License to Discriminate: How a Washington Florist is Making the Case for Applying Intermediary Scrutiny to Sexual Orientation

Authors

Kendra LaCour

Abstract

Over the past few decades, the debate over sexual orientation has risen to the forefront of civil rights issues. Though the focus has generally been on the right to marriage, peripheral issues associated with the right to marriage—and with sexual orientation generally—have become more common in recent years. As the number of states permitting same-sex marriage—along with states prohibiting discrimination on the basis of sexual orientation—increases, so too does the conflict between providers of public accommodations and those seeking their services. Never is this situation more problematic than when religious beliefs are cited as the basis for denying services to gay, lesbian, bisexual, or transgender individuals. This Comment poses the following issue: What happens when a state acts to suppress a right and a class fully protected by federal legislation and the Constitution (religion) in favor of a class that is only partially protected by federal law and is fully protected by only a handful of states (sexual orientation)? This question requires two answers: first, the likely outcome of the case if it reaches the United States Supreme Court; and second, a way to resolve the ensuing conflict between states offering varying levels of protection around sexual orientation. This Comment concludes that the Supreme Court would likely resolve the current conflict in favor of the State. Furthermore, this conflict demonstrates the need for consistent nationwide protection of sexual orientation—any lesser protection, whether at the federal level or among individual states, is unworkable in a civil rights context.

Recommended Citation

Kendra LaCour, License to Discriminate: How a Washington Florist is Making the Case for Applying Intermediary Scrutiny to Sexual Orientation, 38 SEATTLE U. L. REV. 107 (2014).