By Darren Smith, Weekend Contributor
What so far has proven to be a long ordeal for two men originally wanting only to be provided with a floral arrangement for this upcoming wedding, and also for florist Barronelle Stutzman who asserts her right to religious freedom by denying this service, has now come to another milestone in Washington.
A unanimous ruling by the Washington Supreme Court, the court denied Stutzman and her business, Arlene’s Flowers, INC’s assertions, ruling:
“…Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation.” and therefore held that “the conduct for which Stutzman was cited and fined in this case-refusing her commercially marketed wedding floral services to Ingersoll and Freed because theirs would be a same-sex wedding-constitutes sexual orientation discrimination under the WLAD.” (Washington Law Against Discrimination)
We previously wrote HERE and HERE of Richland, Washington Florist Barronelle Stutzman, the owner of Arlene’s Flowers, who caused a row when she refused to provide her floral services for a gay wedding. Now, a Benton County Superior Court Judge ruled that she violated the state’s consumer protection act that bars discrimination against a protected class.
The legal action was brought by customer Robert Ingersoll and the Washington Attorney General’s Office.
Judge Alex Ekstom rejected Baronelle’s arguments that her actions were protected by free speech and religious freedom guarantees stating in part:
“For over 135 years, the Supreme Court has held that laws may prohibit religiously motivated action, as opposed to belief. The Courts have confirmed the power of the Legislative Branch to prohibit conduct it deems discriminatory, even where the motivation for that conduct is grounded in religious belief.”
Robert had been a customer of Arlene’s Flowers for several years prior to the incident in question. Barronelle was aware that he was gay and had a partner Curt Freed for whom he purchased flowers. When Washington statutorily provided for gay marriage in 2012, Robert asked Barronelle to make the wedding arrangement for him. But, Barronelle declined, putting her hand upon Robert’s and stating that “because of [her] relationship with Jesus Christ”, she would not be able to do so—according to her statement in a deposition.
In court filings the couple asserted emotional damaging fallout resulting from the denial of the floral services and that it allegedly brought unintended consequences that effectively crashed their original wedding plans after word travelled virulently on social media.
…Early the next morning, after a sleepless night, Freed posted a status update on his personal Facebook feed regarding Stutzman’s refusal to sell him wedding flowers. The update observed, without specifically naming Arlene’s Flowers, that the couple’s “favorite Richland Lee Boulevard flower shop” had declined to provide flowers for their wedding on religious grounds, and noted that Freed felt “so deeply offended that apparently our business is no longer good business,” because “[his] loved one [did not fit] within their personal beliefs.” This message was apparently widely circulated, though Ingersoll testified that their Facebook settings were such that the message was “only intended for our friends and family.” Eventually, the story drew the attention of numerous media outlets.
As a result of the “emotional toll” Stutzman’s refusal took on Freed and Ingersoll, they “lost enthusiasm for a large ceremony” as initially imagined.In fact, the two “stopped planning for a wedding in September 2013 because [they] feared being denied service by other wedding vendors.” The couple also feared that in light of increasing public attention-some of which caused them to be concerned for their own safety-as well as then-ongoing litigation, a larger wedding might require a security presence or attract protesters, such as the Westboro Baptist group.
So they were married on July 21, 2013, in a modest ceremony at their home. There were 11 people in attendance. For the occasion, Freed and Ingersoll purchased one bouquet of flowers from a different florist and boutonnieres from their friend. When word of this story got out in the media, a handful of florists offered to provide their wedding flowers free of charge.
Stutzman also received a great deal of attention from the publicity surrounding this case, including threats to her business and other unkind messages.
Curt and Robert sued. They cited the Washington Consumer Protection Act and its laws against discrimination. They supported by the Washington Chapter of the American Civil Liberties Union and the State Attorney General who welcomed the Superior Court ruling.
Under the Washington Consumer Protection Act, Arlene’s Flowers is subject to a sanction of One Thousand Dollars for failing to comply with the act.
An interesting aspect of Stutzman’s defense was that she could not be personally liable for the actions–the refusal to perform floral services–because she was shielded by the Corporate Veil pursuant to the incorporation of Arlene’s flowers. Yet the Court made it quite clear as to how liability for violations of the WLAD and the Consumer Protection Act may fall upon corporate officers and make their corporation’s liability their own; something likely to deter similar forms of discrimination:
Stutzman argues that she cannot be personally liable for violating the CPA [Consumer Protection Act] because (1) she kept her affairs separate from Arlene’s Flowers’ and (2) no
Washington court has ever applied the “responsible-corporate-officer doctrine” outside the fraud context. Br. of Appellants at 49 (citing Grayson v. Nordic Constr. Co., 92 Wn.2d 548, 552-53, 599 P.2d 1271 (1979); One Pac. Towers Homeowners’ Ass ‘n v. HAL Real Estate Invs., Inc., 108 Wn. App. 330, 347-48, 30 P.3d 504 (2001), aff’d in part and rev ‘din part, 148 Wn.2d 319, 61 PJd 1094 (2002)).The authority Stutzman cites does not support this argument. In Grayson, this court held that the defendant could be personally liable for his company’s CPA violation even though there were no grounds for piercing the corporate veil. 92 Wn.2d at 553-54. This directly contradicts Stutzman’s theory that she cannot be personally liable under the CPA unless she commingled her finances with Arlene’s Flowers’. And the other case, One Pac. Towers, 108 Wn. App. 330, does not address a CPA claim.
