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April 22, 2013 at 6:04 AM
Civil Disagreement: Should Arlene’s Flowers be required to serve a gay wedding?
Civil Disagreement pits two members of the Seattle Times editorial board against each other on a question of the day. It is an occasional feature of The Times’ Northwest Opinion blog. Here Bruce Ramsey and Lynne K. Varner take on the controversy over a Richland, Wash., florist who refused to do a flower arrangement for a same-sex wedding, citing her religious beliefs. She has been sued by American Civil Liberties Union for illegal discrimination and, separately, by Attorney General Bob Ferguson under the consumer protection law, which relates to discrimination.
Lynne, I am troubled by Attorney General Bob Ferguson’s crackdown on florist Barronelle Stutzman, owner of Arlene’s Flowers in Richland, for refusing to make a flower arrangement for a same-sex wedding.
I’m not arguing here against gay marriage. I voted for it. I’m not even sure that Stutzman has a legal right to refuse the business. Ferguson says that under Washington’s anti-discrimination statute, she doesn’t, and probably he’s right. She might, however, have a superior right under the state constitution, depending on how you interpret it.
The constitution has nothing in it about freedom from private discrimination. But Article 1, Section 11 does say, “Absolute freedom of conscience in all matters of religious sentiment, belief and worship shall be guaranteed to every individual…”
This doesn’t refer to commerce, but in 1889, when it was written, nobody questioned a person’s right not to deal with someone in a matter of commerce. America made an exception to that principle in the 1960s to end racial segregation in the South, where African-Americans could often not eat at lunch counters or rent rooms in motels. Those practices put blacks at a social and economic disadvantage that visibly harmed the race. This pervasive disadvantage was the reason for setting aside the long-standing principle that any business owner could say “no” to a transaction.
We’ve extended the nondiscrimination principle for 50 years and now arrive at its nether regions. With gay marriage there have been a handful of publicized cases of discrimination — by a wedding photographer in New Mexico, the baker of wedding cakes in Oregon, and now this wedding florist in the Tri Cities. Most of these cased have been about wedding ceremonies. Should a gay couple’s extra hassle in finding wedding professionals matter to the state?
The political question is not only about whether you think, or I think, a shop in Richland should make a flower arrangement for a gay couple’s wedding. If I were a florist, I would do it. It’s good business to do it. But I am uneasy about having the government require someone else to do it if they cite a reason of religious conscience. (Or is progressives’ real reason that they simply can’t imagine a good person believing what Christian conservatives believe?)
In my youth, when we had military conscription, you could get out of it by citing religious belief, if you were a member of a church with those beliefs. That was being a conscientious objector. Can this florist be a conscientious objector?
Recall last year’s campaign for Referendum 74. The ballot measure said no church or pastor could be required to officiate at a same-sex wedding — because that might be against a pastor’s beliefs. The law didn’t say anything about the baker who makes the wedding cake, the photographer who takes the pictures or the florist who arranges the flowers. Is their religious belief less important? (Maybe it is, because religion doesn’t define their profession. But that narrows the scope of religious freedom, doesn’t it? And what if religion did define a person’s non-church profession: a “florist for Christian weddings” for example, or a family counselor for members of a certain synagogue?)
How about an “African hair stylist” that doesn’t want to serve white people? Should such a beauty operator be set upon by the Attorney General’s office? Or a Muslim architect who specializes in mosques and refuses to design churches and synagogues? What if a baseball promoter wanted to revive the Negro leagues? A retro idea, but should it be forbidden?
A progressive colleague says, “Think about lunch counters.” Lunch counters serve food, which is a necessity for life. Discrimination at lunch counters has been banned for 50 years. Does that mean every time this question comes up, even about flower arrangements at weddings, all we have to do is think about lunch counters?
And if we say, “All discrimination is wrong,” then what about people’s non-commercial lives? People discriminate in who they allow in their circle of friends, who they marry, who they invite to their child’s birthday parties. If this is to be a free country, at some level you should be able to say, “No. I won’t.” Does this change as soon as money changes hands — or at some other point? Why does it change?
My progressive friends think this is an easy question. I don’t. The “right not to be discriminated against” clashes with “the right to choose,” and, more narrowly, “the right to choose for reasons of religious conscience.” The progressives call themselves “pro-choice.” They are not.
Bruce, what if Barronelle Stutzman, owner of Arlene’s Flowers, had shown the couple wedding arrangements so hideous and outdated that they ran screaming from the store?
Seriously though, the headline above our blog poses a question very easily answered: Yes. Arlene’s Flowers is a business open to the general public and must serve the public without treating customers differently based on race, religion or sexual orientation. That’s Washington law and every business in the state must obey it, Stutzman’s included.
The owner of Arlene’s Flowers had served the couple in the past. She likely would have done their wedding if they had been a heterosexual couple. She is free to her religious views, but she is not free to discriminate based on race, religion and sexual orientation.
Yes, anti-discrimination laws were created to challenge discriminatory practices against people of color, most visibly African Americans in the segregated South. These laws protect certain classes from social, economic and, I’d add, psychological, disadvantage because of the color of their skin. This legal imperative was not done willy-nilly. A long history of being discriminated against made the case for African Americans. The case of discrimination, both past and present, can be made for gays. Hence their inclusion in anti-discrimination laws.
But religious beliefs have never been allowed to be used to justify discrimination. Here’s a good example. The Church of Jesus Christ of Latter-Day Saints at one time did not allow blacks to enter the priesthood because of Mormon doctrines on race. The church lifted the ban on blacks in the priesthood in 1978 but even before then a Mormon store owner would not have been able to extend Sunday’s stance on race into a refusal on Monday to serve African American customers.
Anti-discrimination laws coexist with religion. But when necessary, they trump it.
Washington added sexual orientiation to anti-discrimination protections in 2006. Last year’s passage of Referendum 74 gave gay couples the right to marry. Bruce, you and I voted for Referendum 74, but it does not matter whether we did or not. What matters is the law’s protection of a gay couple seeking to do things to which they have a legal right: marry and access to public accommodations, including a florist.
I reread Article 1, Section 11 to better understand your argument that Washington’s constituiton protects religion. That argument does not wash. The constitution is underscoring the freedom to hold religious beliefs and worship in a manner of our choosing. It then goes on to separate state government and religion. But the giant leap to commercial businesses and religion is not made.
Nor is the constitution’s protection of the freedom of association a good argument for discriminating against gay couples. No one has complete freedom. Certainly in our private lives, for example, our friendships, social activities and where we choose to live, is based upon common interests that may look to an outsider as exclusion. This is incidental. Few people are saying, ”I don’t want Latinos at my birthday party or African Americans in the poetry class I’m teaching.” But even if your private views were of a discriminatory nature, you would not be able to bring those views into your business if it is open to the public.
There is no free pass around anti-discrimination laws. Thank God for that. If businesses were allowed to choose who they wanted to serve, some of us would find ourselves back in a hellish world circa 1950 when people with brown skin could not eat in many restaurants, stay in most motels or even do something as innocuous as try on hats in a department store. Americans decided they did not want to live in that kind of society and successfully pressed for change. Gays are a protected class in Washington state. Businesses can no more refuse to serve gays, than they can refuse to serve people of color.
The American Civil Liberties Union of Washington will test at least some of my arguments as it presses forward with a suit against Arlene’s Flowers on behalf of the couple.