Washington court rules against florist in gay wedding case

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Larry's picture

Moderator

I find it troubling that the government can compel a citizen to choose between his or her religious beliefs and his or her job. That flies in the face of what our country has historically stood for. In fact, you can't even be fired for your religious beliefs. What an irony that is. This florist could not fire an employee for their religious beliefs but she can be essentially fired from her own job because of it. 

The free market is a much better way to go about solving these kinds of problems.

Jim's picture

http://www.nationalreview.com/article/444989/washington-supreme-court-ch...

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.”
 

TylerR's picture

Editor

I live in Washington. I'm a supervisory fraud investigator for the State. I read the decision. My initial reaction is that this was a reasonable interpretation of Washington law. I still have to read the brief filed by the florist's attorneys, and take a closer look at the RCW for myself - but my gut reaction is that this is not a bad decision. In order to wrap your head around a decision like this, you really have to read the arguments closely and do some digging. We'll see.

Remember, it is irrelevant if you personally like the decision. What matters is that the Washington Supreme Court interpreted the law fairly and correctly as it stands. I may change my mind, but I don't think this one is that bad. Read the decision.

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

WallyMorris's picture

The key is what the specific state laws says, allows and disallows. Thus the need for other legislation to allow exemptions for religious reasons, such as RFRA. This is the "Catch-22" situation for judges if we really want judges not to "legislate from the bench". The question is whether state legislatures will have the desire/will to enact exemptions. In Indiana, our state legislature and Gov. Pence found out the hard way what happens when you try. I imagine the judges in Washington didn't mind too much the results of their decision.

Wally Morris

Charity Baptist Church

Huntington, IN

amomentofcharity.blogspot.com

Bert Perry's picture

It strikes me that if a florist sells to homosexual couples, she has already decided that she will take part in something she considers immoral, because flowers are often given as a celebration of the relationship, especially if they happen to be something like red roses.

I tend to agree that if the matter is the law of public access, this case was rightly decided, but I think we need a serious discussion on what level of public access laws are needed.  Strict ones in the south to prevent Jim Crow laws from being quietly re-implemented by businesses and such?  Sure, at least through the 1980s.  But the extent to which we need them now is debatable---I've rarely heard of any EEOC action where I thought "sounds like the boss took off his sheets just before coming to work.", to put it mildly. 

Aspiring to be a stick in the mud.

TylerR's picture

Editor

Two important things to note, beyond the decision itself:

  1. People involved in the sexual revolution are activists - they will take you to court if you refuse to celebrate their deviance
  2. They are well-funded.

Judicial activism is increasingly the way forward for this revolution. It won't change.

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

Larry's picture

Moderator

I am not a lawyer, but a face value reading of the law along with the arguments presented do not seem to bear out that this is required by the law and in fact may be in violation of the law and the constitution. I skimmed through much of the decision and find it unconvincing. Two examples: There is no reasonable way to infer that same sex marriage was intended by the law in its passing. The decision's explanation of that was wanting. There is also no clear route to infer this was discrimination based on sexual orientation. In fact, such an understanding ignores the history that she had served them on many occasions. Both sides stipulated that fact so that should have immediately been adjudicated in her favor since she quite clearly was not discriminating on sexual orientation. If it was about sexual orientation, she would have never served them before.

Furthermore, this law seems to clearly violate the first amendment in at least two ways. First, the first amendment has never applied only to a dictionary definition of speech. The case law has clearly applied the first amendment to all forms of expression, including artistic expression. The court's rendering that her intent does not matter flies in the face of basic communicative principles. Authorial or creative intent or purpose is the major factor in establishing meaning. The court's decision makes misunderstanding essentially impossible.

Second, the first amendment prohibits laws that impinge on the free exercise of religion. This has been less clear in case law, but unfortunately so, IMO. The right to religious freedom is fundamental to our country and the court's coercion of religious belief should entirely out of bounds. The irony is that "creed" is a protected class under the same law. In other words, there is a strong case that the florist could not fire an employee for their religious beliefs in this area and must make accommodations for those beliefs. In other words, it seems she would have to accommodate a person who believes what she believes. The court seems to be forcing her to do something (violate her religious beliefs) that the law forbids her from doing (violating an employee's religious beliefs).