On the other hand, there is long-standing precedent in Washington holding that individuals may be personally liable for a CPA violation if they “participate[] in the wrongful conduct, or with knowledge approve[] of the conduct.” State v. Ralph Williams’ N. W. Chrysler Plymouth, Inc., 87 Wn.2d 298, 322, 553 P.2d 423 ( 197 6). Liability for such participation or approval does not depend on piercing the corporate veil. ld. This is consistent with the CPA’s plain language, which authorizes the attorney general to bring an action against “against any person to restrain and prevent the doing of any act herein prohibited or declared to be unlawful,” RCW 19.86.080(1) (emphasis added), and which defines “person” to include “where applicable, natural persons,” as well as corporate entities, RCW 19.86.010(1).
Such individual liability does not constitute an application of, or expansion of, the responsible corporate officer doctrine. That doctrine expands liability from a corporation to an individual officer who would not otherwise be liable “where the officer stands ‘in responsible relation to a public danger.'” Dep’t of Ecology v. Lundgren, 94 Wn. App. 236, 243, 971 P.2d 948 (1999) (quoting United States v. Dotterweich, 320 U.S. 277,281, 64 S. Ct. 134, 88 L. Ed. 48 (1943)). Here, the trial
court did not find Stutzman (the individual) vicariously or secondarily liable based on conduct of Arlene’s Flowers (the corporation). It found her liable because of acts that she herself committed.
The complete Opinion may be read HERE.
From a strictly business point of view I fully do not understand why a person would throw away good business. Gay marriage then was only recently enacted in several states and a new market for floral arranging is certain to develop. These couples could have referred additional business. And on the other hand this is another example of pettiness mushrooming into a great ordeal costing thousands of times more in terms of money and unease for all concerned, when alternatively Stutzman could have simply made the flower arrangement, made money form the sale, and have been done with it. Now, from her point of view she is worse off. The right she believed she had to deny gay couples to have services has now been destroyed and the prohibition for others has been cast in stone statewide.
Regardless of which side someone is on for this issue, a lesson should be learned that performing with reckless legal ambition and egotism often leads to laws and mandates completely disadvantageous to their cause. But then again there is the opposite side who is often benefited. In this case, Stutzman helped the civil rights movement for gay individuals quite nicely.
By Darren Smith
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.
@Juris – I thank you for your very poignant questions, and remaining so patient with my person! This was a fun discussion, albeit serious- even if I let it get away from me by shooting my mouth off.
SO here after a good rest to eat a delicious crow.
I must in light of this thread, amend my original point:
I think we are talking in regards to freedom of association, of all parties acting in good faith. People in the country legally, who intend to do whatever business. We are within the scope of the constitution- which prohibits treason- and anyone knowingly aiding and abetting our known enemies should be subject to a fair and speedy trial.
When you said earlier about some things most people agree on- no murderers, no rapists, pedophiles, ETC- I think we can agree that the freedom to associate should not include such monsters beyond the pale of personhood. IT IS too bad we do not have a Gom Jabbar to admit people.
Steg, I enjoyed it as well. It is nice to know we can disagree, respectfully, and have a substantive discussion about it, and still be civil. It’s a close case. As I mentioned to Mespo, I am curious if it will be appealed to the federal level, and if the Hobby Lobby decision has any relevance. I do think it is important to note that the Court ruled on a very specific set of facts, a crucial one I see is that the lady refused to provide flowers before any discussion about whether the gay man wanted her to do anything other than sell him flowers.
It is not for the court to rewrite ones religious beliefs – – Tho Shall not burden the means of ones sincerely held beliefs when other means to achieve the end are available – – – Tho Shall not commandeer ones artistic talents to a means not encompassed by those artistic talents – In all cases it is true – The belief – Honor thy Mother and Father is not furthered by homosexuality . . .
One must wonder where the line is drawn when those of the Muslim faith decline [which they do] to provide services towards venues of homosexuality . . .
“Regardless of which side someone is on for this issue, a lesson should be learned that performing with reckless legal ambition and egotism often leads to laws and mandates completely disadvantageous to their cause.”
Punish their reckless legal ambition and egotism with laws and mandates completely disadvantageous to their cause! That’ll shut ’em up.
Mirror, mirror on the wall …
Richland, WA is part of a significant metropolitan area, with nearly 300,000 people. It should have been very easy to find a florist who would be willing to accommodate this request. But these patrons decided to sue this florist on the basis of her religious belief rather than do that. In other words, the goal, as I see it, was not to have flowers provided to a wedding, but rather to subject the one florist who refused to do it to a lawsuit, based on religious discrimination. (The christian bible has several stern prohibitions against homosexuality. — Full disclosure: I am not a christian.) So, ask yourselves, any of you who are willing to be honest about it, who’s really being oppressed here. By the way, because there are a lot of commenters on this blog who seem not to be aware of any facts regarding it, the first amendment guarantees the free exercise of religion.
I was just reading up on ‘freedom of association’ and was going to ask about it here, if we still have it?
https://www.law.cornell.edu/anncon/html/amdt1bfrag8_user.html
Does the reciprocal hold true, “freedom to disassociate’?
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My personal opinion is that you ought to not be persecuted for your racist, bigoted, or wrong-headed beliefs. Let the people decide to patronize or ostracize your business and person, families, *associates*, etc.
Used to have it, called it, ‘freedom’.
Steg, in essence, the people of Washington have decided, through their elected officials, and decided to pass a law that prohibits discrimination against sexual orientation. From the Court’s opinion: The State of Washington bars discrimination in ‘public … accommodation[s]’ on the basis
of ‘sexual orientation.’ RCW 49.60.215.” The Court (and the state that brought the suit) was merely enforcing that law.
