious ceremonies, in violation of our deepest Constitutional commitments. Lee,

505 U.S. at 587.

Washington State can no more compel dissenting

citizens to attend and participate in weddings they

find objectionable as a matter of conscience than it can

fine them for missing Mass on Sunday. This Court

should grant the writ. SUP. CT. R. 10(c).

SUMMARY OF ARGUMENT

I. Perhaps the most central guarantee of the

First Amendment’s Religion Clauses is that the State

cannot compel citizens to attend and participate in religious services they find objectionable as a matter of

conscience. Compulsory religious attendance was the

signal feature of the religious establishments the

First Amendment was designed to forbid. And the

freedom not to engage in religious observances has

long been part of the unquestioned bedrock of this

Court’s religious liberty jurisprudence. As the Court

explained (on this point, without dissent) in Lee v.

Weisman, “[i]t is beyond dispute that, at a minimum,

the Constitution guarantees that government may not

coerce anyone to support or participate in religion or

its exercise.” 505 U.S. at 587.

5

II. The injunction imposed by the Washington

courts below directly violates this settled rule. All of

the major Western religions view the wedding ceremony as an inherently religious event. Weddings generally are led by spiritual leaders and involve explicit

acts of worship such as public prayer, benedictions,

scripture readings, and the singing of hymns. But the

injunction at issue in this case would compel Petitioner, by force of law, to attend and participate in

these religious ceremonies—even when she objects to

doing so, as a matter of conscience, because she sincerely believes her involvement “would go against

God’s definition of marriage.” Pet.App.373a. That result violates both Religion Clauses, and this Court

cannot allow it to stand.

ARGUMENT

I.

THE FIRST AMENDMENT’S RELIGION CLAUSES

BAR THE GOVERNMENT FROM COMPELLING PARTICIPATION IN RELIGIOUS EVENTS.

The Religion Clauses of the First Amendment establish the twin commands that “Congress shall make

no law respecting an establishment of religion, nor

prohibiting the free exercise thereof.” U.S. CONST.

amend. I; see also U.S. CONST. amend. XIV. The Establishment and Free Exercise Clauses not only share

the Bill of Rights’ first sentence; they share a “common purpose”: “to secure religious liberty.” Santa Fe

Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000) (quotation marks omitted). When the State acts to require

an individual, by force of law, to participate in a

6

religious ceremony that is contrary to her beliefs, it

has violated both Clauses in a single stroke. For the

Establishment Clause does not brook the “compulsion

by law of the acceptance of any creed or the practice of

any form of worship.” Cantwell v. Connecticut, 310

U.S. 296, 303 (1940). And the Free Exercise Clause

likewise forbids the Government from requiring individuals to participate in religious ceremonies they

find objectionable as a matter of conscience. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Comm’n, 138 S. Ct. 1719, 1727 (2018) (“[I]t can be assumed that a member of the clergy who objects to gay

marriage on moral and religious grounds could not be

compelled to perform the ceremony without denial of

his or her right to the free exercise of religion.”). 2

The history of the Religion Clauses demonstrates

that the freedom not to attend religious ceremonies

was the very paradigm of the liberty of conscience

those provisions were designed to secure. At the time

of the Founding, English law had since 1559 required

“all and every person” to “resort to their parish church

or chapel . . . upon every Sunday” to “abide orderly and

soberly during the time of the common prayer, preachings, or other service of God” under pain of a fine of

As the Court’s statement in Masterpiece Cakeshop reflects, the Free Exercise Clause encompasses a historicallyrooted prohibition against laws that coerce individuals to engage

in religious worship or practices that is distinct from its constraints on laws that regulate physical acts associated with the

“exercise of religion,” see Employment Division v. Smith, 494 U.S.

872 (1990).

2

7

“twelve pence.” 1 Eliz. 1, c.2 (1559). “Established religion came to these shores with the earliest colonists,”

Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 WM. & MARY L. REV. 2105, 2115 (2003), and

while the strength of these establishments waned

over time during the pre-Revolutionary and Revolutionary periods, even “[a]t the founding, at least six

States had established religions.” Elk Grove Unified

Sch. Dist. v. Newdow, 542 U.S. 1, 50 (2004) (Thomas,

J., concurring). The men who wrote and adopted the

First Amendment at the end of the eighteenth century

were exceedingly familiar with established churches,

and they were well aware that the hallmark of the

type of practice they meant the Religion Clauses to

bar was forced attendance at, and participation in, religious services.

