January 29, 2017
There are significant tensions between religious liberty and sexual orientation and gender identity (SOGI) laws. Those tensions and related conflicts are increasing.
One example of such conflict is evident in the case of Baronelle Stutzman, the owner of a Washington flower shop, Arlene’s Flowers. Ms. Stutzman regularly sold flowers to a gay man who was a usual customer. She knew that he was gay and that he was in a gay relationship with another man. Yet she was quite happy to sell him and them flowers.
But when Ms. Stutzman was asked to create a floral arrangement for their same-sex wedding, she declined for reasons of her own religious beliefs opposing same-sex marriage.
The Washington Attorney General filed suit against Ms. Stutzman arguing that her religious liberty was subordinate to the state law barring discrimination. Ironically, so did the American Civil Liberties Union. One might have expected both to stand up for the free exercise of religious liberty by a small shopkeeper like Ms. Stutzman.
The ultimate issue in the case is whether the Washington state law must be read to contain an exception to protect Religious Liberty rights. In principle, that seems like an easy question. The First Amendment to the Constitution of the United States would seem to trump Washington state statutes.
The case involves conflict between SOGI laws and religious liberty. The burdening of religious liberty by laws prohibiting discrimination based on sexual orientation or gender identity has long been predicted – even by some leading LGBT advocates.
For example, that turn-around (giving priority to LGBT non-discrimination laws over religious liberty) was anticipated by former Georgetown University Law Center Professor Chai R. Feldblum, who currently serves as a Commissioner of the Equal Employment Opportunity Commission. She wrote a chapter on Moral Conflict and Conflicting Liberties in the 2008 book “Same-Sex Marriage and Religious Liberty, Emerging Conflicts” (edited by renown religious liberty experts Douglas Laycock, Anthony R. Picarello, Jr., & Robin Fretwell Wilson).
Professor Feldblum predicted that it was “simply a matter of time” before LGBT liberties would take precedence over religious liberty. She correctly anticipated that laws protecting LGBT rights “might, in certain circumstances, burden what I call ‘belief liberty.’ LGBT non-discrimination laws, she expected, ‘will require an individual to engage in conduct that he or she believes is inconsistent with his or her most deeply held beliefs.’”
She agreed with Professor Michael McConnell that such disputes “feature a seemingly irreconcilable clash between those who believe that homosexual conduct is immoral and those who believe that it is a natural and morally unobjectionable manifestation of human sexuality.” But Feldblum disagreed with McConnell’s recommendation that the government simply take no position. “[S]imply wishing it away,” she opined, “is neither possible nor intellectually honest.”
Professor Feldblum argued that once a religious person enters into ordinary “stream of commerce” market activity (like operating a flower store), they generally must adhere to the state’s nondiscrimination rules. She argued that state policy preferences should trump private religious preferences in such cases.
She concluded: “Protecting one group’s identity liberty may, at times, require that we burden others’ belief liberties.” Moreover, she concluded that “it is essential that we not privilege moral beliefs that are religiously based over other sincerely held core moral beliefs.” In other words, Professor Feldblum was predicting and promoting the diminution of religious liberty in the marketplace as a result of the enactment of SOGI non-discrimination laws.
The conflicts that Professor Feldblum anticipated between religious liberty and SOGI laws have begun to occur with some frequency. The case against flower shop Arlene’s Flowers and its owner, Ms. Stutzman, is one very clear, and disturbing, example of that trend.
The pro-religious-liberty organization, Alliance Defending Freedom (ADF), is representing Ms. Stutzman. Ms. Stutzman’s ADF attorney argues that the case is about “the right to live by, work by, and champion an idea at odds with the majority opinion in a pluralistic society without fear of government repercussions.”
Ultimately, the issue is whether the First Amendment protection for the free exercise of religion will remain strong and viable as sexual orientation and identity protections grow. Conflicts between religious liberty and SOGI laws not only are increasing, but the outcome of those conflicts seems to be changing. The protection of religious liberty seems to be weakening and waning.
So we live in interesting times, indeed. The priority which the Bill of Rights confers upon religious liberty is being challenged. It may be replaced by the claimed new SOGI laws to live and act according to sexual orientation and gender preferences. If that change in priorities continues, it will have profound effects upon our laws, legal system, and life in America.