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
RWL states, with zero authority, “You are not born gay or lesbian; this is a choice. There is no research, stating the opposite.”
What age did you realize you were attracted to the opposite sex?
How long did you agonize over the decision to “tell” someone?
How long did you live a double life in the closet because of the unspeakable intolerance around you, even from your own family?
When do you intend to take responsibility for your own unkind speech that directly contributes to the problem you have with gay people?
You have no clue what you are talking about. Some actual life experience would be terribly handy. It would help with the foolishness.
RWL then demands, “explain to me how it is unlawful/illegal discrimination if another person or organization refuses to assist me in a non-life threatening situation ”
Because we as a society have enacted laws to support the notion that we are no longer going to have this sort of discrimination in our open, diverse nation. If you cannot abide by this due to constraints you have put on yourself for any reason, religious or otherwise, then you are going to be a very unhappy business owner in America in 2013. And, you retain the freedom to be just as miserable as you want about it.
Just don’t get any of it on me, thanks.
Elaine, I grew up and lived in Michigan for a spell, and this area of WA reminds me of the Upper Peninsula, but on steroids! I have a view of Puget Sound from my apt, as well as the summit Mt. Ranier, for much, MUCH cheaper than I was paying in L.A.The rains wash out the air, and the smell of pine forest is always at the ready. And, the body still thinks it lives in a filthy desert.. in terms of “problems to have,” I am getting off very easy…
Any vacation plans in the works?
RWL,
“You are not born gay or lesbian; this is a choice. There is no research, stating the opposite.”
Is there any research proving that individuals aren’t born gay or lesbian–and that one chooses to be gay or lesbian?
RWL, Why would anyone choose a sexual orientation that is discriminated against in so may ways and frequently results in physical, as well as verbal, assaults? Why is it that many understand their sexual orientation as young as three years old? It is no more a choice than is the color of one’s skin.
Bron falsely mimics, “I get that the idea of individual liberty [and the responsibility that implies] is “new” and really scary to most folks.”
We have decided as a society that your individual liberty no longer includes discrimination once you decide to become a business owner. We have also decided this poses no real threat to anyone’s personal liberty. Quite the reverse, if you were not blessed by jehova to be at once straight, male, and lily-white in America.
I find your perception of individual liberty to cater to the worst in us. As your fellow citizen, I also observe you are capable of better. Society is slowly reflecting that notion, but it has many miles to go before it sleeps.
“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.”
Why do we always equate sexual orientation (a choice) with ethnicity (race)? You are born a certain ethnicity. You are not born gay or lesbian; this is a choice. There is no research, stating the opposite.
Therefore, if I choose to live a certain lifestyle (i.e. gay, lesbian, heterosexual, catholic, baptist, etc.), then, explain to me how it is unlawful/illegal discrimination if another person or organization refuses to assist me in a non-life threatening situation (selling me flowers)?
I believe there is a law against refusing life threatening assistance (or maybe all medical assistance) to someone who chooses to live a certain lifestyle..i.e. being a catholic, baptist, gay, lesbian: an ER doctor refusing to perform emergency or life saving surgery on an individual due to the patient’s sexual or religious orientation?
James,
Washington may be damp–but it’s a beautiful state. I’ve vacationed there a couple of times. The first time I visited Washington there was a drought and the Hoh Rainforest didn’t look much like a rainforest.
Bettykath/James:
I said this above: “If someone wants to discriminate based on race, gender, sexual orientation, sure why not? Just dont expect your business to grow and count me out as one of your patrons.”
I think the woman is stupid to not sell flowers to the guy, she is missing out on a huge amount of business. But I also think if you are going to have a free society you cant force people to do business with each other. Trade should be voluntary. If the state can force you to serve people it can also force you not to serve people [as happened in nazi germany].
I get that the idea of individual liberty [and the responsibility that implies] is “new” and really scary to most folks.
Elaine, thank you! Your advice is being amplified by a recalcitrant left thumb that declares Washington State is “too damp.”
Not exactly on topic–but on the subject of gay rights:
Missouri Man Arrested For Refusing To Leave His Husband’s Hospital Bedside
By Zack Ford
Apr 11, 2013
http://thinkprogress.org/lgbt/2013/04/11/1852551/missouri-man-arrested-for-refusing-to-leave-his-partners-hospital-bedside/
Excerpt:
If ever there were a perfect example of how basic legal contracts are an inferior alternative to the benefits of marriage for same-sex couples, this heartbreaking story is it. Missouri resident Roger Gorley was staying by the hospital bedside of his partner Allen, with whom he’s been in a civil union for nearly five years — though it is not recognized in Missouri — and with whom he also shares power of attorney. When one of Allen’s family members asked him to leave and he refused, a security official at the Research Medical Center arrested him, removed him from the premises, and issued a restraining order preventing him from visiting his partner.
