Friday, February 17, 2017

God Hates Hags: The Stutzman Fallout continues

Travis Weber
Family Research Council's Travis Weber
Friday, the religious right is have a collective cow over Thursday's ruling by the Washington State Supreme Court regarding florist Barronelle Stutzman. The Court upheld a lower court decision that Stutzman did discriminate, in violation of applicable law, when she refused to sell flowers for a same-sex wedding. The Court also held that she is personally liable (in contrast to corporate limited liability).

In addition to Tony Perkins' dismay which I wrote about yesterday (Perkins claimed to be “stunned”), Family Research Council's Travis Weber has weighed in with “How did the Washington State Supreme Court Get Barronelle Stutzman’s Case So Wrong?” Weber, who is an attorney, writes:
The state high court clearly erred by rejecting Barronelle’s claim that she did not engage in sexual orientation discrimination but rather objected to a certain activity (participation in the same-sex wedding). In rejecting her argument, the court heavily relied on cases minimizing any status/conduct distinction (the idea being that limiting the behavior of a certain class is discriminating against that class—a “tax on wearing yarmulkes is a tax on Jews”).
In similar cases, the New Mexico Supreme Court and a Colorado district court reached the same conclusion. The Court cited ample precedent and, from a common sense standpoint, there seems to be little doubt that discriminating against a same-sex wedding is discrimination based on sexual orientation. While Weber is quite verbose, he fails to cite a case that would support his position.

Later on:
The court hugely erred in rejecting Barronelle’s Free Speech claim

Additionally, the Washington Supreme Court simply got it wrong in rejecting Barronelle’s Free Speech claim. Though beginning with soaring language probably meant to show its high regard for free speech, the court quickly puts a damper on the party, concluding her artistic creations are not “inherently expressive” protected speech. The court’s analysis has some gaping holes, however, as it heavily relies on Rumsfeld v. FAIR despite significant legal and factual differences with the present case. FAIR was an unconstitutional conditions case dealing with government funding—in the military…
The First Amendment issue concerns compelled speech. Stutzman would have to prove that a floral arrangement would be observed as the government's forced endorsement of same-sex marriage. I think that people at the reception would have viewed the flowers as flowers without even knowing who arranged them. Weber goes on to discuss the cases cited by the Court claiming that the Court did not afford sufficient or correct relevance. He fails to cite other cases to support his position. This was a nine-justice unanimous ruling.
The ruling validated concerns that same-sex marriage and SOGI laws will be used to suppress religious liberty

First, in its analysis which concluded that Barronelle engaged in impermissible sexual orientation discrimination, the court cites the Supreme Court’s same-sex marriage decision in Obergefell v. Hodges. The state court claimed that denying marriage licenses is equal to sexual orientation discrimination, a conclusion it now foists upon Barronelle in her religious liberty case. With more of these wedding-related religious liberty cases likely to come, this part of the ruling should be noted by those who said Obergefell would not be used against such dissenters, and would not affect religious liberty.
This is a frequent right wing claim — that we promised them something. No proponent of marriage equality ever promised anyone that nondiscrimination laws would not apply. What we did claim is that same-sex marriage would not affect so-called traditional marriage — and it has not. The case law is perfectly clear. It was Justice Scalia (of all people) who wrote the opinion for the majority in Employment Division v. Smith. There are no religious exemptions to otherwise valid laws.

As Ian Millhiser pointed out today, “In 1968, a racist business owner claimed that the ban on whites-only lunch counters 'contravenes the will of God,' and that he should be allowed to ignore it. A unanimous Supreme Court rejected this claim, labeling it 'patently frivolous.'” In other words, we have seen this movie before. The case is Newman v. Piggie Park Enterprises.

In his conclusion (again Weber is painfully verbose):
Despite this ruling, Barronelle may yet be able to obtain relief from the United States Supreme Court. Hopefully, that Court will take up her case and uphold her federal constitutional rights in the face of the Washington State government’s oppressive action and its state courts’ acquiescence in this injustice. In thinking about how the U.S. Supreme Court will treat this case, it is a reminder of how important it is to have Judge Neil Gorsuch, who is good on religious liberty, confirmed as a replacement for the late Justice Antonin Scalia.
Stutzman's federal constitutional rights are limited to Free Exercise not free discrimination. Justice Scalia was among the living when the Court declined to hear the nearly identical case out of New Mexico, Elane Photography v. Willock. Indeed, Elane and Stutzman were both represented by Alliance Defending Freedom. Aside from precedence there is no diversity of opinion in the lower courts making review highly unlikely.

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