Virginia law, for instance, until 1776 had required “any person or persons of the age of twenty one

years or more” to “resort to their parrish church or

chappel once in two months to hear devine service

upon the sabbath day,” on pain of forfeiting “five shillings or fifty pounds of tobacco” (though dissenters

from the established Anglican church were permitted

to attend other authorized Protestant sects). 3 THE

STATUTES AT LARGE, BEING A COLLECTION OF ALL THE

LAWS OF VIRGINIA 170–71 (W.W. Hening ed., 1823).

The requirement was robustly enforced; “[i]n a study

of grand jury presentments in Virginia between 1720

and 1750, missing church was the most common indicted offense in eleven of the twenty-two counties; it

8

was the second most common offense in seven of the

others.” McConnel, supra, at 2145.

Other States enforced similar laws making

church attendance compulsory. Massachusetts’s 1780

Constitution (drafted principally by John Adams) expressly authorized the legislature “to enjoin upon all

the subjects an attendance upon the instructions of

[Protestant teachers of piety], at stated times and seasons, if there be any on whose instructions they can

conscientiously and conveniently attend.” MASS.

CONST. art. III (1780). And Connecticut imposed a

“penalty for non-attendance upon Church” until 1816.

SANFORD H. COBB, THE RISE OF RELIGIOUS LIBERTY IN

AMERICA 513 (1902).

The drafting history of the First Amendment

leaves no doubt that the Framers had such laws compelling church attendance front and center in their

minds when they enacted the Federal Constitution’s

religious liberty guarantee. This Court has often

looked to Virginia’s disestablishment of religion as especially instructive evidence of the First Amendment’s meaning, “because that colony took the lead in

defining religious rights.” Marsh v. Chambers, 463

U.S. 783, 788 n.5 (1983). One of the key documents in

Virginia’s disestablishment was the Act Establishing

Religious Freedom—written by Jefferson in 1779 and

finally adopted in 1785—which made clear that the

foundation-stone of religious liberty was the principle

“[t]hat no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” Act for Establishing Religious Freedom art. II

9

(1785), available at https://bit.ly/2pnvu9M. Indeed, in

introducing his draft of the proposed Religion Clauses

before the First Congress, James Madison explained

that “he apprehended the meaning of the words to be,

that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel

men to worship God in any manner contrary to their

conscience.” 1 ANNALS OF CONGRESS 758 (Joseph Gales

ed., 1834).

This Court has long understood that the freedom

not to participate in mandatory religious observance

is the bedrock of liberty of conscience. One of the earliest principles to emerge as the Court’s religious liberty jurisprudence began to take modern form in the

1960s was the rule that the Government cannot require schoolchildren to participate in “religious activity” such as compulsory prayer. Engel v. Vitale, 370

U.S. 421, 424 (1962). Such “require[d] religious exercises,” this Court insisted, were “in direct violation” of

the Establishment and Free Exercise Clauses. School

Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203,

224 (1963). And while the fractured opinions in Lee v.

Weisman reflect a variety of approaches to the Religion Clauses, one of the few points of common ground

in that case was that “[i]t is beyond dispute that, at a

minimum, the Constitution guarantees that government may not coerce anyone to support or participate

in religion or its exercise.” 505 U.S. 577, 587 (1992);

see also id. at 604 (Blackmun, J., concurring) (First

Amendment bars “Government pressure to participate in a religious activity”); id. at 609 (Souter, J.,

10

concurring) (Government cannot “coerce religious observance”); id. at 640–41 (Scalia, J., dissenting) (“The

coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy

and of financial support by force of law and threat of

penalty. Typically, attendance at the state church was

required . . . .”).

Determining the proper scope of the Religion

Clauses is often a difficult endeavor. But under the

text and original meaning of those provisions, and the

longstanding precedent interpreting them, there is at

least one easy rule: the Government cannot compel individuals to attend or participate in religious observances to which they object as a matter of conscience.

II.

THE WASHINGTON COURT’S INJUNCTION VIO-

LATES THIS LIMIT BY REQUIRING PETITIONER TO

ATTEND AND PARTICIPATE IN RELIGIOUS CEREMONIES.

