The Washington floral artist’s case reminds us that sexual-orientation laws threaten freedom and unfairly equate reasonable people with racists.In the subtitle “Religious People” becomes “reasonable people” as if people are reasonable by virtue of their religious beliefs. I could make a compelling case that quite the contrary is true given their embrace of often nonsensical dogma and their inflexibility which expands proportionate to their self-righteousness.
More importantly, though, at this point Stutzman is little more than a loss leader. Campbell knows, based on experience, that there is almost no chance that the United States Supreme Court will agree to hear this case. Stutzman, however, is useful in two ways: To raise money and for advocacy either to oppose nondiscrimination legislation or to support “religious freedom” laws that invariably discriminate against LGBT people for the benefit of Christendom.
As for treating religious people like racists, that is a half truth. The Washington nondiscrimination law treats people who break the law the same. They might be racists, homophobes, anti-Semites or sexists for example. The fact is that discrimination is discrimination and religious people don't get a pass regardless of how much the folks at ADF think they should. Ultimately what ADF advocates for is Christian privilege which is based upon the concept of Christian supremacy.
According to Campbell:
The Washington Supreme Court punished a 72-year-old grandmother named Barronelle Stutzman for declining to create custom floral arrangements to celebrate a longtime customer’s same-sex wedding. One of the worst parts about the court’s decision is its heavy-handedness: It found Barronelle personally liable and threatens to bankrupt her by requiring that she pay hundreds of thousands of dollars (if not more) to the American Civil Liberties Union attorneys who filed suit against her.The fact that Stutzman is 72 and a grandmother are entirely irrelevant. So is that fact that she declined service to a longtime customer. Furthermore, no one required, or even requested, that Stutzman “celebrate” anything. She declined a simple commercial transaction; the exchange of goods and services for money. As for finding Stutzman personally liable, the corporate shield is not usually effective when negligence or illicit conduct are involved. Stutzman broke the law. She and her attorneys concede that she broke the law. Her contention was that it should not apply to her because of religion.
While I doubt that Stutzman will be liable for significant legal fees perhaps if she is then ADF should pony up. The fact that ADF represents Stutzman for free does not mean that they are not liable for malpractice. I wonder if Stutzman provided informed consent for ADF to represent her. Stutzman could have settled this matter for a few thousand dollars. That brings up a few questions:
- Did ADF or Mr. Campbell inform Stutzman of the potential liability for legal fees that they are now complaining about?
- Did ADF or Mr. Campbell inform Stutzman that the Washington Supreme Court would almost certainly rule against her?
- Did ADF or Mr. Campbell inform Stutzman of federal precedence derived from Employment Division v. Smith, a 1990 Supreme Court ruling is which Justice Scalia, writing for the majority, made it unambiguously clear that there are no religious exemptions to otherwise valid laws?
- Did ADF or Mr. Campbell inform Stutzman that the U.S. Supreme Court refused to hear the nearly identical case of another one of their clients (Elane Photography v. Willock)?
- If Stutzman knew all of the above might she have made the decision to settle this matter and go on with her life?
This Isn’t About Serving Gay PeopleThis is a familiar trope, a sonata in two parts. The first part of this is that refusing service for a same-sex wedding is not refusing service based upon sexual orientation. It's nonsense. If she refused service for an interracial marriage it would be based on racism. If she refused service to an inter-religious marriage (say Jewish-Christian) it is likely an expression of anti-Semitism.
Many proponents of these sexual-orientation laws say they’re needed to ensure that businesses do not turn away customers because they identify as gay. This implies no business owner who serves gays and lesbians will be punished. But Barronelle’s case proves that this isn’t true.
Barronelle happily serves everyone in her community, including LGBT citizens. In fact, she had served Rob Ingersoll—the customer who asked her to create the arrangements for his same-sex wedding—for almost a decade. Barronelle built a friendship with Rob, and even though he has sued and sought to bankrupt her, she continues to love him and wishes him the best to this very day.
The second related part is that prior service has some relevance. The fact that she was willing to take this couple's money for flowers that did not involve their wedding is irrelevant. The law does not provide for that kind of test and for good reason. What Stutzman wants is the right to serve only the events that she approves of. For example, a restaurant serves black people. However, one day a black man walks in holding the hand of a white woman and the restaurant refuses to seat them because management does not approve of the relationship. Would any reasonable person posit that this was not an act of racial bigotry? Campbell is seeking Christian privilege; the right to disobey a law that they disagree with. It is something that cannot be found anywhere in the Constitution.
Even though Barronelle gladly serves her LGBT neighbors, her opponents insist that she violates the law because she refuses to provide services for same-sex couples who are marrying. It isn’t accurate to say, however, that she refuses to serve those couples. She will sell premade arrangements or unarranged flowers for same-sex couples to use in their weddings. The sticking point for her is being required to use her artistic skills to create custom arrangements that celebrate same-sex marriages.At some point along the way it became part of the record that Stutzman was willing to sell the couple “raw flowers.” However, she doesn't seem to have offered that option to Mr. Ingersoll. Even if she had it would still constitute a violation of the law. The underlying basis of the law is quite simple: Whatever goods and services you sell to opposite-sex couples you must make available for sale to same-sex couples. Any variance from that is discriminatory. It is a neutral and objective standard.
