Monday, February 20, 2017

Another Nail

On February 16, the Washington State Supreme Court ruled on the case of State of Washington v. Arlene’s Flowers and Ingersoll v. Arlene’s Flowers.

Baronelle Stutzman of Arlene's Flowers
photo from Alliance Defending Freedom

Here’s a review of what happened. Baronelle Stutzman, the owner of Arlene’s Flowers in Richland, WA, had been happily serving her friend, a gay man, for several years. But in 2012(just three months after the state invented same-sex “marriage” in a close vote) he asked her to be the florist for his same-sex “wedding.” She kindly declined. Her Christian belief that marriage is the union of one man and one woman prevented “her from using her artistic talents to promote contrary ideas about marriage.” But, while she couldn’t do the work, she gave him the names of three other florists she thought would be glad to do the event.

In a normal world, the gay man, who had been a friend and had clearly not been discriminated against because of his sexual orientation, would have simply gone to one of the other florists on the list. But this is not a normal world.

He sued her for discrimination. And then the State of Washington joined in its own suit, claiming she violated its anti-discrimination law. In 2015 the trial court ruled against her. The ruling this week was the appeal to the state’s supreme court; they ruled unanimously against her.

Her defense had two prongs: freedom of religion and freedom of speech. The court was unsympathetic to both.

A person has a right to practice their religion, says the state, but only within the limits that the state sets. If the state decides it has a compelling interest, it is free to trample religious freedom at will. The state calls it punishing an “independent social evil.” What was the evil that the kind florist did? Disagree with the state’s current opinion about sex. So they say they have a “broader societal purpose: eradicating barriers to equal treatment of all citizens in the commercial marketplace.”
A person does not have a right, the state says, to refuse to perform an event that a homosexual—or some other protected class—requests. A person is obligated to provide the service so as not to “disrespect and subordinate” someone in that class. The state believes it has the right and power to coerce specific work; the state believes it owns slaves.

It was clear in the facts of the case that Stutzman did not deprive anyone of a service; she accommodated reasonably by recommending other florists. That was a win/win solution; the customer would receive the service he wanted, and she would preserve her right to live her religion according to her conscience.

But the court disregarded the facts of the case, as well as the clear wording of the law. The court has no sympathy for this particular religious belief, so they punish for it.

But the test for them will be when a white supremacist goes to an orthodox Jewish-owned business and insists that they print the advertising for their anti-Semitic event. Or when they require a Muslim business to cater a pig farmers’ banquet. Or require a Jewish photographer to photograph the third polygamous “marriage” of a Muslim client.

It appears the law will only rule against Christians, or anyone who has the temerity to go against their preferred religious position on sexuality.

Beyond the religious freedom argument, there is the freedom of speech—or expression. When I look at a court case, I often turn to the Volokh Conspiracy (a legal blog). Eugene Volokh gives this summary:

[T]he court concluded that flower arranging isn’t sufficiently expressive to qualify. (I think the analysis should be different for people who produce material that has been traditionally viewed as expressive, such as photographers, calligraphers, printers, singers, artists and the like, though it’s not clear how Washington state’s Supreme Court would decide on that.)
It appears that courts also get to define, at their whim, what is “sufficiently expressive to qualify.” A printer has a stronger case, possibly, because actual words are involved. If a cake decorator is asked to write words on the cake, that makes a stronger case. And, if a court decides that a singer, photographer, calligrapher, or other artist is using his/her talent as a form of expression, the court might be more sympathetic about coercing use of that expression. But floral design, they have arbitrarily decided, is not really a talent, or an expression, or anything but a commercial service.

While Alliance Defending Freedom, which has been representing Stutzman, plans to appeal to the US Supreme Court, Volokh is not encouraging. He says,

I doubt the U.S. Supreme Court will review the case further: It could only review the First Amendment issue (since the state supreme court is the final decision-maker on the state constitutional issue), and the compelled speech case here is weaker than in the New Mexico wedding photographer case, which the U.S. Supreme Court refused to hear.
Even if SCOTUS were to take on the case, their decision would still hinge on Justice Kennedy’s ruling. He’s the one who heard all the evidence in Obergefell, heard the warning about religious freedom being affected, and then ruled broadly that same-sex couples have always had a right to marry—six thousand years of multi-cultural world history to the contrary.

What is particularly disturbing about this case was the extent to which the Washington court was willing to go. They punish to excess—and, again, beyond the law. A business owner is generally protected from having personal property affected by a lawsuit against the business, unless there are certain overriding factors. As David French wrote,

[I]f you doubt the court’s malice, look only to its last ruling—that Stutzman can be held personally liable for her allegedly discriminatory act. In other words, the court is willing to pierce the corporate veil to impose individual liability even in the absence of the traditional justifications for that drastic step. Stutzman didn’t commit fraud. She didn’t commingle her personal and corporate funds. She kept her private and professional affairs separate. But she still faces personal financial ruin.
Arlene's Flowers
photo from here
Remember, Baronelle Stutzman was 70 years old in 2012, at the time of the original incident—after spending 40 years as a florist. The fine was only about $1000, but she was also required to pay the legal fees of the ACLU—about $1 million—in addition to never operating her business again. Her small business never had that many assets. Add in all of her belongings, savings, preparation for retirement, and she is placed in penury with no chance of recovery. If you have any sense of justice, this seems way out of line for the crime of slightly inconveniencing a longtime customer/friend.

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.

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