The injunction Washington sought and obtained

in this case flagrantly violates this simple, bedrock

rule. All three of the major Western religions—including Petitioner’s own Christian faith—view the marriage ceremony as an inherently sacred event, suffused with religious significance. Washington’s injunction would force Petitioner to attend and participate in these inescapably religious ceremonies—specifically including same-sex wedding ceremonies, to

which Petitioner objects as a matter of deep religious

commitment. That result cannot stand. Washington

can no more require its citizens to attend and

11

participate in wedding ceremonies than it could fine

dissenters for failing to attend Church on Sunday.

A. All of the major Western religions, including Petitioner’s faith, view weddings as sacred events with inherent

religious significance.

1. Judaism.

The traditional Jewish wedding, as currently

practiced in the Western world, combines two separate stages or ceremonies: Kiddushin, or the formal

betrothal, and nissuin, or the nuptials. Rabbi Maurice

Lamm, The Jewish Marriage Ceremony, CHABAD.ORG,

https://bit.ly/2nV13aw. “The Betrothal portion of the

ceremony consists of a preliminary benediction, the

marriage proposal, and the giving of the ring.” Rabbi

Maurice Lamm, The Jewish Betrothal (Kiddushin),

CHABAD.ORG, https://bit.ly/2nZhna6. Although they

vary across branches of Judaism, the customs and

practices surrounding Kiddushin are rooted in the Bible. See Genesis 24:58, Deuteronomy 24:1. Once the

betrothal is complete, the ceremony concludes with

the nuptial ceremony, in which “the couple stands under the chuppah [a special canopy], [and] the officiant

recites the seven marriage blessings.” Rabbi Maurice

Lamm, The Jewish Nuptials (Nissuin), CHABAD.ORG,

https://bit.ly/2n15JLv. Both elements of the wedding

ceremony are suffused with religious significance.

Jews believe that marriage itself was instituted

by God, Genesis 2:24, and is a divine blessing that

both provides companionship for the husband and

12

wife and ensures for the procreation of future generations, Genesis 1:28, 2:18. Marriage is viewed as a covenant, and it is patterned after the paradigmatic covenant, in the Jewish tradition, “the covenant of G-d

and His people, Israel.” Rabbi Lamm, supra, The Jewish Nuptials (Nissuin). Moreover, the wedding day itself has special religious significance, since it “is considered a personal Yom Kippur for the chatan (Hebrew for groom) and kallah (bride), for on this day all

their past mistakes are forgiven as they merge into a

new, complete soul.” Rabbi Shlomo Shulman, Guide to

the Jewish Wedding, AISH.COM (June 30, 2001),

https://bit.ly/2MDeYvM.

The religious significance of the wedding ceremony in the Jewish tradition is underscored by the

many religious rules and limits that govern the wedding and the dates on which it may be scheduled under Jewish law. Rabbi Maurice Lamm, Choosing the

Date for the Jewish Wedding, CHABAD.ORG,

https://bit.ly/2nLy2OF. Moreover, the central declaration that the groom makes to the bride is only one sentence long, declaring that the betrothal is being conducted “according to the law of Moses and of Israel.”

JOSEPH H. HERTZ, THE AUTHORIZED DAILY PRAYER

BOOK 1011 (1965). Although not every branch of Judaism follows it, “an ancient tradition advises bride

and groom to fast on the day of their wedding”—in

part, again, because the event is viewed as “a day of

forgiveness” for the bride and groom, making the

event a time “of spiritual inventory and of repentance,

akin to Yom Kippur.” Rabbi Maurice Lamm, Fasting

13

on the Jewish Wedding Day, CHABAD.ORG, https://

bit.ly/2psBzBO. And “[i]t is customary for the chatan

and kallah not to see each other for one week preceding the wedding.” Rabbi Shulman, supra, Guide to the

Jewish Wedding.

Punctuating the inherently religious nature of

marriage in orthodox Judaism, intermarriage between a Jew and a member of any other religion is

strictly forbidden. Deuteronomy 7:3.

The wedding itself “is not simply a beautiful ceremony—it is an intricate web of laws and customs

that the Torah has ordained and society has developed for the protection of the family and social morality.” Rabbi Maruice Lamm, Designing the Jewish

Wedding: The Rabbi, CHABAD.ORG, https://bit.ly

/2mXpPpU. Accordingly, the wedding generally must

be overseen by a Rabbi—who “has no part in effecting

the marriage itself,” but who is critical to ensuring

“that the marriage process is executed according to

the laws of Moses and Israel.” Id. And the ceremony

includes multiple elements of religious worship. Specific prayers are recited. Rabbi Maurice Lamm, The

Prayers on the Jewish Wedding Day, CHABAD.ORG,

https://bit.ly/2oyOtxE. The officiating rabbi reads a

betrothal blessing invoking “the L-rd our G-d, King of

the universe” who “has sanctified His people Israel.”