I agree, as do most laws, with your personal opinion about not being persecuted for your racist, bigoted, or wrong-headed beliefs. And nowhere did this decision say you can’t have them. The difference, as Don de Drain pointed out, is that when you open your business, and a law says you cannot discriminate based on sexual orientation, you cannot discriminate based on sexual orientation.
You can either freely associate with entities of your choice, or you can not. WA is saying that you in fact, can not. This, to me, is abhorrent.
I was trying to think of where I’d read someone very recently making the point so much better than I could- BOB STONE up there.
You can not legislate morality.
THEN there is the sort of strange fact that their emotional damages which came from the viral story happened because THEY posted the story, not the florist.
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In my perfect world, there would be no discrimination laws. People are not the stupid animals politicians see in the mirror. We would settle things peacefully, through free market evolution. Prosper, or fail. Business people generally understand you want to appeal to the majority as best you can.
HEY or maybe some hotheads would get shots off, but we have police and courts for those things.
I don’t care if someone is gay, straight, black, purple, pink, blue, male, female, etc. The only thing that matters is competence, merit.
(and if that position costs me some of the more hard-nosed religious types, that is their right to choose, and I do not begrudge them that.)
Steg wrote: “You can either freely associate with entities of your choice, or you can not. WA is saying that you in fact, can not. This, to me, is abhorrent.”
Good point, Steg. Forcing individuals like Ms. Stutzman to contract with people she does not want to contract with is unconstitutional. It violates everything we understand about freedom of association and contract law.
Thanks, David.
For me the real big overlying issue is government treating citizens like children.
We are big boys and girls, we can deal with adversity.
Get out of the way and let the people decide if this businessperson is worth patronizing, protesting, boycotting, buycotting, worth going to jail for assault, worth being castigated in public square for defending, etc.
Steg, is it equally abhorrent to you that one cannot freely associate with a terrorist organization?
You can’t? That’s news to me!
However, if it IS true- I think that is also a terrible thing. WE WANT terrorists and sympathizers to self identify- so that we may monitor them and then quash any horrible plans before they come to fruition. (we can be better at this, though)
It is so much easier to discriminate when people fly their flag proudly. I applaud that.
I think you meant ‘publicly’? We are all entirely free to go meet our hooded cults in the woods and swear a blood pact of secrecy. Or whatever.
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I also think equating terrorist sympathizing with refusal to take part in a ceremony because of religious beliefs is silly.
I meant “legally.” When you said freely associate in your original post, I presumed you meant in the context of the post and our discussion (i.e., doing business with whom we want with no law forbidding it). The lady was free not to sell the gay man flowers for her wedding, even though it was against the law.
The comparison is silly, but you are the one who proposed the view that it was abhorrent that a law would prohibit a person from doing business with any one they so choose.
And by the way, as I stated to Mespo, the case decided did not say that the lady had to participate in the gay wedding ceremony, only that she could not refuse to sell flowers to the gay man solely because she knew it was for his gay wedding.
Then “because it’s for a gay wedding, AND I FELT LIKE IT” should be OK?
If she refused to provide flowers to a heterosexual Jewish or Muslim couple, claiming religious grounds, that would be OK?
I think that would be awful. I believe it would be her right to do so.
Steg – it would make for an interesting case. I would love to see the SC twist the Constitution to defend either side of that case. 🙂
I think within the context, we are referring also to the first amendment- which is the document ratified by the people for the people. Anyone who freely associates with terrorists aligns themselves explicitly outside our peaceful legal constitution and against our people. We are talking about peaceful trade among our citizens.
The florist was not discriminating against them based on their sexual orientation. She had been serving as their florist for several years. It was the providing flowers to the wedding which did her in. They screamed discrimination. She replied that she would be at odds with tenants of her faith. She is being asked to go against her religious believes and abetting the sinning of another or loose their business,their home, their life’s savings, their retirement. So much for freedom of religion.
Freedoms require we act responsibly and respect others. The majority of the time, one persons rights can be seen to infringe on the rights of another. This country does not work well when people only think about their rights while showing no respect for the rights of others.
This ruling diminishes the authority of government, law, and of the judiciary. For some strange reason, Darren thinks Stutzman helped the gay community. No, people who still have a conscience against same sex fornication will rebel more strongly against government, law and the judiciary who creates and supports these unreasonable laws.
The issue of “blacks” and “gays” is very different, but the legislature has been deceived by the gay community into conflating them. A person’s race is not a moral issue. A person makes no choice about what race he will be born as. In contrast, people make sexual choices during their life, and they do make choices about same sex relationships. Regardless of the way that the law speaks today, same sex relationships are a perversion of the institution of marriage. No law is going to change that fact. The conscience of people may be wounded on this, and become dark and confused, but this fact will remain.
The institution of marriage is about opposite genders coming together to form a whole, and the fruit of that is the creation of a family with children and new relationships being formed, husband and wife, mother and daughter, mother and son, father and daughter, father and son, uncles, aunts, and cousins, etc. Laws that support gay marriage have completely destroyed this understanding for future generations.
The best direction of government now is toward neutrality about sexual relations. Instead of accepting and supporting gays, identifying them as a special class of protected citizens, it needs to backpedal to a more libertarian perspective. Court rulings like this one will lead to societal unrest and rebellion instead of the hoped for acceptance of homosexuality, bisexuality, transsexuality, pedophilia, beastiality and other forms of sexual orientation. Expect opposition to become more vocal not less vocal.
David, it is clear where you stand on this issue from your comment, and I can respect that, but couldn’t disagree more with numerous aspects of your comment, which make some pretty sweeping generalizations and conclusions.