What you have in cases like this is tyranny of the foolishly aggrieved. Take away the issue of whether same-sex couples should marry and take away the idea that a person suffers emotionally because someone tells them no ("Get over yourself already"). The major issue is whether a person should be required to choose between their occupation and their religious belief. The idea that the state can compel that decision should be troubling to all, regardless of their religious belief or their political persuasion.

Larry's picture

Moderator

It strikes me that if a florist sells to homosexual couples, she has already decided that she will take part in something she considers immoral, because flowers are often given as a celebration of the relationship, especially if they happen to be something like red roses.

The philosophical problem is that the state does not get to decide what violates one's conscience or religious belief. That is precisely what was intended to be forbidden by the founders in the First Amendment. One answer might be the formal and public nature of a wedding vs. personal gift.

And the reason the courts decision on this (with regard to Muslim weddings or atheist weddings) is that a religious person (such as myself) can legitimately consider a heterosexual wedding of another religion a legitimate wedding while considering a same sex marriage no marriage at all. That is a key distinction that the court ignores and thus renders this decision unsatisfactory. The state simply doesn't have the right to compel those beliefs.

With respect to public access laws, I tend to disagree with them. Let the market work. Make people pay a price for bigotry. If a business owner wants to turn away business based on some category or distinction, then let them do it and let the market punish them for that. It would take a bit longer, to be sure. But in the long run, it would be just as effective and perhaps more effective. 

 

TylerR's picture

Editor

I'm particularly interested in the arguments about religious freedom and freedom of speech. I need to read the florist's arguments, then re-read the court's decision. I probably won't have time for that in the next week, but it needs some deep thought.

My off the cuff thought, regardless of legal decisions, is this:

  • If you work in some aspect of the service and hospitality industry,
  • and you selectively choose who you will serve and who you won't (and the florist admitted this)
  • you are asking for problems

You must be consistent. For some people, it will mean you cannot expect to survive in the industry without some legal challenge. The Christian gloss has left our culture. It won't come back. We really need to expect this kind of opposition. The Christian message isn't syncretistic - it doesn't play well with others. It is exclusivistic. It makes people angry.

  • Should I refuse to investigate an insurance fraud complaint because the complainant is an unrepentant, un-Christian homosexual?
  • Or, should I simply do my job without caring about the complainant's deviance?
  • Is a florist's "artistic expression" somehow less important than my own expertise, experience and competence I apply to my own work?

I am torn here. On one hand, I realize this case was only brought because the "victims" are following the activist model so many other sexual revolutionaries have trod before them. On the other hand, I really have little sympathy for the florist. I do not have the luxury of choosing who my clients are in my profession, and I doubt many of you do, either. I just do my job.

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

Larry's picture

Moderator

 you selectively choose who you will serve and who you won't (and the florist admitted this)

I don't think the florist admitted this at all. She was willing to serve them, and had served them. The issue for her was one of artistic expression for a particular event and she claimed it violated her conscience. 

Should I refuse to investigate an insurance fraud complaint because the complainant is an unrepentant, un-Christian homosexual?
Or, should I simply do my job without caring about the complainant's deviance?
Is a florist's "artistic expression" somehow less important than my own expertise, experience and competence I apply to my own work?

First, you work for someone. You are not a business owner. Second, no one (to my knowledge) has ever argued that an insurance fraud investigation is a work of art or freedom of expression. 

Interestingly, if you refused to investigate based on your creed, I don't think they could fire you under the law. They would have to make reasonable accommodations. Of course it is highly like they would find some other reason to fire you. But it's simply a different kind of law.

Robert Byers's picture

This might be a correct ruling based on Washington's state law (although I'm not at all convinced of that), but that law clearly falls afoul of both Federal law (the RFRA) and the First Amendment.  The state can offer additional rights beyond those guaranteed by the federal government, but it cannot take any of those rights away.  It seems blindly obvious that if this is allowed to stand, no Christian will be able to have a public business of any kind for long, unless they are willing to abandon any sort of religious conviction that they may hold that runs counter to the prevailing ethos.