Rabbi Maurice Lamm, Jewish Betrothal Blessings,

CHABAD.ORG, https://bit.ly/2oB9Myy. Rabbis, members of the couple’s family, and/or the couple’s friends

recite seven benedictions meditating on “our faith in

God as Creator of the world, Bestower of joy and love,

14

and the ultimate Redeemer of our people.” Rabbi

Shulman, supra, Guide to the Jewish Wedding.

The wedding thus occupies a place of deep religious significance, according to traditional Judaism.

The ceremony is a spiritual event “full of meaningful

rituals, symbolizing the beauty of the relationship of

husband and wife, as well as their obligations to each

other and to the Jewish people.” Rabbi Shulman, supra, Guide to the Jewish Wedding.

2. Christianity.

While many of its specific understandings and

practices differ from Judaism, the traditional Christian understanding of the wedding unites with the

Jewish faith in viewing the event as an inherently religious ceremony. Like Jews, most Christians view

marriage as a relationship instituted by God at the

time of the creation of the world. Genesis 2:24. Christ

reaffirmed the divine origin of the institution, teaching “what God has joined together, let not man separate.” Matthew 19:6. Jesus performed his first miracle

at a wedding in Cana of Galilee. John 2:1–11. And for

many Christians, marriage takes on a special religious significance because of Christ’s repeated statements comparing Himself to a Bridegroom, see Matthew 9:15, 25:1–13; see also John 3:28–29, and St.

Paul’s comparison of the relationship between husband and wife as a symbol of the relationship between

Christ and the Church. Ephesians 5:22–33; see also

Revelation 21:2; Pet.App.385a (noting that marriage

has special significance for Petitioner because “the

15

Bible compares marriage to the relationship between

Jesus and His Church”).

Like Judaism, Christianity places certain restrictions on weddings that reinforce their religious

significance. Many Christian denominations either

will not perform a wedding between unbelievers, or

between a believer and someone who is not a member

of the faith, or require special permission for such a

marriage to occur. See 2 Corinthians 6:14–18; CODE

OF CANON LAW Can. 1124, available at https://

bit.ly/2ptmqjI; Dr. Russell Moore, Should a Minister

Officiate at the Weddings of Unbelievers? (Sept. 11,

2008), https://bit.ly/2pCuyOJ. Many church bodies

will also decline to conduct a wedding between persons they believe are engaged in an open, public sin

such as cohabitation before marriage. Rev. Brian

Croft, When Should a Pastor Say ‘No’ to a Wedding?,

THE GOSPEL COALITION (Feb. 19, 2016), https://bit.ly/

2oanFnp.

The traditional Christian marriage ceremony is

itself an inherently religious event. Indeed, Roman

Catholics consider marriage to be a sacrament. CATECHISM OF THE CATHOLIC CHURCH 400 (2d ed. 1994). A

Christian wedding ordinarily incorporates all of the

features of a worship service: readings from the Bible,

prayers led by the minister, the singing of Christian

hymns, and the delivery of a homily or sermon. Planning a Catholic Wedding, FOR YOUR MARRIAGE,

https://bit.ly/2OdN0aR; A Service of Christian Marriage, DISCIPLESHIP MINISTRIES: THE UNITED METHODIST CHURCH, https://bit.ly/2nedUUZ; Marriage, THE

16

CHURCH OF ENGLAND, https://bit.ly/2o0I5zs. The wedding may also include the celebration of Holy Communion. CATECHISM OF THE CATHOLIC CHURCH, supra,

at 405.

The traditional Christian wedding thus is ordinarily conducted in a house of worship and officiated

by a religious minister. Cf. Pet.22 (noting that Respondents Ingersoll and Feed’s marriage was led by a

minister). But even when a wedding is conducted

solely by civil authorities, and is designed to be devoid

of outward religious content, the event still retains intense religious significance for many Christians.

