The ruling in Washington v. Arlene’s Flowers should chill First Amendment advocates everywhere.
National Review Online
[A few days ago, we published a piece on how the state in the UK is taking steps in the direction of persecuting those who speak to others about the Christian faith. Persecution is taking a different form in the United States, but the end result is same. In the US, some courts are overtly insisting upon submission to the state religion and are beginning to punish non-conformity. Ed.]
If you care about the Bill of Rights, the rights of conscience, or even the English language, there’s a chance that this morning you felt a disturbance in the Force — as if the Founders cried out in rage and were suddenly silenced. That disturbance was the Washington Supreme Court’s oppressive ruling in State of Washington v. Arlene’s Flowers, a case holding that a florist was bound by state law to use her artistic talents to design floral arrangements to celebrate what she viewed as an immoral event: a gay wedding.
The pretext for overriding the florist’s rights to free speech and religious liberty was Washington’s so-called “public accommodations law,” which required the owner, Barronelle Stutzman, to provide goods and services to customers “regardless” of their sexual orientation.
Let’s be clear, according to the plain language of the law and the undisputed facts of the case, Stutzman did nothing illegal. She had always consistently and joyfully served gay clients, including the man who ultimately decided to bring potentially ruinous legal claims against her. On each of those prior occasions, however, she was not using her artistic talents to help her clients celebrate an occasion she considered immoral.
In other words, she was not discriminating on the basis of sexual orientation.
She was making a decision not to help celebrate an action, a form of expression. She would no more celebrate a gay wedding than she would any form of immorality, gay or straight. To dispense with her argument, the court did what numerous progressive courts have done: It rewrote the law. It rejected what it called the “status/conduct” distinction, and essentially interpreted the word “orientation” to also mean “action.”
To understand how nonsensical and dangerous this is, one need merely apply it to other categories of expression. Is it now racial discrimination to refuse to bake a cake with Confederate flag icing, since the person asking for such a cake will almost always be white? Is it gender discrimination for fashion designers to refuse to “dress” Ivanka or Melania Trump? They’re women, after all.
But this is the sexual revolution we’re talking about, so it’s necessary for the court to make a statement declaring the government’s allegiances. Indeed, late in the opinion its author gave the game away. Picking up on the absurd and historically ignorant comparison of the modern gay-rights movement with the civil-rights movement in the segregationist South, the judge wrote, “This case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.”
What are they talking about? The federal government took the extraordinary step of passing the civil-rights acts to give black Americans access not just to sandwiches but to hotel rooms, jobs, voting rights, and all the other things they were systematically denied as southern states and communities continually and oppressively imposed the “badges and incidents of slavery” on them. In the pre-civil-rights South, black citizens often had trouble finding places to eat or sleep. They couldn’t vote. They couldn’t get justice in state courts. Civil rights was about access, at its most elementary and necessary level.
But that’s not the case any longer. The gay couple in this case had no trouble finding flowers. Stutzman even recommended other florists who would have been happy to help them celebrate their wedding. So, given the absence of any real harm, the court said that the state had a compelling state interest in punishing the “independent social evil” of discrimination toward a “broader societal purpose: eradicating barriers to equal treatment of all citizens in the commercial marketplace.”
That’s it right there: the state religion. It reserves for itself the exclusive ability to name, define, and eradicate “social evils,” and heaven help the individual citizen who disagrees. There is no need to show a traditional, legally recognized harm. There is no need to prove lack of access to alternative artistic expressions. There is only the need to show that the business owner won’t use her unique talents to help celebrate the sexual revolution.
Finally, if 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.
Social-justice warriors will no doubt celebrate the breaking of another egg for their cultural omelet. Meanwhile, Stutzman’s lawyers — my friends and former colleagues at the Alliance Defending Freedom — are appealing her case to the Supreme Court. Once again, eyes will be fixed on Justice Kennedy. Will he continue to impose his own version of the state religion, the one he so enthusiastically articulated in Obergefell? Or will he remember that words have meaning, orientation doesn’t mean action, and the state can’t compel citizens to condone what they consider immoral.
It’s time for the Supreme Court to take a deep breath, abandon its revolutionary crusade, and remember the great wisdom of its predecessors:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
What say you, Justice Kennedy? Do those who oppose the sexual revolution forfeit that fundamental protection? I suppose we’ll soon find out.
— David French is a staff writer for National Review, a senior fellow at the National Review Institute, and an attorney.