It is a bad ruling for those who value religious liberty.  It is a bad ruling for those who value American freedom.  It is a bad ruling for those who hold any unpopular belief.  If we do not speak out when they come for the bakers and the florists, we should not be surprised when they come for the pastors.  

Not even one pinch of incense for Caesar.  

TylerR's picture

Editor

I'm not referring to the strict letter of the law in my analogy - I'm referring to the basic principle of the matter. My comparison was not a strict correspondence, but an analogy. I've never been able to generate much sympathy for any of the florists or bakers in these cases.

Overall, her arguments were weak. Here is one example:

If you are in this industry, be prepared to be very consistent or risk legal action. It's really that simple. She doomed herself with that comment at deposition. She did so because, honestly, she had not thought through the implications of the stand she chose to make, and did not consistently apply that principle to all her transactions with customers. This is why, from a legal perspective, I have little sympathy for her.

Yes, I'm being more than a bit analytical and cold-blooded right now. But, isn't that the very thing we all want judges to do - to examine the law dispassionately? Christians need to view these matters with two hats - (1) theological and (2) legal. They are not the same hats. The judges aren't interested in theology, and if they were, they'd be pretty bad judges. Christians love judicial activism just as much as the liberals do - as long as the judicial activism is on their side!

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

Jim's picture

Barry L. wrote:

Thus the ruling was correct based on that. People need to realize, though, that most states do allow for discrimination based on sexual orientation.

Here is a link to a map that shows which states do and which don't

http://www.aclu.org/map/non-discrimination-laws-state-state-information-map

If it goes to SCOTUS and loses ... 

All of the "freedom" states in the above map are losers

WallyMorris's picture

The Supreme Court's record in 1st amendment cases is complicated, confusing, and often inconsistent. If the details of appeal law allow, they will wait to appeal for SC hearing until Gorsuch is on the Court, since he is sympathetic to religious liberty arguments, although the particular Episcopal church he is a member of allows homosexual members. Bottom Line: No way to know how the Supreme Court would rule.

Wally Morris

Charity Baptist Church

Huntington, IN

amomentofcharity.blogspot.com

Mark_Smith's picture

 Blame this on our "friends" from the South who refused to serve Blacks. The power of the government ramped up to break that segregation. Now, the courts have ruled that owning a business means you cannot select in any way who you want to serve. It is patently ridiculous. But, the power used to break up racial segregation is being used to shut up opposition to same-sex marriage. 

I weep that our Christian forefathers sinned by promoting racial segregation, and that has led to even greater sin.

Mark_Smith's picture

I know most of you are too sanctified to ever watch TV, but some of us are worldly. Back in the 90s there was a TV show called Star Trek: DS9. IMHO it was the greatest of the real Star Trek.

The main antagonist is a Cardassian alien named Gul Dukat. At one point, talking of defeating your enemies, he says the point is not just to defeat them, but "to get them to admit that they were wrong to oppose you in the first place." That is where the same-sex crowd is headed on this issue.

Larry's picture

Moderator

I fail to see a meaningful legal (not theological) distinction between (a) the artistic expression necessary to provide floral arrangement which she knows a homosexual man brings home to express affection to his homosexual lover, and (b) an arrangement for a homosexual wedding.

But the point of religious freedom and conscience is that it doesn't matter what you see or fail to see. The conscience belongs to her and she has a right to live under that conscience. You don't want courts deciding which matters of religious freedom and conscience are legitimate and which are not. 

Especially because, "[a]s Stutzman acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism(link is external)," (slip decision, p.27). Looks like she gave away the farm and hung herself on that one.

I don't know the full argument she presented, but at face value, a Muslim marriage is an actual marriage not a sinful one. Same with an atheist marriage. And again, it isn't your conscience that matters. The constitution does not afford you or the courts the right to sit in judgment on that. I think that remains the major problem here.

TylerR's picture

Editor

Larry:

I agree with you that the courts shouldn't sit in judgment on these matters. But they have, and they will continue to. This is because the advocates for the sexual revolution will keep on pressing their warfare through the courts. This will not change. There is no future for Christians in public hospitality services. They will find you and sue you. Practically speaking, you must:

  1. Be very consistent with your Christian beliefs and basically serve only evangelical Christians (what's a Landmark Baptist florist to do!? Smile ) - and thus be sued by everybody, or
  2. Serve everybody, make a living, and remain silent about your "artistic expressions" in the context of your business. This is what millions of Christians do every single day where they work. They recognize they live in a passively hostile work environment. They do their jobs. They maintain a Christian testimony. They worship God in their church and preach the Gospel. They shut up at work and, well . . . work.