“No, people who still have a conscience against same sex fornication will rebel more strongly against government, law and the judiciary who creates and supports these unreasonable laws.”
While there may be some who will react in this way, my own little bubble of a world has shown just the opposite. For example, my grandmother-in-law and mother-in-law, both Catholics, have come around to accept it (it only took one member of the extended family to come out). Look at other developed countries where it has been legal for years (e.g., Canada, Spain, Netherlands, Norway, Belgium,); yet no rebellions to date have occurred to my knowledge.
“A person’s race is not a moral issue. A person makes no choice about what race he will be born as. In contrast, people make sexual choices during their life, and they do make choices about same sex relationships.”
You imply it is immoral to be gay. I and many others disagree. Besides, morals change, along with societal norms and cultures, and the related laws often change with them. What is immoral to you is not automatically immoral to another, nor should it be. Part of freedom is doing as you wish, even if others think it immoral. Obviously there are some instances where people’s beliefs and morals are almost universally accepted (e.g., stealing is bad, murder is bad, rape is bad) and the law reflects that. But there are also instances in which some people think things are immoral (e.g., listening to rap music, drinking alcohol, having sex outside of marriage) in which there are no laws, nor should there be. People’s beliefs and morals change, and often for good reason (e.g., slavery and discrimination against others).
Your statement about gays being a moral choice is certainly not settled as fact, and is yet another sweeping generalization. Some gays say they knew at a very young age, while others claim to not have found out until later in life, and still others may consider themselves bisexuals. I think you oversimplify the issue.
“The institution of marriage is about …”
That is what it it means to you, but it may mean something else to others. For example, your statement presumes that all married couples want to have children, which is certainly not the case. Also, in America or any other country where same-sex marriage is legal, the new relationships you mention (uncle, aunt, son, daughter, etc.) have not vanished.
“Court rulings like this one will lead to societal unrest and rebellion instead of the hoped for acceptance of homosexuality, bisexuality, transsexuality, pedophilia, beastiality and other forms of sexual orientation. Expect opposition to become more vocal not less vocal.”
Again, other western countries have legalized same-sex marriage for years, and no signs of widespread societal unrest and rebellion. And none in this country either since the decision to legalize same-sex marriage. And I don’t recall seeing any unrest or rebellion in response to the court decision in the post.
Juris, anecdotes of acceptance by some, even by a majority, would not indicate the problems caused by the positive creation of law which runs contrary to Natural Law.
Same sex marriage is of recent origin, despite your sophistry that seeks to imply that other countries have accepted it for years without any negative effects. The Netherlands was the first country to create same sex marriage, and that law went into effect in April of 2001, not even two decades ago.
The institution of marriage evolved over thousands of years and became a bedrock and foundation of modern civilization. Marriage became of public concern for the courts because some men and women violated their commitment to the family unit, to have and raise children together. Property rights and inheritance also became important public issues. Same sex unions, which have no biological ability to produce a family with children, did not have many of these same legal issues. For their issues, civil unions and domestic partnerships constituted the legal arrangements. But now the law has caved into political activism and redefined marriage. You may think marriage can mean different things to different people, but as a matter of law, it should apply equally to everybody. The concept of same sex marriage cannot apply equally to everybody, as this case demonstrates. Same sex marriage is contrary to Nature, contrary to the principle that we are born as either male or female into this world, and that our life is made complete by joining with someone of the opposite sex. If male and female were equal and the same, you might have a case, but the genders are not equal in nature and ability. Females have abilities that men do not have, and men have abilities that females lack. By coming together in the institution of marriage, the weaknesses of one gender are helped by the strengths found in the opposite gender.
In regards to civil society, the family unit is the smallest political unit. Weakening the family unit weakens society as a whole. You and others are free to think otherwise, but it does not change the truth. The civil unrest that results from positive law deviating from Natural Law is not noticed instantaneously. It takes a long time, but ultimately governments fall because of it. The election of President Trump is indicative of the civil unrest and undercurrents that have taken place. These are results of same sex marriage and other laws which favor particular groups over others. For peace and unity, laws must be made conservatively and must apply to all people equally without favoritism.
David, just what are these “problems caused by the positive creation of law which runs contrary to Natural Law.” And just where can I find a copy of these Natural laws you speak of? How are they enforced?
I fail to see the sophistry in responding to your the-sky-is-falling comment of rebellion and civil unrest by pointing out that numerous developed countries have allowed same-sex marriage for years (yes, one as far back as 2001) without any such thing. I will be happy to stand corrected in the face of some objective evidence to support your doom and gloom prediction.
“The institution of marriage evolved over thousands of years and became a bedrock and foundation of modern civilization.” As did slavery and colonization, depending on how you define “modern civilization.”
“You may think marriage can mean different things to different people, but as a matter of law, it should apply equally to everybody. The concept of same sex marriage cannot apply equally to everybody, as this case demonstrates.”
I am not following you. But if anything, this case (and the WA law it is enforcing) demonstrates that in this instance, it can apply equally to everybody.
“Same sex marriage is contrary to Nature, contrary to the principle that we are born as either male or female into this world, and that our life is made complete by joining with someone of the opposite sex.”
Once again, you speak in absolutes of black and white, but about an area that is full of gray (and rainbow!). You presume to know what makes everyone else’s lives complete.
“In regards to civil society, the family unit is the smallest political unit. Weakening the family unit weakens society as a whole. You and others are free to think otherwise, but it does not change the truth. The civil unrest that results from positive law deviating from Natural Law is not noticed instantaneously. It takes a long time, but ultimately governments fall because of it.”