Barronelle’s Beliefs Are ‘in Good Faith’Who cares and what does good faith mean? The Klan is a Christian organization. I am certain that they are convinced that their beliefs are “in good faith.” And, no, the law does not say that at all. To “distinguish” is a belief. Stutzman can distinguish all she likes. It is conduct that is at issue. Again, as Mr. Campbell is fully aware this is long standing precedence. In 1878 the Supreme Court ruled in Reynolds v. United States that the state could regulate conduct and in doing so was not regulating belief. I keep writing about the same precedents over and over again. But you know what? ADF keeps losing these cases over and over again which tells you something about their priorities.
Worse yet, sexual-orientation laws are designed to harshly affect people like Barronelle. They declare that individuals who distinguish same-sex marriage from man-woman marriage are engaged in a form of unlawful discrimination akin to racist actions, like refusing to provide service for an interracial wedding. They say that those who share Barronelle’s views about marriage—a group that includes millions of Christians, Jews, and Muslims—should be treated like racists and ushered out of public life.
But it’s unfair and dishonest to equate Barronelle to a person who opposes interracial marriage. Indeed, existing Supreme Court case law already recognizes that they are not the same. When the high court struck down bans on interracial marriage in Loving v. Virginia, it said that those laws reflected “invidious” discrimination grounded only in odious notions of “White Supremacy.” In contrast, when the Supreme Court redefined marriage to include same-sex couples in Obergefell v. Hodges, the justices recognized that the belief that marriage is a gender-diverse union of husband and wife is based on “decent and honorable premises” and is held “in good faith by reasonable and sincere people.”I find it interesting that Campbell quotes from the decision in Loving. ADF and Stutzman want a license to discriminate grounded only in the odious notion of Christian Supremacy. Furthermore, this is a straw man. No one has ever suggested that people cannot believe that only opposite-sex marriages are valid according to their religious beliefs. No one cares what they hold in good faith. At issue is conduct, not belief.
You can disapprove of many things but service in accordance with nondiscrimination laws is not subject to personal approval. The fact that Stutzman's disapproval is packaged in scripture is irrelevant. She can worship The People of Mars Who Emigrated to Uranus for all I care. She can cover herself in Silly Putty and call it worship but I will be damned if she can treat gay people differently than she treats straight people and that is the essence of Washington's law. It is an exquisitely simple concept.
That belief is honorable not only because it is shared by most adherents of the Abrahamic faiths, but also because it is rooted in a biologically based truth about humanity (that every child has a mother and a father) and a laudable social goal (that society should encourage mothers and fathers to jointly raise their children in a stable family unit). Opposition to interracial marriage, however, engrafts racist ideas (that marriages should not be racially diverse) onto the institution of marriage solely for racist ends (to keep people of different races from procreating with each other). Nothing but bigotry permeates that view.The belief is acceptable. Repeating some of the losing arguments in Obergefell is a futile waste of time. It is all irrelevant. Religious beliefs do not affect legal obligations. The same Christians disapproved of interracial marriages.
Lest there be any doubt, history proves that there is no comparing these views on marriage. Interracial-marriage bans were an historical aberration. They were unheard of in most places at most times, and even in our country existed only in some states. (For example, six of the 13 original colonies never outlawed interracial marriage). On the other hand, the understanding that marriage is the union of husband and wife has prevailed throughout all of human history until approximately 15 years ago. Its ubiquity spanned the globe and reached across cultures, including cultures that predated or were otherwise unfamiliar with Judeo-Christian beliefs.Who the hell cares? Same-sex marriage is lawful and valid. Service in Washington by public accommodations is required irrespective of the proprietor's approval or disapproval. It is the very reason that we have nondiscrimination laws in the first place.
Racism and Freedom of Conscience Are Not the SameOh bullshit. Racism was often based upon and justified by religious belief. Moreover it is irrelevant. Washington's law is clear and valid. It treats homophobia, racism, anti-Semitism and other forms of discrimination equally. The law is what it is. It was enacted by the duly elected representatives of the people. Everyone sees their individual opinions as warranting freedom of conscience which would make these laws subjective. They are not. Washington effected marriage equality in 2012, nearly three years prior to Obergefell. Over the past five years no one has attempted a ballot initiative to change the nondiscrimination law. In a democracy, that is the correct way to do things. Disobeying the law, to the detriment of others is not an option.
Given the stark differences between these views on marriage, it is wrong for the government to treat their adherents the same. To be sure, the government may restrict many public actions rooted in invidious racism, but the government has no legitimate interest in punishing people who peacefully live out the timeless belief that marriage is a gender-diverse union. By failing to distinguish between these two very different things, sexual-orientation laws are built on a flawed foundation and will continually produce unjust outcomes.
Barronelle’s story is a case in point and shows us what an unjust law looks like. It punishes conscientious individuals who love and serve all people but cannot create art celebrating a particular event, and it punishes them by threatening to strip their life savings and home. It also equates “decent and honorable” beliefs with racism, driving the “reasonable and sincere people” who hold those beliefs to the margins of society.All this verbiage about punishing good Christians. Stutzman is not the victim here. She thoroughly ruined the wedding of a gay couple in defiance of Washington law. That gay couple are the real victims of Stutzman's bigotry. Bigotry based upon religious belief is still bigotry. Christians neither deserve nor obtain a pass. We are a nation of laws. Mr. Campbell as a lawyer should know that but he has a different agenda.