Why The Courts Were Wrong to Rule Against a Florist Who Declined Service to a Gay Wedding

The court’s reasoning renders the right of expression a non-starter for wedding service providers

“The florist, Barronelle Stutzman, had served the gay customers, Robert Ingersoll and Curt Freed, many times over a number of years, including by providing flowers for birthdays and other personal events; she objected only to providing flowers for their wedding.”

 

On Feb. 16, Washington’s state Supreme Court affirmed a lower court’s judgment that the owner of a small flower shop violated state anti-discrimination law by refusing, on religious grounds, to provide floral arrangements for a same-sex wedding. In doing so, the court rejected the owner’s argument for an exemption from the law based on her constitutional rights to free speech, free exercise and free association. If any case could have provided a basis for distinguishing between discrimination based on sexual orientation and the narrower refusal to participate in a same-sex wedding, this would have been it.

The florist, Barronelle Stutzman, had served the gay customers, Robert Ingersoll and Curt Freed, many times over a number of years, including by providing flowers for birthdays and other personal events; she objected only to providing flowers for their wedding. The court declined to recognize such a distinction, finding that a refusal to provide services for a wedding between members of the same sex amounts to discrimination based on sexual orientation.

These are hard cases. I do not believe that business owners in Ms. Stutzman’s position should be forced to provide services that violate their consciences when there are other avenues for the services in question. But the heavy lifting of balancing religious liberty with anti-discrimination norms needs to be done by legislatures. Courts have limited tools at their disposal, and some of the contortions required to impose constitutional limitations on broadly construed anti-discrimination statutes are daunting.

Sweeping vilifications of the court’s decision are not helpful. Consider Christian conservative leader Tony Perkins’s response to the ruling. He accused the court of “seeking to drive families from their businesses…as the result of crippling government-imposed fines designed to force them to deny their faith.” Suggesting that the judges were “seeking to drive” Ms. Stutzman from her business goes far beyond President Donald J. Trump’s tweets in undermining confidence in the rule of law, and it runs contrary to the foundational premises of civil discourse. (That some liberal critics are doing the same in characterizing Supreme Court nominee Neil Gorsuch’s pro-religious liberty rulings does not make it any less unsavory.)

Though the ruling against Ms. Stutzman is not surprising, the reasoning is of concern. On at least three key points the court opts for an overly simplistic application of the law to the facts. Here, the court declines opportunities to undertake the type of contextual, nuanced analysis that is key to balancing commercial providers’ rights of conscience against consumers’ rights to enjoy full and free access to the marketplace. The legislature remains a better stage for such an analysis, but the court ruling exacerbated the shortsightedness of the statutory framework.

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