So same-sex marriage weakens the family unit? Please provide some evidence to support this claim. And again, where is this civil unrest you speak of resulting from positive law deviating from Natural Law? Give me an example of a “government falling because of it.”
And how do you make the “yuuuge” leap from same-sex marriage to Trump getting elected?
Juris, Natural Law Theory is a broad subject that we have discussed much in the past in this forum. I am sorry that I do not have the time right now to go into it more specifically for you. I would refer you to William Blackstone’s commentaries on the laws of England. Basically, civil laws are natural laws meant to be discovered the same way that scientific natural laws are discovered.
We live in a world filled with terrorism, protestors, and intense civil unrest, so forgive my incredulity when you claim to see no evidence of civil unrest.
In regards to same sex marriage weakening the family unit, understanding basic biology makes this self evident. Same sex marriage cannot create the kind of family unit that the institution of marriage reinforces. Surely you understand that a primary biological purpose of sex is reproduction and the propagation of the human species. Same sex partnerships are inept biologically in accomplishing that purpose. Coitus also produces a bonding between opposite genders, but unfortunately, same sex partnerships cannot achieve coitus. It is biologically impossible.
The proper lawful understanding of the institution of marriage must work in concert with our understanding of natural laws that govern our biology.
Consider the following talk from gay activist Masha Gessen whose own personal experience of 30 years as a gay activist made it clear to her that gay marriage will change marriage. Ultimately she learned that it would be best if the institution of marriage was destroyed. She rightly explains that it is a lie for gay people to claim that gay marriage would not change the millennial aged institution of marriage. Her so-called family consists of 3 kids and 5 parents comprising 2 groups of 3 with 2 citizenships. Her brother fathers one of the children, and she has an adopted son. Listen to her explain the new problems for same sex relationships for yourself in the following YouTube video:
[embed] https://youtu.be/n9M0xcs2Vw4 [/embed]
I am only vaguely familiar with Blackstone and his writings regarding the English common law, but I fail to see what that, or Natural Law or Natural Law Theory, has to do with the subject at hand. The SCOTUS ruled that same-sex marriages are guaranteed by the Constitution. Whether you agree or not, that is the law of the land, regardless of what your Natural Law says or what your religious beliefs are. I don’t like paying taxes. What does Natural Law say about taxes?
As to the civil unrest and rebellion, I never denied that it existed, only that I am not aware of any due to same-sex marriage being legalized in any country, including this one. You were the one that stated it so and I merely asked for some objective evidence to support your claim. You have yet to provide any.
I fail to see how understanding biology has anything to do with same-sex marriage weakening the family unit. You conflate the concept of pro-creation with same-sex marriage. You presume that marriage has an all encompassing universal meaning (procreate, start a family), but again, not all married people desire to have kids. Following you logic, heterosexual married couples incapable of having children weaken the family unit, as they cannot procreate.
I never said same-sex couples’ marriages are just like heterosexual marriages. Sure they may bring up some different issues. But that doesn’t mean all traditional marriages are in jeopardy, or that the family unit is in jeopardy. And you have yet to provide any support to the contrary.
Juris, I do not agree with every decision by SCOTUS as applying to every citizen and neither should you. Sometimes they get it wrong, and wrong decisions should be ignored by the rest of society, except perhaps for the particular individuals involved in the case being decided. Thomas Jefferson and Abraham Lincoln also did not believe the federal government needed to consider every decision made by SCOTUS to be universal law for everyone the instant they made a decision. You give SCOTUS too much power, which would create an oligarchy of tyrants over the United States. Consider Abraham Lincoln’s words from his inaugural address to the nation on the heels of Dred Scott decision:
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I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.
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Abraham Lincoln, 1861.
Juris, concerning your comment about heterosexual married couples being incapable of having children, let me just say that if heterosexual couples were incapable of having children, and if gender equality was a reality in nature (in other words, no difference between the genders and therefore no differences between male-male, male-female, and female-female unions), then the institution of marriage would not exist.
https://youtu.be/n9M0xcs2Vw4
Merely substitute “blacks” for “gays” in this story, and the answer under the law is very clear. There is no controversy or even a semi-plausible argument for the business owner. Discrimination is discrimination.
So, if a white supremacist went to a black baker and wanted a cake with some men in sheets lighting a cross, you would say the baker bake the cake? After all, discrimination is discrimination, eh?
Here is another reason why, as a general matter, I don’t think it is a good idea to excuse persons from complying with laws of general application based on genuinely held religious beliefs. Going down that road opens the door to people falsely claiming a genuinely held religious belief in order to avoid complying with the law.
Thus, if there is litigation (or an administrative hearing) to determine whether the person claiming a genuinely held religious belief should be excused from complying with the law, it will be necessary to take discovery on the questions of 1) whether the refusal to comply with the law is based on a “real” religious belief, and 2) whether that belief is “genuine.” There is no other way to weed out people who are using religion as a pretext in an effort to avoid complying with a law of general application. (Example, people have in the past used so-called “religious beliefs” as an excuse to avoid paying taxes.)
Pursuing that type of inquiry will be extremely intrusive. It will also require the finder of fact to make some very difficult calls. While there will be some relatively easy calls at both ends of the spectrum, I don’t think the courts should get involved in this kind of dispute. Imagine how fun it would be to defend your own religious beliefs in court or in a deposition as both “real” and “genuinely held.”
