Monday, February 23, 2015

This Is Not Tolerance

This past week I came upon yet another story of a private business being attacked by the “gay mafia.” And this time it was kind of personal. (This case was also mentioned last year here.)
Arlene's Flowers, in Richland, WA
photo from Alliance Defending Freedom
The business being attacked this time is Arlene’s Flowers, in Richland, Washington. The name and photo of the shop look familiar to me. We spent most of a decade living in that corner of Washington. Daughter Social Sphere was born in the hospital in Richland. We didn’t have a lot of events that called for flowers back then, but chances are if Mr. Spherical Model brought me flowers when our daughter was born, they came from Arlene’s Flowers.
Owner of Arlene’s is 70-year-old Barronelle Stutzman, who has been making a living as a florist for 40 years. She has served everyone, regardless of race, religion, or sexual orientation. But she’s a Christian, and in 2013 when a longtime customer asked her to do the flowers for his same-sex wedding, she declined. It was the event, not the client, that she declined, because, to her, marriage is sacred and something that can’t be mutated to mean same-sex.
Stutzman must have been rude enough to really anger the client, right? No. “I put my hand on his and said, ‘I’m sorry Rob, I can’t do your wedding because of my relationship with Jesus Christ…. We talked a little bit, we talked about his mom [walking him down the aisle]…we hugged and he left.”
But the result of her friendly, gentle refusal was to suffer a discrimination lawsuit. More than one. First, the Washington State attorney general filed suit, requiring a $2,000 fine in addition to an order that the service be rendered. Then the couple filed another suit through the ACLU. Last week a Washington State judge ruled against Stutzman. The result is worse than just putting her out of business.
She said, “They want my home, they want my business, they want my personal finances as an example for other people to be quiet.”
An ACLU lawyer said, “Religious freedom is a fundamental part of America. But religious beliefs do not give any of us a right to ignore the law or to harm others because of who they are. When gay people go to a business, they should be treated like anyone else and not be discriminated against.”
So, religious freedom is OK and tolerated—unless it isn’t. Because…law.
So, a moment of history about marriage law in Washington. In 1997, following a threat to the definition after Hawaii had challenges to marriage there, the legislature wrote legislation defending the long-standing definition requiring one man and one woman. It passed  63 to 35 in the House and 27 to 19 in the Senate, but Governor Gary Locke vetoed it. He said it was divisive and unnecessary, since the law was already clear on the definition. And he added, "Our overarching principle should be to promote civility, mutual respect and unity. This legislation fails to meet this test." Please remember that. Veto override vote failed 26-20, when seven Democrats who had voted in favor of the law changed their votes to support the governor.
In 1998 the legislature attempted similar legislation, a Defense of Marriage Act (DOMA). The governor vetoed this one as well, saying, "Our laws right now prohibit same-gender marriages, and I oppose this legislation because it is trying to make illegal something that is already illegal." The veto was quickly and soundly overridden. Yes, the definition of marriage was settled, but the people wanted it protected.
Over the following decade same-sex “marriage” advocates could not get traction, because public opinion in the state continued to support the existing definition of marriage. So they pushed instead for domestic partnership status, through initiative in 2007, withdrawn for lack of signatures to get it on the November ballot. But in the meantime they did establish domestic partnerships through the legislature in April 2007.
Then in 2012 the legislature voted to enact same-sex “marriage” on close votes. After a delay to let the people decide by referendum, the voters approved the law 54%-46% (I believe that’s the first state to choose same-sex “marriage,” rather than have courts or legislators force it on them against their will). It went into effect in December 2012.
Three months later Robert Ingersoll walked into Arlene’s Flowers and ruined Barronelle Stutzman’s life. It was a no win for her.
I think a businessperson should be allowed to refuse service to anyone for any reason. But that’s an argument for another day.
She didn’t refuse service to anyone; she refused to perform a particular service for a particular event. She did no damage to the customer; he could go elsewhere. He knew she hadn’t ever discriminated against him because of his sexual orientation. But, instead of going and finding a willing florist, he decided she should have her business taken, her livelihood and savings siphoned off in fines and court costs, and threaten everything she had, which at her age she could never recover from. Because she said she wouldn’t do a particular kind of event—that had been against the law for the entire history of the state until three months earlier and was only made law by a close margin.
Somehow that takes precedent over anyone’s personal religious beliefs, even though religious protection is guaranteed in the First Amendment because it is God-given and inalienable.
Alliance Defending Freedom has stepped in, to help her appeal. But even an eventual win will leave her years older, herd business closed, her savings gone.
What Stutzman did was tolerant. What Ingersoll did was beyond intolerant; it smacks of mafia.
Eventually, if the Supreme Court reads the Constitution and grows a spine, we can hope cases like this will be reversed. That will be good news for all people who engage in commerce while living religious lives. But the businesses already attacked will probably never recover.
Because of the threat of these anti-discrimination lawsuits, a religious person doing business today risks losing everything as soon as a protected-class customer walks through their door.
There’s no safety for religious businesspeople, but there are some rather painful alternatives:
1.      Incorporate, rather than have a sole proprietorship, to limit the assets that can be accessed in a lawsuit. The business, then, is sued for discrimination. You’ll need to have the business go bankrupt right away, but at least your personal assets can’t be seized.

2.      Limit your business in a way that will prevent the dilemma. This would look something like “we never do wedding arrangements,” which is pretty limiting but avoids the attack. This would be true for cake decorators and photographers as well. But, it might be hard to keep the business going if you have to turn away work for the 99.99% of customers who might your skills for a regular wedding.

3.      Take the job, and then purposely do a very poor job. Your reputation may be at risk. You may have to return any money you were paid. You may even be out the cost of resources and time. But you can’t be sued for refusing service to a protected-class person, and you haven’t used your skills and abilities in honor of something that offends your religious heart.
The thing that has bothered me so much about these cases is the expectation that a person must do work that some judge says they must. If you must do work that you haven’t contracted to do, that is coercion.

Another word for it is slavery. But there’s a difference between this and the slavery we saw in the South prior to the Emancipation Proclamation. Back then, the slaves could be forced to work. But they could not be forced to create beauty. Mostly slaves wouldn’t be trained to do artistic work. They could be asked to work in a garden, but they wouldn’t be expected to design the garden. They might be an excellent cook, but they wouldn’t be expected to be a haute cuisine chef.
But today’s “gay mafia,” along with the judges that are their tools, are trying to enslave people who should have the expectation of freedom (they are their own bosses in their own artistic businesses) to do things that not even “legally owned” slaves could have been forced to do.
When you’re taking the life, livelihood, home and savings of a 70-year-old woman who has always served you sweetly and cheerfully, you really need to re-think who is the intolerant one.
I’ve written enough for a day. I thought I’d have a portion to devote to the singe same-sex “marriage” that happened in Texas last Thursday. So, just to re-cap, the federal judge who required it had no power of mandamus; he had no authority to require a state judge to do what he asked. The state judge who allowed the license to be granted did so unlawfully. The Jewish rabbi who “married” the two lesbian women was not abiding by any Jewish religion that I’ve ever encountered (but I’m sure I’m not familiar with ever version of Jewish belief). The case is not in any way precedent setting, and the state attorney general has already made clear to all the state’s judges that such licenses cannot be granted in Texas at this time, while cases are pending in the 5th Circuit and there is a stay. The attorney general has the right to challenge the legality of the “marriage,” since the granting of the license did not abide by Texas law. So, except that two people started calling themselves “married,” nothing has changed in Texas.
I’ve written recently on the same-sex “marriage” issue here and here. I wrote about religious freedom here. The two topics are closely tied.

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