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Robert K. VischerFebruary 28, 2017
Barronelle Stutzman, left, meets with supporters outside Washington's state Supreme Court. (AP Photo/Elaine Thompson, File)Barronelle Stutzman, left, meets with supporters outside Washington's state Supreme Court. (AP Photo/Elaine Thompson, File)

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.

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Tim O'Leary
7 years 4 months ago

Terrible ruling. Should be overturned. It is in fact a blatant judicial anti-Christian prejudice (Christophobia). I bet if the plaintiff had been Muslim or gay, they would have found a way to protect their conscientious objections in similar circumstances. it further diminishes the credibility of the legal system.

This goes to show how impossible it is for liberal activist judges to separate themselves from their politics. It is one thing to provide a service at one's business to anyone who comes in, and a totally different thing to require participation in an objectionable ceremony. Remember when gay marriage was being advocated and it's proponents claimed it wouldn't harm anyone? It is also a terrible blight on the lack of charity of the gay couple in the case, who apparently had several times been customers of Ms. Stutzman. If a Muslim or a whatever florist told me they could give me flowers in their store but that a cooperation in a Catholic wedding was against their faith, I would certainly have honored their decision. But, to sue them and try to bankrupt them! How indecent?

Lorrine Thompson
7 years 4 months ago

Mr. O'Leary - -please check the facts before getting irate. The men who sued Ms. Stutzman asked for a $5,000 donation to an LGBTQ organization and that she provide flowers to any customers coming to her public business (as her staff and inventory allowed) including LGBTQ persons getting married. They had no desire to "bankrupt" her. The judges of the Washington Supreme Court are nearly all strongly religions (Christian) themselves, including at three lifelong Catholics, but as their positions require, they do not take religious or other partisan issues into account when deciding court cases based on the Constitution and the law. This same court (with a couple of different members) also decided a decade ago that the WA state constitution did NOT guarantee gay marriage, and in fact, gay marriage had to later be approved by a vote of the people.

I think it would be terrible and completely un-Constitutional if a public Muslim or gay florist chose not to serve you because you were Catholic (or refused to serve an unaccompanied female, or a straight couple, or a mixed-race couple, etc.), and have zero doubt the WA Supreme Court would find the same way.

Derrick Weiller
7 years 4 months ago

Robert K. Vischer:
You have made an outstanding contribution to "the long debate" on the matter of friction between religious liberties and anti-discrimination norms. Indeed, this is a paper that merits saving, re-reading, and passing along to others.

Three reflections:
1) Leaving "the heavy lifting" in this regard to legislatures may have been a reasonable position when legislation was in the hands of men and women of genuine virtue. Citizens United and gerrymandering, however, have placed our state houses in service to religious zealots; zealots who would, if unleashed, substitute their sniveling readings of Chapter and Verse for 1787. Only the courts can check these perversions of polity.

2) It may be, as you suggest, that LGBTQ indignities pale in comparison to Jim Crow. But be mindful that a) Stonewall's efflorescence as a political force is in its infancy; that b) it has only recently become a national friction point; and that c) the bigots, haters, and babblers are just now becoming brashly emboldened by sycophantic politicians. If the leash is not, at this early stage, tight and unyielding the LGBTQ community may very well, in communities across this nation, be left vulnerable to unchecked rank & foul depredations of ChristoZealotry that far exceed mere "indignities". Surely, judicial remedy must "tread carefully"; but its hand is, I believe, more sober, more steady, more reflective, more "adult" than anything we could expect of the bought-and-paid-for legislators who slither through our state houses and our nation's capital.

3) I again compliment you for your thoughtful commentary on the matter of "flowers & cakes". In those moments when I succumb to temptation to rail against claims of "conscience" I'll be re-reading it so that I, too, am held in check.

With regard:

Floyd Grabiel
7 years 4 months ago

I have great respect for Rob Vischer (we attend church together at CTK Mpls) and the St. Thomas Law School. However, I must disagree. Apparently Ms. Stutzman refused service specifically on religious grounds, objecting to gay marriage. In the first place, this sounds like a test case organized by some group to try and make a legal point. That aside, my view is that if one operates a business providing a product or service to the public, then one ought to serve the public. In Minneapolis, Islamic cab drivers were refusing to pick up riders at the airport because some were carrying alcohol, or their pet dog. This refusal is not permitted. Should an Islamic or Jewish grocery store clerk refuse to ring up a customer's pork chops? Should a Presbyterian restaurateur refuse to allow a Catholic patron to order fish on a Friday in Lent? If one has or works in a business serving the public, then serve all the public all the time unless a valid business reason (we are closed, we are out of inventory, we do not have the necessary staff) prevents such service.
This is a simple question of public accommodation. Racial prejudice and refusal to serve blacks was once defended on religious grounds. That was not justified then, and continuing prejudice and refusal to serve LBGT on religious grounds today is equally as bad.
Consider this: Should a Baptist be permitted to refuse to provide flowers to a Roman Catholic wedding on the grounds of a firmly held religious belief that the Catholic Church is the Whore of Babylon?