Religious beliefs are based on faith. They are not necessarily logical or consistent. Someone may not even be familiar with the entire doctrine of a particular faith or may disagree with portions of a faith’s doctrine. Religious beliefs also change, sometimes suddenly, because of a particular event, such as a near death experience, loss of trust of a church leader, or because church doctrine changes. Churches have schisms.
Courts should stay out of this area. If someone says that they have a genuinely held religious belief, accept them at their word, but don’t excuse them from a law of general application, as a general matter.
Are there areas where it may be appropriate to excuse someone from complying with a law of general application based on genuinely held religious beliefs? I think so. But that should be the exception, and not the rule. Otherwise we run a serious risk of “theocratic anarchy.” (How’s that for an oxymoron?)
“Here is another reason why, as a general matter, I don’t think it is a good idea to excuse persons from complying with laws of general application based on genuinely held religious beliefs. Going down that road opens the door to people falsely claiming a genuinely held religious belief in order to avoid complying with the law. ”
Ya’ mean like the self-proclaimed transgender who hums “I feel pretty” as he waltzes into the womens’ lockerroom????
http://www.exmna.org/
Ex-Muslims of North America
I keep coming back to my discussion with people who opposed gay marriage. I support gay marriage, and I asked them, “How does this affect you? What business is it of ours if 2 men want to get married? Isn’t committing to a long term relationship beneficial for society?” I always felt the Old Testament Biblical dim view on homosexuality was based on the hedonistic, destructive form of sexuality practiced by the Romans and their predecessors of the time, that often included slavery and/or assault, or even career advancement. But I’m no religious scholar.
But all of these lawsuits, and other cases where journalists hounded little pizza parlors out of business made a liar out of me. It does affect those who for whatever reason do not support gay marriage. My own grandparents would have opposed gay marriage, as would most of my older relatives. That was normal for their generation. If they were alive today, it could be them hounded out of business. I feel like we have become intolerant of those who disagree with us. I, personally, would not risk eating a cake someone was forced to bake for me against her will. Nor would I trust a photographer or florist to do their best work on my important big day if they were forced.
However, it is also been pointed out that blacks used to be refused service, and religious views can be manufactured to support bias. So I see both sides of the issue.
And yet, I am uncomfortable with forcing people out of business if they don’t want to participate in a religious ceremony. I also am keenly aware that I oppose legalizing polygamy as being harmful to society and the women who participate, as well as inevitably producing Lost Boys in communities where such practices are concentrated. How would I feel if I was forced to participate in the marriage of a 16 year old, with legal parental consent, to a 46 year old man with 5 other wives? Not too good. One day polygamy could be legalized, instead of just calling concubines spiritual wives. And then businesses will be forced to participate.
I’m still for gay marriage, but I haven’t made up my mind yet on forcing all businesses to participate. Is gay marriage really the same frontier as the systemwide violence and bigotry against former slaves and Jim Crow? I suppose ethics need to catch up with the times, and I’ll have to finally come to some conclusion on this issue.
I think that was my most wishy washy comment ever. Sorry, guys.
Karen, I think that was a very thoughtful comment to add to the discussion and highlights numerous concerns from different angles of a complicated issue. I have no doubt that we would all benefit if more individuals could be as open-minded and objective when considering any issue. Too many people (I am guilty sometimes too!) are so quick to take a position on any given issue without any critical thought such as yours. We live in a world where “I am not sure I would have to think about that a little more and maybe do some research” too often times is not an accepted answer.
Karen:
This article answers your questions about gay marriage: “How does this affect you? What business is it of ours if 2 men want to get married? Isn’t committing to a long term relationship beneficial for society?”
And the answer is: It compels the business to participate in the ceremony whether they want to or not.
The government needs to get out of the marriage business altogether.
I only glanced over it, but I don’t think the case compels the florist to “participate in the ceremony.” Plaintiffs just wanted to buy wedding flowers. In that sense, they would be more like the tailor who sold the wedding attire or the cooks that made the food. I think making a business “participate in the ceremony” (as opposed to just selling the flowers for the ceremony) is going too far. Which brings to mind–the interesting issue of a DJ or band (which is more like participating in the ceremony) turning down a gay wedding gig based on religious beliefs.
In this instance, I tend to look at it more of the government-prohibiting-discrimination-business more so than getting in the marriage business, which I do not agree it should get out of. But for the discrimination, the government would not be in the marriage business, at least not in this instance.
Juris:
The florist generally brings the flowers and sets the display after looking over the venue. They also participate in the planning. You can cheap out and bring them yourself. But it’s usually no mere cash and carry transaction like the purchase for the fiance’ was.
Mespo, my wife did the wedding planning! 🙂 But I am pretty sure we cheaped out, as you put it. Like I said, I think it is different and the issue gets a lot more murky when you force a company or its employees to do more than just sell a good (e.g., having to bring the flowers or otherwise having to participate in some way, or a videographer’s or photographer’s services). Maybe that is where a Court will draw the line and religious freedom wins out. According to the facts of the opinion, the parties in the lawsuit never got that far:
“Ingersoll did not have a chance to specify what kind of flowers or floral arrangements he was seeking before Stutzman told him that she would not serve him. They also did not discuss whether Stutzman would be asked to bring the arrangements to the wedding location or whether the flowers would be picked up from her shop.”
That’s true. There could be a line drawn at cash and carry versus active participation which is a fair compromise on fundamental rights. Oh, and no offense intended about the term “cheaping out.” That’s how lots of weddings are done in the South, not sure if it applies everywhere. At our wedding, the florist not only arranged she was an invited guest.
“The government needs to get out of the marriage business altogether.”
AMEN!!!!!