Whatever the ceremonial trappings, it remains, in

many Christian church bodies, an institution established and ordained by God, a symbol of the relationship between Christ and the Church, and a sacred covenant binding in the eyes of God. See A Christian View

of Civil Marriage, FOCUS ON THE FAMILY,

https://bit.ly/2IgJHMc; CATECHISM OF THE CATHOLIC

CHURCH, supra, at 400.

3. Islam.

As in the Christian and Judaic traditions, in Islam a wedding is an act of worship with deep religious

significance. Due to the wide geographic compass of

the Muslim world, there are a variety of differing cultural traditions associated with Islamic weddings; a

Muslim wedding in Indonesia may feature many traditional customs not present in an Egyptian wedding.

GEORGE MONGER, MARRIAGE CUSTOMS OF THE WORLD

160 (2004). Yet there remains a core of shared

17

marriage traditions and practices, and part of that

core is the uniform belief that a wedding is a religious

event.

Much like the other two Abrahamic faiths, Islam

views marriage as a divinely-instituted blessing; according to the Quran, “[a]nd of [God’s] signs is that He

created for you from yourselves mates that you may

find tranquility in them; and He placed between you

affection and mercy.” Quran 30:21. In the Islamic

faith, marriage is viewed as “a sacred social contract

between a man and a woman,” Saulat Pervez, Family:

The Building Blocks of Society, WHYISLAM.ORG,

https://bit.ly/2LKT7Sf, and because of the many blessings it brings, it is affirmatively encouraged by the

Muslim faith, Ayatollah Ibrahim Amini, The Purpose

of Marriage in Islam, ISLAMIC INSIGHTS, https://

bit.ly/2MdzCkl. Chief among these blessings, according to Islamic belief, is the role of marriage in

strengthening the spiritual life of both husband and

wife. Id. Indeed, the Prophet Muhammad taught that

when choosing a spouse, the primary consideration

should be the potential partner’s “deen” or faith and

piety. Tariq Nisar Ahmed, Fiqh of Love, MUSLIM MATTERS (May 11, 2009), https://bit.ly/2oOvgYW; Suzana

Nabil Saad, How Does a Muslim Get Married?,

ABOUTISLAM.NET (Jan. 1, 2017), https://bit.ly/

2ADNgIf.

As with Judaism and Christianity, the fundamentally sacred nature of marriage in the Islamic

faith is underscored by the religious restrictions

placed on potential marital partners. The Quran

18

places specific limits on the ability of either male or

female Muslims to marry outside the faith. See Quran

2:221, 5:5, 60:10.

Given the deep religious significance of marriage

in the Islamic tradition, there can be no surprise that

the wedding ceremony itself is viewed as a religious

event. Although, again, there is much variance in cultural detail, the shared core of the wedding ceremony—or nikah—is steeped in religious significance.

The nikah is considered a sacred ceremony; it generally takes place in a mosque, Nikah (Marriage) &

Walima (Reception) in Islam, CENTRAL-MOSQUE.COM,

https://bit.ly/2w9s3Dy, and it is officiated by an Imam

or other scholar of Islamic law, (NUHP%XùUD(NLQFL,

Marriage ceremonies in Islam, DAILY SABAH (Oct. 19,

2017), https://bit.ly/2ICSx7p; MONGER, supra, at 160.

The ceremony begins with a sermon by the officiant

“invit[ing] the bride and the groom, as well as the participating guests in the assembly to a life of piety, mutual love, kindness, and social responsibility,” Saad,

supra, How Does a Muslim Get Married?, and it concludes with prayer, or “dua,” such as “May Allah bless

you and bless it for you and may He join you with

goodness!” Nikah (Marriage) & Walima (Reception) in

Islam, supra; see also Saad, supra, How Does a Muslim Get Married?

The nikah ceremony is traditionally followed by

a celebratory banquet, or walima. Id. At a traditional

Muslim wedding, the male and female guests attending the walima will be seated separately, with a partition between them, in compliance with the Quran’s

19

command against improper and immodest mixing of

the sexes. Saqib Saab, Weddings: To Separate Or Not

To Separate, MUSLIM MATTERS (May 22, 2008),

https://bit.ly/2OjHeob; Nikah (Marriage) & Walima

(Reception) in Islam, supra.

As in the other Abrahamic religious traditions,

the wedding is thus an event of deep spiritual significance in the Muslim faith, “[a] sacred ceremony,” Ekinci, supra, Marriage ceremonies in Islam, and fundamentally “an act of worship,” Shaahima Fahim, Must

Wedding Bells Go Ka-Ching?, MUSLIM MATTERS (Nov.

