I have signed onto a friend of the court brief urging the Washington Supreme Court to reverse a lower court decision in the case of State of Washington v. Arlene’s Flowers.* In this case, the court found Mrs. Baronelle Stutzman guilty of unlawful discrimination for declining to design custom floral arrangements for a same-sex wedding. The brief, captained by the estimable Steven Smith of the University of San Diego Law School, has been joined by a number of distinguished lawyers of varying political and religious views—including, for example, libertarian legal scholar Richard Epstein. Signers are joined by our concern that upholding the lower court’s decision would harm relations among Americans of all persuasions as it severely and wrongly burdens the free exercise of religion. Great damage would be done in support of two related, fundamentally mistaken assumptions: first, that one whose religious beliefs forbid her from taking certain actions cannot, in fact, refuse without discriminating against the person demanding that she act; second, that the government may habitually require a person to take actions forbidden by her religion—in effect burdening her free exercise of religion by fining her, or worse, for not acting as she is ordered to do.
The Arlene’s Flowers case stems from Mrs. Stutzman’s conviction that her Christian faith forbids her from actively participating in the celebration of a same-sex marriage. For decades, now, Mrs. Stutzman has employed, worked with, and sold goods to homosexuals—including Robert Ingersoll, the man who asked her to create custom floral arrangements for his same-sex marriage. She has shown no invidious discrimination on the basis of sexual preference. But in this instance she declined to use what she deems her God-given talents and efforts, designing custom arrangements and mixing her labors with those of others in celebrating a same-sex marriage. Why? Because she believes, based on her faith, that marriage properly understood is an institution bringing together one man and one woman. And to actively celebrate a marriage violating that precept would be to act against her religion.
Mrs. Stutzman may well lose her business on account of her faith-based refusal to act. She has been sued by Washington State, by the ACLU, and, somewhat belatedly, by the people whose celebration her faith would not allow her to join. But she will not be the only victim, should the Washington Supreme Court not overturn lower-court rulings. Religious freedom will suffer, as will the cause of reasoned discourse in dealing with discrimination in all its forms. The result will be more, not less, conflict in our society as people come to be punished and treated as hateful law breakers when they are not in fact refusing service to people on account of their sexual orientation.
One of the great gifts of our Anglo-American system of law is the presumption of innocence, and of freedom of action and non-action. Under the common law in this country, we can do (or not do) as we please without fear of being prosecuted or sued unless we have violated some pre-existing duty. That is, while we may deserve criticism or blame for acting selfishly or irresponsibly, we can be brought before a court, either by a prosecutor or by another citizen who claims we have wronged him, only if we break a law (by, say, stealing) or by committing a civil wrong—as by breaking a contractual promise or by recklessly driving over someone’s foot.
In a free country, exceptions to this rule must be rare and well founded. In the United States, for some decades now it has been determined that the Fourteenth Amendment’s demand that all Americans enjoy the equal protection of the law, combined with civil rights legislation, forbids us from discriminating on the basis of race and various other categories by, for example, refusing to sell goods to particular persons. Part of the way we eliminated segregation in this country was by making it illegal for anyone to simply say “we will not serve” African Americans—or Irish Americans, Asian Americans, and so on.
The extension of such anti-discrimination protections to various other groups, rooted most prominently in religious affiliation and sexual preference, has brought complications. In particular, the Supreme Court’s decision in Obergefell v. Hodges, requiring that states issue marriage licenses to same-sex couples, has raised serious issues regarding the legal duties of Christians in the commercial sphere. The question, here, is whether Mrs. Stutzman refused to create custom floral arrangements for Robert Ingersoll on account of his being gay.
A merchant who sells to the public but refuses to sell to a homosexual simply because he is gay is violating laws barring discrimination on the basis of sexual orientation. But Mrs. Stutzman did no such thing. One would think that this would be obvious, given the fact that Mrs. Stutzman had repeatedly sold flowers to Mr. Ingersoll over the course of nine years before the incident that produced this litigation. Only when Mr. Ingersoll asked her to design custom floral arrangements specifically for his same-sex wedding did Mrs. Stutzman decline. She never refused to sell him flowers and in the past had designed custom arrangements for other occasions for him. It was only when she was asked to design custom arrangements for a same-sex wedding did she declined.
This is not, then, a case in which some hateful person behind the counter of a store refuses to serve “your kind” of people—on the basis of race, sex, or sexual orientation. Mrs. Stutzman was not discriminating against Mr. Ingersoll at all. She merely declined, on the basis of her religious belief, to participate in an event her faith forbids her from celebrating. Thus, to punish her for declining to engage in this activity is to convict her of an act of discrimination she simply did not commit.
But there is more. The lower court’s holding would punish Mrs. Stutzman for refusing to endorse something her religion holds improper. As the brief points out, the First Amendment has been taken to protect freedom of expression, “including the freedom not to affirm by word or act ideas and causes in which one does not believe. This commitment would be violated by a legal decision ordering a Muslim baker to prepare a cake ridiculing Islam or Mohammed, for example, or sanctioning an African-American baker for refusing to fill an order from the KKK for a cake saying ‘Black Lives Don’t Matter.’”
In effect, the lower court in Washington seeks to punish Mrs. Stutzman for refusing to affirmatively celebrate something that goes against her deeply held, religiously-based belief that marriage is between one man and one woman. We should, then, be asking about the state’s goal in burdening Mrs. Stutzman’s free exercise of religion. For what compelling reason must those with religious objections to same-sex marriage be forced to celebrate them whenever asked to do so by a customer? That we are not asking this question, instead asking whether Mrs. Stutzman has a “right to discriminate” by refusing to violate her deeply held beliefs, shows how problematic current judicial principles have become for religious believers in the United States. It is time to stop burdening religious exercise out of the desire to make everyone applaud and celebrate conduct (not people, but conduct) going against those beliefs.