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
Mike A., Right.
“At the level of basic commerce, these conflicts must be resolved in favor of pluralism.”
And right also that this attempt to redefine the Free Exercise clause did not just spring up, Topsy like, but is a concerted attack on our Constitution and our country as a secular nation IMO. Right. Right. Right.
We live in interesting times.
Mike A.,
That was a wonderful post. You are spot on as usual.
Mike A.,
I agree with your statement about this being an issue pitting different rights that we enjoy.
There was a particularly salient story on PRI tonight describing in some detail what’s really going on behind the matter. One segment Arlene’s attorney spoke, which pretty much put it in perspective, for me at least…
Before I get to the main topic, I want to briefly address the “gay lifestyle” issue. That phrase is, and is intended to be, pejorative. I did not sit down at some point during my adolescence, write down a list of pros and cons, deliberate and then decide to live as a heterosexual. I know of no heterosexual who did. I know of no homosexual who did. I did not “choose” heterosexuality any more than I chose to have hazel eyes. Joining the Peace Corps is a lifestyle choice. Buying a Volvo is a lifestyle choice. Sexual identity is not, and every contrary argument I have ever encountered has as its foundation a moral judgment uninformed by any consideration of what we have learned about biology.
Now to the main topic. In my view this story describes a minor skirmish in a much larger battle over the scope of the Free Exercise clause. There is a concerted, and growing, effort by a peculiar coalition of Roman Catholic and Protestant evangelical groups to stretch that clause beyond recognition. The barrage of pending lawsuits challenging the so-called “contraception insurance mandate” is an example of that effort.
To put this into perspective, it is perhaps helpful to recall that the decision in Roe v. Wade generated controversy that ultimately led to an alliance of Catholics and fundamentalists vehemently opposed to abortion. I call it a “peculiar coalition” because its members could not be farther apart on basic theological issues.
The coalition is also characterized by a preference for authoritarianism. Thus it has reacted strongly from the fear generated by the right’s insistence that supporters of secular government have been waging a war on Christianity.
Finally, at the core of the evangelical position is the belief in Christian dominionism, which rejects religious pluralism and the entire idea of separation of church and state. Examples of this theology abound.
In ruling on Free Exercise claims, the courts are understandably deferential when it comes to questioning religious sincerity, and that is how it should be. But we cannot survive as a pluralistic society if each of us is permitted to choose which laws to honor and which rules to follow merely based upon private notions of religious truth. This creates inevitable conflict with those who believe that living as a witness to Christianity requires rejection of persons of opposing religious views. At the level of basic commerce, these conflicts must be resolved in favor of pluralism. At the level of laws of general application, these conflicts must be resolved in favor of the law. I don’t have enough time to explore these issues in depth in a single comment. I’m simply trying to bring some definition to the discussion.
Eastern Washington is mostly dry with four real seasons. Summers are great there.
‘I am sorry. I can’t do your wedding because of my relationship with Jesus Christ.’
**
Blaming Jesus for her own bigotry is going to send her straight to Hell 🙂
___________________________________________
Professor: “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.”
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No, no we don’t. With all due respect, once one enters the public square to provide any thing or service then ones relationship with ones god can’t be cover to allow one to discriminate against any protected group. If ones relationship with their god demands discrimination then the practitioner needs to withdraw from public business. Any free exercise (of religion) that discriminates in the public sphere needs less room, zero room, in a civilized society since it encroaches impermissibly on the establishment clause.
You go down that road any distance and you will end up with “No Coloreds or Jews Allowed” signs in shop windows and women being denied service for wearing pants instead or dresses or skirts. The religious right is already trashing civil gains women fought decades to secure and once that fight is exhausted they will move on to other protected groups and their recognized rights.
Today Gays are their 2nd favorite targets and it is over the same issue, sex/gender/reproduction. Give it some time and breathing room and those same bigoted pharmacists will refuse to dispense medications for HIV/AIDS, STD’s, and birth control pills. I’m surprised we haven’t already seen it happening.
Mespo: ….”Nor may ye bring unto his house cakes of honey, nor may ye gaze upon his bed linens, or his servants, or even his tethered ass.”
*******
Mespo, I think you’re getting into a whole separate orientation there… 🙂
RWL,
“Since the jury is still out on sexual orientation genetic or environmental status, then is the flower lady violating a law by not selling to someone who chooses a certain lifestyle?”
*****
So what if the jury is out?
rwl:
yes you should be if the logic here is applied. You have a moral aversion to the klan [as do most of us and no I am not equating being gay and kkk morally equivalent] but that doesnt matter and you must sell him insurance or face penalties.
It sounds all well and good to be against discrimination but then you end up being forced to do something truly repugnant in the name of anti-discrimination. The law cannot anticipate all probabilities and so each individual should be left to the dictate of his conscience.
RWL:
you ought to watch a show called the journey of man or some such thing. it talks about how all the races are descended from a tribe of Bushmen in Africa. The scientist took many genetic samples to trace the movement of people from Africa all over the globe.
Africa is mother to all of us, white, black, brown, asian, pacific islander, german, we all trace our genetic roots to a small tribe of Bushmen in Africa. We are all literally one big dysfunctional family.