18, 2013), https://bit.ly/2ANxB93.

B. The injunction compels Petitioner to

participate in same-sex weddings she

finds objectionable as a matter of conscience.

The permanent injunction entered and affirmed

by the courts below provides as follows:

[Petitioner and her employees] are permanently enjoined and restrained from . . . discriminating against any person because of

their sexual orientation. The terms of this

permanent injunction include a prohibition

against any disparate treatment in the offering or sale of goods, merchandise, or services to any person because of their sexual

orientation, including but not limited to the

offering or sale of goods, merchandise, or

services to same-sex couples. All goods, merchandise, and services offered or sold by

20

[Petitioner] shall be offered and sold on the

same terms to all customers without regard

to sexual orientation . . . , including but not

limited to goods, merchandise and services

for weddings & commitment ceremonies.

Pet.App.140a.

By its plain meaning and effect, this injunction

requires Petitioner to participate in wedding ceremonies she finds objectionable as a matter of religious

faith. One of the principal “services for weddings” that

Petitioner “offers or sells” is what she describes as

“full wedding support.” When an engaged couple purchases this package, Petitioner explains,

Arlene’s floral designers offer to help before,

during, and after the wedding ceremony to

ensure that all flowers are beautiful

throughout the ceremony and reception. Often this might require touching up an arrangements, changing out flowers if needed,

attending the ceremony, and assisting with

the clean-up and removal of floral arrangements afterwards.

Pet.App.383–84.

Designing, creating, and installing the floral arrangements for a wedding is a critical part of the marriage ceremony, and the floral arrangements carry religious significance in many faiths. As Petitioner testified below, her floral “creations adorn the ceremony

and often define the style and colors of the wedding.”

Pet.App.382a. In the Christian tradition, for example,

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a couple may choose white flowers, as a symbol of purity; or the color of the flowers may be designed to

match the liturgical colors of the current season of the

Church year. See Marriage Guidelines, ST. MARY OF

THE ASSUMPTION CATHOLIC CHURCH, https://bit.ly/

34XDoHf; Rev. Douglas Escue, The Colors of the Liturgical Seasons, LUTHERAN CHURCH MISSOURI

SYNOD, https://bit.ly/2OhYxGg. In some Catholic weddings, it is customary for the couple to present a bouquet of flowers before a statue of the Virgin Mary, as

a way of venerating the special role the mother of

Christ has within that faith tradition. Planning Your

Catholic Wedding, CATHOLIC WEDDING HELP, https://

bit.ly/2McDZvY. In Jewish weddings, the florist is often called upon to decorate the chuppah, or bridal canopy, which is the “legal instrument” that “formally

permits the couple’s new status of marriage of be actualized.” Maurice Lamm, The Bridal Canopy (Chuppah), CHABAD.ORG, https://bit.ly/30QU1kE; see, e.g.,

Lauren Dubell-Beadle, Your Chuppah—Everything

You Need To Know, SMASHING THE GLASS (Apr. 17,

2018), https://bit.ly/2nlSDbQ. Moreover, Judaism has

long seen floral and plant displays as bearing religious

significance. Rabbis have debated whether particular

holiday displays are praiseworthy or prohibited in

synagogues. Customs of Shavuot, ORTHODOX UNION

(June 30, 2006), https://bit.ly/2pXHzCI.

Even when the couple chooses not to order floral

arrangements with independent religious significance, the work they ask the florist to perform may

implicate the florist’s religious beliefs. In Judaism, for

22

example, merely deriving economic benefit from a

product or service may transgress Jewish law: just as

an Orthodox Jewish merchant may not sell a cheeseburger to any customer due to the mitzvah against deriving any benefit from a mix of dairy and meat, Why

Not Milk & Meat?, AISH.COM, http://bit.ly/35fCDcA, a

Jewish wedding vendor may not be permitted to provide services for a wedding that occurs on the Sabbath

or select holy days, even if her attendance is not required, Menachem Posner, What is Shabbat?, CHABBAD.ORG, https://bit.ly/2IjlTrp. And attendance at the

ceremony, without more, may involve the florist in religious practice. In the Christian faith, for example,

congregants are often called upon to make a collective

promise to uphold the couple in their marriage. EVANGELICAL LUTHERAN WORSHIP 286; BOOK OF COMMON

PRAYER 425.

