Washington Attorney General Bob Ferguson is suing Barronelle Stutzman, owner of Arlene’s Flowers and Gifts, after she refused to provide flowers for a gay wedding. I have been writing about the tension between free exercise rights and anti-discrimination laws — a subject that I discussed at the conference this week at the Utah Valley University’s Center for Constitutional Studies. This is now an issue that is arising with greater regularity, including conflicts over wedding cakes and other items.
Ferguson is acting under provisions of the state’s Consumer Protection Act that bar discrimination on the basis of sexual orientation and is seeking an injunction requiring the florist to comply with the law. He is also demanding a fine of $2,000 for each violation.
The case involves the refusal to serve customer Robert Ingersoll. Stutzman insists that her religion barred such work. She described the scene: “He [Ingersoll] said he decided to get married and before he got through I grabbed his hand and said, ‘I am sorry. I can’t do your wedding because of my relationship with Jesus Christ.’ We hugged each other and he left, and I assumed it was the end of the story.”
However, the Attorney General says that the standard is clear: “If a business provides a product or service to opposite-sex couples for their weddings, then it must provide same-sex couples the same product or service.” Advocates of such enforcement note that we long ago stopped businesses from refusing to serve people due to their race and that this is merely an alternative form of discrimination.
Recently, a same-sex couple sued over an Oregon bakery’s refusal to make a cake for a same-sex couple.
The question is whether anti-discrimination laws are cutting into free exercise and first amendment rights for religious individuals, particularly those who believe that they are engaged in a form of expression or art in the preparation of flowers or cakes. These types of expressive acts may be distinguishable from other public accommodation cases like hotels or restaurants. Even though the same religious objections can be made by an evangelical Christian hotel owner, the flower and cake makers can claim that they are engaged in a more expressive form of product. It is, in my view, a difficult question because I do not see how anti-discrimination laws could not be used to negate a wide array of expressive activities.
I have long been a critic of the Bob Jones line of cases on tax exemption. I have long held the view that we took the wrong path in dealing with not-for-profit organizations, particularly in such cases as Bob Jones University v. United States, 461 U.S. 574 (1983). We need to re-examine how anti-discrimination laws are encroaching upon religious organizations to give free exercise more breathing space in our society — a position I discussed in a book with other authors.
I find these more recent cases more difficult than the tax exemption cases. I find the analogy to race discrimination in public accommodation to be compelling. I have also been a long supporter of gay rights and same-sex marriage. However, I have serious reservations over the impact on free exercise in an area of core religious beliefs. What do you think?
Source: Seattle Times