One way the florist could get around the problem is to have someone else in the shop make the arrangement. If she is the only person in the shop, she should just withhold judgement and follow the law. Besides, her religious authority, Jesus Christ, never said a word about homosexuals or gay marriage.
Bettykath:
Do you really want to get into the biblical view of homosexuals?
Let me start with, I am not a republican or democrat but a voter. It is my belief that businesses that want to continue doing business, should look the other way when it comes to these kind of judgements. As a business owner, one should not be judging one way or another, the lifestyle of a customer. No matter how one feels, it is a no win situation. One more example of intolerance in our country today. Do the service, with as little amount of involvement as possible, but do the service.
“From a strictly business point of view I fully do not understand why a person would throw away good business.”
************************
I wouldn’t diminish the case’s ramifications as “petty.” That is the florist’s choice and that is what this case is all about. It’s a clear collision between rights to practice religion and the rights of LGBT. The Washington Court sided with the LGBT but that doesn’t diminish the fundamental right to practice religion and freedom of conscience. Personally, I think laws compelling sales or service by any business are wrong-headed. It’s seems to me to be a 13th Amendment issue regardless of the payment received. You don’t have to be a slave regardless of the compensation received. The bigger question is: Can I charge them more?
Mespo,
No longer blindly hostile towards religion? What changed?
Still think it’s so much bunkum but I do recognize the right to practice it. I ‘ve mellowed a bit on its consolatory benefits for a lot of people. Either way good to hear from you!
Mespo
This is not directly about “practicing their religion” unless their religious beliefs call for discriminating against gays in business transactions. This is first and foremost about providing services to the public.
If you provide services to the public you may not discriminate against gays. Or blacks. Period. It is ok to discrimate against someone who wants to rob your store, who has no clothes on, etc. You are intelligent enough to understand the distinction. And if you want to close your store on Sundays to “practice your religion” you are allowed to do so. Just don’t close your store only to gays who want floral displays for their weddings.
You can also publicly profess to be against gay marriage. You can discriminate against gays in your home.
But if you run a business establishment that caters to the public, no discrimination against gays.
Your argument that there is a 13th Amendment violation is specious. No one is forcing the florist to run a florist shop.
Don de Drain:
I guess you didn’t bother to read my comment. I merely said we lawfully discriminate every day and that only some discrimination is legally prohibited. I also think that it’s a bad idea for private business owners to be compelled to act if it interferes with their sincerely held religious beliefs and participating in a celebration of what one considers an immoral union is clearly a decision fraught with religious considerations. In a conflict between two fundamental rights, I’d err on the side of more freedom not less and the right to buy a floral arrangement from a particular store does not seem fundamental to me. As to the prohibitions of the 13th Amendment, I see a definite parallel between being compelled by government disapprobation to pick cotton and being forced to arrange flowers under the same disapprobation. Call me an libertarian agrarian.
I think Don de Drain has the better argument here. Mespo, I would err on the side of not discriminating against a class of the citizenry. What happens if it is against one’s religion for bi-racial marriage? Or inter-religious marriage?
I am curious to know what religion this lady is and what her specific religious basis she claims prohibits her from selling flowers to a gay person for their wedding. From the post above, this lady served this man flowers numerous times before knowing he was gay and that they were going to his gay partner. Would that not offend her religion just the same?
It’s a judgment call, but I tend to favor the couple trying to run their business as they see fit over the gay couple looking for a lawsuit. This case should have been mediated. As to the prior purchases, it may not offend the florist to fill an order for the gay lover but it might offend them to do wedding flowers where many of the guests will know where the flowers came from. Just a thought.
I agree it is a close issue, and can see why religious folks would especially think so. In full disclosure, my only religious beliefs are to try to be a good person (whatever the hell that means) and try not to judge others. What does it for me, as stressed by Don de Drain, she decided to sell to the general public.
I glanced over the opinion linked in the post: The lady is Southern Baptist, knew the guy was gay, but sold him flowers for 9 years. Her argument, as I see it, is as follows: Gay marriage is against my religion. Providing flowers for a gay wedding supports something that is against my religion. Thus, I cannot do so, otherwise I would be endorsing something that is against my religion. Surely if gay marriage is against her religion, then so is a gay relationship? But she sold flowers to him anyway for years, and she admitted to selling flowers to other gay and lesbian couples as well.
It will be interesting to see if this is appealed to the fed level. I haven’t compared, but I am curious if the SCOTUS Hobby Lobby decision comes into play here. Con law is not my area but I thought SCOTUS designated sexual orientation a protected class, which would give the state statute at issue protecting it much deference.
A balancing act indeed.
Don de Drain – the government is forcing the florist to work against their religious beliefs or go out of business. That is their choice. In this case their were plenty of people who offered to make up the flowers for them. This gay couple decided to become victims. Then they decided to sue.
I’d have made them the worst arrangement known to man.
Short people got no reason
Short people got no reason
Short people got no reason
To live
They got little hands
And little eyes
And they walk around
Tellin’ great big lies
They got little noses
And tiny little teeth
They wear platform shoes
On their nasty little feet
Well, I don’t want no short people
Don’t want no short people
Don’t want no short people
Round here
Short people are just the same
As you and I
(A fool such as I)
All men are brothers
Until the day they die
(It’s a wonderful world)
Short people got nobody
Short people got nobody
Short people got nobody
To love
They got little baby legs
And they stand so low
You got to pick ’em up
Just to say hello
They got little cars
That got beep, beep, beep
They got little voices
Goin’ peep, peep, peep
They got grubby little fingers
And dirty little minds
They’re gonna get you every time
Well, I don’t want no short people
Don’t want no short people
Don’t want no short people
‘Round here
Songwriters
NEWMAN, RANDY
—
Now all you gotta do is substitute some words for any caste of people. Bent people, lame people, old people, young millennials, Dem people, Gopher people, Trump people, Hillary people, … you name it. I happen to think that Hillary People ought to be a hit song at this time. Or maybe Media People. Or “News People”. Don’t want no News People round here.