jerry lawler
7 years 4 months ago

Mr. Gabriel. In equating racial prejudice with gay marriage you are missing an important distinction. Racial prejudice is based on who a person is, vs. what the person does. We are all called to respect each person as a child of God. We are not called to condone everything that person does, and in fact we must stop short in aiding and abetting in another's sinning. This is why Mrs. Sturtzman quite appropriately served LGBT customers for birthdays and other personal events but drew the line at gay marriage.

John Cahill
7 years 4 months ago

do you mean that florists (and others, cake makers for instance) must refuse to serve those who are divorced and remarrying without an annulment.
Should they ask to see the declaration of nullity? If you think that providing auxiliary services to people is aiding and abetting their sinning then you have to draw the line somewhere. As we pay taxes for nuclear weapons whose stockpiling is intrinsically evil let alone contemplating their use (which is the closest we could come in the 21st century to anathema) what do you suggest we do? It is certainly a much graver matter than arranging flowers or baking a cake. You migh t reflect on how each one of us and all of us are complicit in evil and one of those evils is discrimination against our LGBT folk, our brothers and sisters.

Derrick Weiller
7 years 4 months ago

Hey Jerry:
When you concede to circumscribing your marriage as mere coitus you may circumscribe mine as mere sodomy.
Until then,
I expect you to accord mine the same solemn dignity as you accord yours.
Case closed!

Vince Killoran
7 years 4 months ago

This is a baffling argument. Professor Fischer's contrast between racial discrimination and discrimination against gays and lesbians is a distinction without a difference.

Much hinges on his claim that "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." Why on earth shouldn't the state address these harms (the use of the word "immense" is meant to scare readers and, interestingly was used by segregationists legislators in the 1956 "Southern Manifesto." As for "deep moral pluralism": is it so deep that we can't defend the civil rights of Americans against discrimination?

John Cahill
7 years 4 months ago

Excuse me, but florists are not "participating" in any wedding, straight or gay. They are like janitors, (or maybe even sextons) but of course they make a lot more money and maybe have some skills which are different than those of the janitors and sextons who provide a clean and sparkling environment, make sure the furniture, lighting and sound system are in order and who clean up and shut down afterwards.
I think the writer of this article needs to recall and reflect on what it meant to be a Roman Catholic in the USA...even in my childhood (the 1950's) in Eastern Kentucky where we were stung with the prejudice. He also needs to review moral theology 101 on types of cooperation with what is perceived to be evil. He certainly did not explain to my satisfaction why it was wrong to use religion to refuse service to African Americans on religious grounds, but acceptable to refuse service to LGBT for the same reasons. His only argument was the history of Jim Crow laws and the deeply embedded systemic racial prejudice. Is it only a matter of numbers ??? LGBT folks have experience the same deeply embedded hostility and prejudice and bias and all justified by religion. The only difference is the LGBT could "pass" if they behaved properly in public but were always subject to blackmail and/or violent attack. whereas African Americans could not escape their skin... (although some who were able chose to pass for survival) The ruling of the court was just.

Anne Chapman
7 years 4 months ago

Inter-racial marriage was illegal in most of the US during much of its history,, with the last case resolved only a little more than 50 years ago. A judge who ruled against making inter-racial marriage legal in Virginia in 1964 did so based on his religious beliefs.

In 1964, in Virginia. From wiki

"This prompted the county court judge in the case, Leon M. Bazile, to issue a ruling on the long-pending motion to vacate. Echoing Johann Friedrich Blumenbach's 18th-century interpretation of race, the local court wrote:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.[18]:

Those who are in business must comply with the laws of the land, should they not? Just as it would be wrong to discriminate against blacks, or refuse to do flowers for an inter-racial marriage, due to religious belief, it is wrong to discriminate against gay marriages due to religious beliefs. If people are unable in their conscience to do so, they should find a line of work that does not involve offering services to the public.

Nancy D.
7 years 4 months ago

No doubt, the fact that inter racial marriage was illegal in some states was due to an error in procedural and substantive due process law. It is a self evident truth, that can be known through both Faith and reason, that every member of the human race is a human person. Speciation occurs at the moment of conception. A human person can only conceive a human person, thus every son or daughter of a human person can only be, from the moment they are created and brought into being at conception, a human person.

