On Feb. 16, Washington’s state Supreme Court affirmed a lower court’s judgment that the owner of a small flower shop violated state anti-discrimination law by refusing, on religious grounds, to provide floral arrangements for a same-sex wedding. In doing so, the court rejected the owner’s argument for an exemption from the law based on her constitutional rights to free speech, free exercise and free association. If any case could have provided a basis for distinguishing between discrimination based on sexual orientation and the narrower refusal to participate in a same-sex wedding, this would have been it.
The florist, Barronelle Stutzman, had served the gay customers, Robert Ingersoll and Curt Freed, many times over a number of years, including by providing flowers for birthdays and other personal events; she objected only to providing flowers for their wedding. The court declined to recognize such a distinction, finding that a refusal to provide services for a wedding between members of the same sex amounts to discrimination based on sexual orientation.
These are hard cases. I do not believe that business owners in Ms. Stutzman’s position should be forced to provide services that violate their consciences when there are other avenues for the services in question. But the heavy lifting of balancing religious liberty with anti-discrimination norms needs to be done by legislatures. Courts have limited tools at their disposal, and some of the contortions required to impose constitutional limitations on broadly construed anti-discrimination statutes are daunting.
The heavy lifting of balancing religious liberty with anti-discrimination norms needs to be done by legislatures.
Sweeping vilifications of the court’s decision are not helpful. Consider Christian conservative leader Tony Perkins’s response to the ruling. He accused the court of “seeking to drive families from their businesses...as the result of crippling government-imposed fines designed to force them to deny their faith.” Suggesting that the judges were “seeking to drive” Ms. Stutzman from her business goes far beyond President Donald J. Trump’s tweets in undermining confidence in the rule of law, and it runs contrary to the foundational premises of civil discourse. (That some liberal critics are doing the same in characterizing Supreme Court nominee Neil Gorsuch’s pro-religious liberty rulings does not make it any less unsavory.)
Though the ruling against Ms. Stutzman is not surprising, the reasoning is of concern. On at least three key points the court opts for an overly simplistic application of the law to the facts. Here, the court declines opportunities to undertake the type of contextual, nuanced analysis that is key to balancing commercial providers’ rights of conscience against consumers’ rights to enjoy full and free access to the marketplace. The legislature remains a better stage for such an analysis, but the court ruling exacerbated the shortsightedness of the statutory framework.
First, consistent with other recent cases, the importance of, and access to, the goods or services in question appear irrelevant to the court’s application of anti-discrimination law to commercial providers. If we aim to take pluralism seriously, our anti-discrimination laws should focus on access to goods and services deemed foundational to participation in our society. This argument was emphatically rejected by the Washington Supreme Court. The court quoted the customer’s brief approvingly for the notion that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.”
Well, the 1960s civil rights cases were not just about access to sandwiches. They were about access to sandwiches and housing and jobs and schools and parks and water fountains and voting booths and transportation and so much else. Jim Crow was a tightly woven web of laws and social norms aimed at the systemic oppression and subjugation of blacks; the harms were not going to be remedied by either legislators or judges wielding scalpels. The 1960s civil rights laws were sledgehammers, as they needed to be.
Fast-forward to 2013 and the debate over the nature of marriage. Once the news broke that Mr. Ingersoll and Mr. Sneed had been turned away by Ms. Stutzman, several florists offered to provide flowers for their wedding free of charge. If our legal system lacks the capacity to acknowledge a meaningful difference between Ms. Stutzman’s denial of flowers and the treatment of blacks under Jim Crow, the liberty of conscience is headed for a very rough ride.
To be sure, same-sex couples suffer dignitary harms from a denial of service—and those dignitary harms may prudently factor into a Christian provider’s decision-making on these issues —but harnessing the immense power of the state for the eradication of dignitary harms is an unwise and unrealistic project for a society marked by deep moral pluralism. Reasonable people can disagree about the deference that the liberty of conscience should enjoy in the commercial sphere; at a minimum, though, we should recognize the cost that its eradication from this sphere has for providers’ ability to live in accordance with their fundamental commitments and the departure it represents from American traditions. When access is not threatened, the case for government coercion of conscience in the marketplace weakens considerably.
Harnessing the immense power of the state for the eradication of dignitary harms is an unrealistic project for a pluralistic society.
Second, the court’s reasoning renders the right of expression a non-starter for wedding service providers. The court recounted Ms. Stutzman’s testimony that she had also declined wedding business on “[m]ajor holidays, when we don’t have the staff or if they want particular flowers that we can’t get in the time frame they need.” As such, according to the court, “an outside observer may be left to wonder whether a wedding was declined for one of at least three reasons: a religious objection, insufficient staff, or insufficient stock.”
If the multiple potential messages conveyed by a decision not to provide flowers precludes a constitutionally significant expressive element, what service provider would have a right of expression implicated by a request to participate in a same-sex wedding? Not a wedding planner. Not a decorator. Not a chef. Not a venue owner. Not a musician or singer. Perhaps not even an officiant with religious objections who is not representing a religious organization. (Religious organizations enjoy an explicit statutory exemption.) Under the reasoning of the Washington court, if you are selling goods or services for weddings, the Constitution will not empower you to decline weddings between members of the same sex, regardless of how personalized or artistic your work might be.
Third, the court succumbed to the temptation to treat the religious beliefs implicated by a wedding as interchangeable for purposes of respecting a provider’s conscience. The court reasoned: “The decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. As Stutzman acknowledged at [her] deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism.”
But if the concern is the likelihood of perceptions created by participation in a wedding ceremony, the endorsement of beliefs held by the couple getting married is not equivalent to the endorsement of belief about marriage represented by the wedding itself. I have never heard it suggested that my presence at a wedding is a signal that I agree with the couple’s beliefs about any particular subject. When the belief in question is embodied in the nature of the marriage itself, the perception is a more pressing concern. I know Christians with traditional views of marriage who have attended same-sex weddings after concluding that their presence is more likely to be perceived as an expression of love and support for the couple than as an expression of approval for same-sex marriage. As a matter of faith, Christians will reach different conclusions on the appropriate response. As a matter of law, it is not accurate to equate a provider’s conscience-driven refusal to participate in same-sex weddings with her decision to participate in weddings within faith traditions to which she does not adhere.
Denying Ms. Stutzman’s right to refuse her services for a same-sex wedding is the easier path, to be sure. For legislators, it extends a ready-made narrative of our nation’s progress in rooting out discrimination. Those who encourage our elected officials to take a different approach bear the burden of proposing a counternarrative that does not appear to roll back the nation’s overdue promises to those who have suffered real persecution in our society. For judges, the path avoids the messy line-drawing and factual inquiries required by a more nuanced approach. It is not a path that should be construed as evidence of a judiciary bent on the persecution of minority views. But for a nation that is built on a robust commitment to the liberty of conscience, it is a troubling path. We can and should do better.