Gorley explained to Fox4 that the nurses were not even willing to verify their power of attorney, despite the fact the couple has visited the hospital multiple times:
GORLEY: I was not recognized as being the husband, I wasn’t recognized as being the partner… She didn’t even bother to go look it up, to check into it… All we want is equal rights.
James,
Take this bit of advice from a sexagenarian: One has to adapt to being old, too.
Mespo,
Thank you, sir! Thus sayeth Elaine.
Bron, if you go into business, it’s to make money. You can delude yourself you are doing it for other reasons, but when revenue fails as it does most of the time, the business fails along with it. Working business models are increasingly rare as the times change, so it’s just bad business to discriminate. It is also illegal, as this florist is about to find out.
No one is successful by themselves. It takes many people working together in your favor as a business owner, along with the work of those in the public sector to bring you the infrastructure on which your business depends.
Discrimination has no function in that pipeline other than to satisfy the small-minded needs of otherwise selfish people, despite any claims of “religion,” peaceful or otherwise.
I get that the “gay thing” is “new” to some (older) folks. And it appears the days when we can openly disregard gay people with tacit, institutionalized discrimination are over. Adaptation is the essence of life, no matter how old you happen to be.
I sympathize with JT’s dilemma because no one wants to point fingers at a dumb florist and call her out for her silly-religion over flowers. And, discrimination knows no religion, and we have decided, as a country we’re not having it any more.
Evolution demands the florist adapt, or perish. JT is uncomfortable with the seeming brutality of this math that we must absolutely have lest we descend into theocracy, the worst form of customer service imaginable.
Elaine M:
“What does the Book of Stu of Pid say about one woman laying down with another woman?”
************************
It took some searching through my scrolls but I found this:
And if ye faithful learn of a woman about to lay with another woman, ye may not in your wickedness barter or draw lots for good seats as in times of old (unless you reserve a good viewing spot for Me). Rather, ye must counsel the woman to know her place and through your own physical toil disabuse her of the error of her ways. For I have told you to live well and procreate to create more worshippers for Me. Thus sayeth the Lord.
Sounds kind of familiar.
The statutory authority for the AG to do this is well established in WA law and is unambiguous.
http://apps.leg.wa.gov/rcw/default.aspx?cite=49.60.030
In fact, had this been an issue of race, the proprieter could have been charged with a criminal offense.
http://apps.leg.wa.gov/rcw/default.aspx?cite=9.91.010
It should also be recognized that gay marriage is legal in WA. The claim by the florist about the artistic expression is a poor argument given the statute which denotes the activity of the florist to be considered an illegal blacklist.
There is an inconsistency in WA law with regard to abortion or abortion pills. The law allows practitioners and pharmacists the ability to abstain from engaging in this on personal moral issues.
Yet, part of the price of doing business with the public is the requirement that all persons be treated equally under the law. If one proprieter is allowed to discriminate against gay folks it is only a matter of time before more will. Just think of what it would be like to have to constantly hunt around looking for someone that will not discriminate against you. It is a bad life to be forced to live.
And as Mark said, who cares what the person is like as long as they pay the bill and are a good customer.
Bron, So I can have a small cafe and I can choose not to serve anyone of dark complexion or any same sex couples? I won’t make as much money but I’ll have a pure place.
If a gay florist refused to sell flowers to Stutzman because he didn’t want to support her religious beliefs by tacitly endorsing whatever she’d be using the flowers for, I doubt she’d simply accept that and move on.
” 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.” (JT)
Really?!
Jeso BarkinDog, a lawyer’s analysis should be to focus on whether this form of discrimination violates laws prohitiing such. The public accomodations act,8i.e. federal statute and then state laws governing same, is first stop and if that fails then go to a constitutional argument under a liberty interest protected by he 14th Amendment. The closet gay flower shop owner may try to assert as a defense his free expression right of religtion apCray but how does refusing service suppress his right of expression? Maybe that right ends at the churchhouse door in this instance. Or on the pew. And if the guy is praying to God or Dog on the pew would he really admit to being a gay bigot?
Selling flowers to wedding is definitely a public accomodation but is gay bashing discrimination prohibited? That is the first question. I gotta go to church, it seems some cats want to come to service on Sunday and I dont know what to tell em. I will check in later.