I'm not saying this is "right" or "the way things should be." I'm just saying that is what you'll have to do. Or be sued. Activists are making courts legislate on matters they shouldn't really be touching, because these deviants have an agenda. They seek to impose celebration of their deviance through legislation.

Ironically, they're legislating morality.  

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

TylerR's picture

Editor

Mark, Now I know the truth about you! Smile

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

Bert Perry's picture

One thing that is very important here is that historic anti-discrimination laws were fairly tenable--they remedied real discrimination against an easily identifiable group.  You get 20% black applicants for jobs/housing, and if nobody with dark skin gets a job or an apartment, you've got cause to investigate.  

With homosexuals/etc.,  now increasingly qualifying for protection, you've got a case where it's only obvious that they're in the group when they are either (a) being completely obvious or stereotypical or (b) contracting for wedding related services.  And in the case of (a), if someone really doesn't want to give them a job or apartment, you simply say "their personality wouldn't work with our staff or clients" or "their personality is not a good fit for our other renters", and the EEOC and others are going to have a hard time making anything stick.

And statistics?  Given many homosexuals are not "out", good luck making a statistical case for disparate impact.  So apart from harassing photographers, DJs, bakers, and florists, I've got to admit I really don't know what one would do with applying discrimination law to homosexuals--besides making lawyers rich.

Aspiring to be a stick in the mud.

Jim's picture

Larry wrote:

Should a Christian programmer be forced to code for a pornography site?

Not sure if Apples to Apples but consider this:

A Christian has a retail store that sells computers. Most computers today are powerful enough to serve webpages with the right software, et cetera

The retailer would sell to all comers with the right cash

TylerR's picture

Editor

Nope. Which is why a Christian programmer who decides to take that stand will find himself quickly destroyed by he courts unless he is very consistent because, presumably:

  • He does not impose a religious test on all clients he has - but he has made an exception for this one. Why?
  • Where is the line between who this programmer will code for, and who he won't? Will he code for a purely secular, benign news site? What if the news site is very leftist, and promotes a very anti-Christian worldview? Why not protest then? Why is there a break now, with pornography?
  • What about this particular hypothetical scenario (the pornographer) makes the Christian programmer protest? Is pornography inherently more sinful than the LGBTQRSTUVWXYZ articles the post at the news site he programs for?
  • Pretend the Christian is a programmer on the next Windows project at Microsoft. He knows the operating system will be used by people who engage in all sorts of criminal activity, including child pornography. Should he file a grievance and demand Microsoft pull him off this project because he can't be involved with a project which facilitates sinful behavior? Does the employee deserve to review all proposed assignments and impose his own subjective religious test on which projects he takes on?

We can go round and round on this forever, Larry. I agree with you theologically. Legally, I just have no sympathy for the florist. Or the Christian programmer. Quit if you need to - but recognize the position you're in. Years back, I could have applied to a senior emergency management position at the regional Planned Parenthood. I didn't even bother - because I couldn't do the job, in good conscience. If I had applied, got the job, then turned around and been indignant because (gee, who woulda thunk it?) I'm being asked to do things against my conscience, I'd be laughed at.

This world is overtly hostile to convicted Christian principles. We'd better get used to it.

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

Bert Perry's picture

It's worth noting that a few years back, German authorities applied the fact that prostitution is legal there to "suggest" that unemployed women consider the trade in their search for work, or else lose benefits.  Thankfully, they backed off, but it does illustrate what a libertarian (guilty in part at least) will tell you about having government run things; "He who pays the piper calls the tune."  

Which is also to say that Mark has a good point in his comment above; more or less to compel people to say "we were wrong all along".  It's a play for acceptance, really. 

Aspiring to be a stick in the mud.

Mark_Smith's picture

Does the Constitution really say that to operate a business means you have to serve EVERYONE?

Remember the old "no shoes, no shirt, no service" signs?

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