They may pick out their own flowers for the wedding, as they have picked out flowers to purchase from the shop before. . .
“She” declined to pick out flowers for a same gender marriage . . .
The state cannot compel the store owner to pick out flowers any more than the state can compel the store owner to pick cotton. . .
Businesses are not purely private entities. They receive a variety of protections and privileges from the State. So, they should serve all law-abiding citizens, right?
It is when reduced down to the root. .
The citizens failure to comply with promoting the states message of (fill in the blank) now gets you 3 hots and a cot . . . used striped pajamas, no extra charge . .
RWL,
Blacks, Native Americans, Muslims, women, gays, and other groups have been discriminated against/are being discriminated against in this country. You can talk degrees of discrimination–but, as I see it, discrimination is still discrimination.
Elaine,
You missed my point. Yes, discrimination is discrimination. We all discriminate in some form or another. However, and this is my point, when does it cross the line of unlawful\illegal discrimination. Like the flower lady, am I violating the law if I refuse to sell auto insurance to the KKK customer? Should I be forced to sell to the KKK customer? Since the jury is still out on sexual orientation genetic or environmental status, then is the flower lady violating a law by not selling to someone who chooses a certain lifestyle?
Elaine:
I said that there is no research supporting the notion that you are born gay or lesbian. There isn’t. However, I will recant from my earlier statement by stating: the jury is still delivering on whether the notion that sexual orientation is genetic or environmental. See:
http://en.wikipedia.org/wiki/Biology_and_sexual_orientation
James K.
What world do you live in? We all discriminate (some of us are little more discrete with it than others). For example, if I am selling auto insurance, and a man, dressed up like the KKK (or is wearing tatoos supporting the KKK or any form of ‘white superiority’) came into my office wanting to purchase auto insurance, then I (black man) won’t be selling any insurance to him anytime soon.
Will I sell auto insurance to a gay or lesbian individual? Of course! I wasn’t advocating that I discriminate towards gays and lesbians.
BettyKath:
I said that you can’t equate civil rights (wanting be human-don’t forget the civil rights movement didn’t start in the 1900s, as our historians assert. the civil rights movement started before we got on that boat to across the Atlantic Ocean) with gay & lesbian rights. Why?
There are certain physical traits utilized to define or group people together in certain categories or ethnicities. I am 6’2″ weighing 220 lbs dark skinned African-Ameican. I cannot, based on how people are phyiscally categorized into ethnicities, state that I am a white male (I can, but let’s see how far I can do this without being locked up in a mental institution). Can I change my skin color, Hair, Nose & Lip structure to fit those of a white male? Sure. But why would I do this? The question, then becomes, am I still an African-American?
Then, the topic goes into a genetic discussion in which I have little expertist. I can only quote you research that I looked up, but this doesnt make me an expert in the field of genetics. Are there genetic ‘markers’ or traits that makes me a black man? What does it mean to be black or white? Or is it purely physical? See:
http://en.wikipedia.org/wiki/African_people
My point, as I stated earlier, is that since their is no proof that sexual orientation is genetic, and there is proof that there are genetic differeneces amongst human beings, and some of human beings share certain genetic traits correspoding or correlating to cultural groups:
“A 2009 study detailed the genome-wide relationship among the largest number of African populations sampled to date, accordingly, Fourteen ancestral population clusters were found in Africa that correlate with self-described ethnicity and shared cultural and/or linguistic properties.” (from the wikipedia link).
Then you can conclude that there are genetic traits or markers for being black or of African descent. You can’t equate having the same rights because you are gay with having the same rights as if you were black or wanting to be human. Where is the cultural background for gays & lesbians? Is this a group of people originating from North America like the Native Americans? Or is this a political, societal, religious, or individual decision or group?
Now you can make the case for wanting to enjoy the same civil liberties for gays & lesbians, as Catholics, Baptists, etc. enjoy. But to put Gays & Lesbians in the same categories as what black people have suffered (and continue to suffer) is not comprehending the history of Africans and African-Americans.
Social Conservatives To GOP: Maintain Anti-Gay Marriage Stance Or We’ll Abandon Republican Party
The Huffington Post
By Nick Wing
Posted: 04/11/2013
http://www.huffingtonpost.com/2013/04/11/social-conservative-gop-republican-party_n_3060634.html?utm_hp_ref=gay-voices&ir=Gay%20Voices
My artistic work revolves around life
The state cannot compel me to create a work of celebrating abortion…
Elaine, the Best of Times! It was the reason I moved, to be much closer to family, Maine sounds delightful!
James,
We vacation in Mid Coast Maine every summer. We rent a lovely home on the water. It has a big deck and a fireplace…and a kitchen that is a cook’s delight. My husband and I both love to cook for family and friends. Our daughter, son-in-law, granddaughter, and a couple of friends join us. It’s always a great and relaxing week for us. We eat well and enjoy each other’s company.
Elaine,
Just like any good soul knows….. Jesus….. You know told them that its a choice……
It must have something to do with the moon…. I’ve been seeing some crazy things today.. And not jus what RWL said either….