Regardless of race or ancestry, what separates marriage from every other form of Loving relationship, is the ability and desire to exist in relationship as husband and wife, and thus be married to each other.
Every man is free to choose a woman to be his wife, and every woman is free to choose a man to be her husband, as long as that particular man and woman have the ability and desire to exist in relationship as husband and wife. Marriage does not discriminate against men or women, for marriage requires both a man and woman, existing in relationship as husband and wife. Marriage cannot in essence be and not be, existing in relationship as husband and wife, simultaneously.

Nancy D.
7 years 4 months ago

No doubt, the fact that inter racial marriage was illegal in some states was due to an error in procedural and substantive due process law. It is a self evident truth, that can be known through both Faith and reason, that every member of the human race is a human person. Speciation occurs at the moment of conception. A human person can only conceive a human person, thus every son or daughter of a human person can only be, from the moment they are created and brought into being at conception, a human person.

Regardless of race or ancestry, what separates marriage from every other form of Loving relationship, is the ability and desire to exist in relationship as husband and wife, and thus be married to each other.

Nancy D.
7 years 4 months ago

There is no correlation between discriminating against a beloved son or daughter based on ancestry which is immutable, and unconstitutional, and discriminating between appropriate and inappropriate sexual acts which is necessary if one desires that all our beloved brothers and sisters be treated with Dignity and respect in private as well as public. In serving the public, the desire to not serve in any capacity
that would deny our beloved sons and daughters their inherent Right to be treated with Dignity and respect in private as well as in public, and thus not condone the engaging in or affirmation of any act, including any sexual act, that demeans our inherent Dignity as human persons, is an act of authentic Love. An act of authentic Love can never be unjust discrimination.

Lorrine Thompson
7 years 4 months ago

I appreciate the measured tone of this analysis, even though I strongly oppose its conclusion. I signed on expecting the writing in a religious publication to rant and rave, and have been extremely pleasantly surprised to find an intelligent and fair debate on the various sides of the issue, and many very intelligent comments (most of which I agree with). Now I'm reading more articles in this publication and saving a few for later :)

Will Doherty
7 years 4 months ago

This issue is timeless. Civil rights were referenced and now it is sexual orientation. If you want a timeless solution you have to agree that people act unfairly however the most moral economic system is capitalism. The voluntary free exchange of goods and services. Refusing to provide goods and services to someone who is not acting in a way that causes you physical harm is wrong and a bad business plan. Being a bad capitalist is not servicing your customer. The only solution to this timeless issue is to let the free market root out the bad capitalists when the customer stops showing up.

Michael Barberi
7 years 4 months ago

If this case is both a legal issue and a moral one, then many questions would have to be answered.

I wonder if the florist should refuse to sell flowers or their flower services to customers who are practicing what the florist, and the Catholic Church, believe to be grave sin similar to gay marriage? What if the customer belongs to a religion that accepts gay marriage? After all, the two major sects of the Jewish faith, and many non-Catholic Christian Churches do not believe that gay marriage is morally wrong. Is this issue purely an issue of the conscience of the Catholic florist and his/her religious beliefs regardless if the florist is operating a public business offering a 'public service'?

What if a Catholic seeking to purchase flowers told the florist they just came from the pharmacy where they bought some prescription pills for contraception (that is considered 'intrinsically evil' according to the Catholic Church)? Should the florist refuse to sell flowers to this person? What if the florist knows that a customer is single but is practicing fornication because the customer's girlfriend is pregnant? Should the florist refuse to provide flowers and/or flower services to those people?

If the question is one of 'participating in a moral evil', then could any florist refuse services to customers based on 'their religious beliefs' (e.g., their belief that they are participating in a moral evil)?

Is not the issue under consideration a legal issue, namely a question as to whether the florist's business practices (e.g., in this case) violates the Constitution and any non-discrimination laws? Are not judges precluded from taking religion into consideration in such a case or in any legal case? Can Catholic judges recuse themselves on religious grounds in such cases? If they did, would they be violating their oath of office?

If this ruling is overturned on the grounds of religious liberty, could florists of any religion refuse to sell flowers to customers if they believed they were, in some way, participating in a moral evil as determined by their religion?

Oshtur Vishanti
7 years 3 months ago

The article ignores that the business owners have willingly offered their wares to the public, a group that consists of all faiths, knowing that they can’t refuse a customer because of a civil rights category - creed, sexual orientation - it makes no difference. And that is the real danger here, people trying to figure out a way that a business can religiously discriminate against the customer after the invitation to come buy. Who can’t see the danger in this?

If a business can’t serve something to the public they have plenty of options: sell something else to the public, find the people they feel they can serve as a private membership business and make offers of sale to just the membership, or just don’t be the business owner at all and work as an employee that can ask for - and should get - religious accommodation.

But to invite the public and THEN apply a religious orthodoxy test the responding customers must pass to buy the advertised product? Immoral, unAmerican, unChristian and a Pandora’s Box no one should want established.

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