Moreover, as Petitioner explains,

When I attend wedding ceremonies for Arlene’s, I also participate in rituals that occur

at the wedding. For example, I have frequently stood for the bride, clapped in appreciation of the married couple, and prayed

along with the officiant as the officiant leads

the wedding attendees. . . . When providing

full wedding support, my employees and I

are at the disposal of the Bride and we want

to help any way that we can. I have greeted

guests as they arrived to the ceremony,

helped with entertaining children as the

wedding party prepared for the ceremony,

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styled hair for the wedding party, and even

assisted with cleaning the wedding party’s

attire.”

Pet.App.383–84.

By requiring Petitioner to offer her wedding services on the “same terms to all customers without regard to sexual orientation,” Pet.App.140a, Washington’s injunction thus requires her to attend and participate in same-sex wedding ceremonies. To be sure,

Respondents are not forcing Petitioner to officiate at

those ceremonies, to lead the prayers, or to sing in the

choir. But the protections of the Religion Clauses have

never been confined to ministers or other officiants.

Freedom of religion includes the freedom to practice,

not just to preach, the religion of one’s choosing.

The court below resisted these conclusions, contending that Petitioner “does not claim” that attendance at and participation in the actual wedding event

“are services that she is providing for a fee,” as opposed to “voluntary,” and her participation is thus not

“covered by [the] injunction.” Pet.App.12a. That is incorrect. The record clearly shows that Petitioner’s attendance at, and close involvement in, the wedding

ceremony is an integral part of one of the “services”

she “offers and sells,” Pet.App.140a: the “full wedding

support” package. Pet.App.383. And even if there

were any doubt about that, this argument wholly ignores the fact that the injunction entered below not

only requires that Petitioner offer and sell her “services” to same-sex couples, it further requires her to

24

do so “on the same terms” and without “any disparate

treatment.” Pet.App.140a. Were Petitioner to attend

and “do whatever it takes” when providing floral services for opposite-sex couples, Pet.App.384a, but decline to attend and support same-sex couples in the

same way, there can be no doubt—none at all—that

Respondents would haul her into court for violating

the terms of the injunction. And Respondents would

plainly not be satisfied by any protestation by Petitioner that her disparate participation in opposite-sex

and same-sex weddings was “not before the Court” because she was merely “voluntarily involv[ing] herself”

in some weddings but not others. Pet.App.12a.

The Washington courts also sought to dismiss

the patent violation of religious freedom entailed by

their injunction in another way: by pointing to a supposed contradiction in Petitioner’s (concededly sincere) religious beliefs. While Petitioner “believes that

participating . . . in a same-sex wedding . . . is tantamount to endorsing marriage equality for same-sex

couples” in violation of her faith, the court below noted

that she “acknowledged that selling flowers for an

atheistic or Muslim wedding would not be tantamount

to endorsing those systems of belief.” Pet.App.8a.

There is no tension between those two commitments.

As Petitioner explained, her religious faith is violated

by participating in same-sex weddings not because it

entails any endorsement of the religious beliefs of the

couple, but because it is a tenet of her faith that “God

defines marriage as a spiritual union between one

man and one woman,” and that faith does not allow

25

her to “go against God’s definition of marriage or assist others in doing so.” Pet.App.373a. In a similar

vein, an Orthodox Jewish florist might provide services for a Muslim or Christian wedding while maintaining that it would be prohibited for her to provide

services for a wedding ceremony in which a Jew was

converting to a different religion, since Jewish law enjoins celebrating a Jew’s departure from the covenantal relationship between God and the Jewish people.

Leviticus 20:26; Exodus 20:2. And in any event, even

if the courts below did perceive a contradiction in Petitioner’s belief system, the Constitution makes it utterly inappropriate for them to “tell [Petitioner] that

[her] beliefs are flawed.” Burwell v. Hobby Lobby

Stores, Inc., 573 U.S. 682, 724 (2014). As the court below was at pains to emphasize, there is no doubt that

Petitioner’s religious objection to participating in

same-sex weddings is sincere. Pet.App.20a. Under the

First Amendment, that must be the end of the matter.

CONCLUSION

For the above reasons, this Court should grant

the writ and reverse the judgment of the Washington

Supreme Court.

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October 15, 2019

Respectfully submitted,

DAVID H. THOMPSON

Counsel of Record

JOHN D. OHLENDORF

HALEY N. PROCTOR

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amici Curiae