This case will be relevant to the North Carolina statute which is sometimes referred to as: Dongs Only or No Dongs Allowed statute. In essence bent people are not supposed to go into the public restroom of their choice. Why they call these places “rest room” is beyond me. But for a flower arranger to refuse service to a bent person should be a right of free speech and the right to post what you want on a wedding cake should be the right of any baker. Floral shops and bakeries have to be protected. There is a song by Randy Newman written many years back called: Short People.
The first lyric is: Short people got no reason. Short people got NO reason. Short people got no reason to live.
Then it goes on: They got little bitty eyes, little bitty feet, little bitty voices that go peep peep peep.
In regards to the State of Washington: lawyers need to go to law school before taking the bar exam. Those dorks in the lawsuit against Trump think that some pirate from Yemen who has never set foot here on American soil has a constitutional right in an American court. Maybe a pirate in the Carribean but not a pirate from the Mediterrainian.
Washington State should secede from the Union. They should travel around to other states. We don’t want no bent people round here.
Has anyone ever considered the 13th Amendment in this context? Forget about the 1st Amendment for the moment. How can one person compel another person to work against her will? I mean slavery days are over. Nobody can force Stutzman to labor when she does not want to labor. If she does not want to build a floral arrangement for whatever reason, no one can compel her to do so just like no one can force another to plow a field if he or she does not want to plow a field.
Before anyone attempts to compare this situation to racial or gender discrimination consider that Stutzman’s case is to be distinguished from the situation where a business has commodities or services already made for sale to the public, i.e, baked goods, hotel rooms, a restaurant. So, if Stutzman had an arrangement already made and offered for sale to the public, no further labor would be required of Stutzman (except for the ministerial act of accepting payment) and the gay couple (or anyone else) would have a right to purchase that arrangement. On the other hand, to force Stutzman to work for the couple essentially makes Stutzman the slave of the couple, albeit one who would be compensated for her services. Methinks this runs afoul of the 13th Amendment.
Vince Jankoski – I like this enforced slavery argument.
As is the unequivocal right of every individual, she chose not to provide for a venue she finds offensive.
Wrong Just Some Guy. There is no unequivocal right to discriminate. You may do all the discriminating you want in your home or other such personal spaces. But you have no unrestricted right to do so outside your home or other personal spaces. You have no absolute or unequivocal right to discriminate in any public or semi-public space. A business is not a personal nor private space. Society has the right and is justified in restricting what a business can and cannot do when it comes to making some choices about dealing with customers/consumers. This is one of those areas.
peltonrandy – as a business owner, I have certain rights about the people who shop in my store. For instance, if someone has been kiting checks in my store, I do not have to serve them. If I run a food establishment, I can require shirts and shoes before people be seated and feed. If I run a lingerie store, I can refuse to serve men. If I run a grocery store and I find someone grazing, I can throw them out.
pelton – I do not know what you do in real life, but if you or your boss owns a business, they control that space. Ask who pays the taxes on it?
What Paul said plus: You have every right and sometimes a duty to discriminate. If a guy with a mask and gun approaches your store, you have every right to lock your door even as you would open it to a mother and child. You can have a half-off day for veterans and charge non-veterans more. You can ban customers with pet animals and admit those who don’t have them. What you can’t do is violate anti-discrimination laws which classify groups by very particularized immutable characteristics and afford them access. We can debate the value of such laws now, but we the fact that we can discriminate is beyond debate generally.
WRONG. My business is my business and i have the right to refuse service to whomever i so chose. Her mistake was providing service from the start knowing that he was gay and buying for the same sex. People are having memory lapses for YEARS and still day African Americans are refused services. Just the other day a white barber refuse to serve a black man a trim stating he didn’t know how to cut black hair. Hair is hair.
Carol Morgan – I can only speak from what my black students have told me, but cutting black hair is different that cutting white hair.
Actually you can discriminate all you want. You just can’t discriminate against certain classes that are more equal than others.
Discriminate against same-sex and you’re in trouble. Discrimate against a same-sex couple because they are [liberal, conservative, or whatever] and you’re fine. Obviously you’re have to convince a jury that was your reason but the point remains. The hypocrisy of discrimination laws is only certain groups are protected.
Court declared the florist business, the artistic talents of. the happiness to provide as unfit to create items for male-female weddings. It is written ‘Thou hast ordered all things in measure, and number and weight.’ herein the court assumes a meaning of discrimination, an infinite multitude of, to actually exist; which is of course impossible because it would mean that this thing, discrimination, is dependent on an infinity for its existence and its actuality would never be accomplished because it is impossible to transverse what is infinite.
This can be shown in the work of the artisan requiring a certain multitude, herein, art in the soul, movement of the hand and a flower and supposing such thing were infinitely multiplied the work would never be completed as dependent upon an infinite meaning of marriage for anything less would be by definition, a willful act of discrimination which is impossible. This is not to say that some beliefs in definition of bad, but rather of a deficient good, but to include a definition of a deficient good into the work of the artisan, into ones definition makes that definition bad absolute.
So the court declares that the infinity of deficient good shall be as equal to that which is good, forever reducing the measure of the artisan to what is bad absolute . . .