Protecting Faith While Preventing Discrimination

Washington State began recognizing same-sex marriages in 2012. In 2013, Barronelle Stutzman, owner of Arlene's Flowers in Richland, WA, refused to provide flowers for the wedding of Robert Ingersoll and Curt Freed. Ms. Stutzman

"knew that Mr. Ingersoll and Mr. Freed were gay and had sold them flowers for years, but then refused to provide flowers for their wedding. Her Christian faith, which defined marriage as between a man and a woman, created a line, she said, that she could not cross." (NYT, Feb 16)

Wait. If her faith defines marriage as between a man and a woman, then, in the eyes of her faith, the event for which Ingersoll and Freed were requesting flowers was NOT a wedding. The couple may have called it a wedding, and the State of Washington may have recognized the result as a marriage, but Stutzman is not being asked to recognize it as a marriage. She can say, "My faith doesn't recognize this as a real wedding. I am simply providing flowers for this social occasion that, in form, resembles a wedding." For her, it's just one more sale of many she had previously made to Ingersoll and Freed.

Recognizing legitimate marriages is required of, say, insurance companies who offer policies that protect one's spouse. If there are any rights or benefits afforded to married couples but not to unrelated friends, then same-sex married couples are as entitled to those benefits as opposite-sex married couples are. But recognizing the legitimacy of a marriage is not required of florists. Florists only have to sell flowers without discriminating on the basis of sexual orientation. As long as the florist avoids offering any benefit -- a special discount, say -- to couples who prove they are married, she can have any opinion she wishes to have of the legitimacy or illegitimacy of any "marriage." So Stutzman could have sold the flowers while at the same time, in her own mind and heart, in accordance with her faith, regarding the "wedding" as fake. In this way, Stutzman would remain true to her faith and the couple would get their flowers.

But Stutzman didn't do that. Instead, she refused to sell the flowers. Ingersoll and Freed then sued Stutzman for violating the Washington Law Against Discrimination, which added sexual orientation to its list of protected characteristics in 2006. Currently 19 states -- and Washington is one of them -- ban discrimination in employment, housing, and public accommodations on the basis of sexual orientation and gender identity. In the 31 other states, Ingersoll and Freed might have had a tougher case to make.

In the case, State of Washington v. Arlene's Flowers, Stutzman's attorney argued that flower arrangement is artistic expression and is thus protected as free speech. Speech? OK, then what would the florist supposedly be saying by providing flowers? According to Stutzman's side, providing flowers would say Stutzman endorses the wedding.

"She believes that participating, or allowing any employee of her store to participate, in a same-sex wedding by providing custom floral arrangements and related customer service is tantamount to endorsing marriage equality for same-sex couples." (Washington v. Arlene's Flowers)

This is nonsense. Businesses such as restaurants, bakeries, and florists may deny service to unruly customers, or to any customer that doesn't follow a set procedure for ordering -- as in the Seinfeld episode where the Soup Nazi denies service to Elaine. They may not, however, deny service on the the basis that service signals approval when, in fact, the service does not signal approval (a point I argued HERE). Does hiring a person indicate approval of the person's particular or general non-work-related habits? No. Does renting housing to a person indicate approval of the person's particular or general habits? No. Does producing and selling a cake (with no message on it, or with only a generic message like "Congratulations") indicate approval of the context in which it will be displayed or eaten? No. Nor does providing flowers for an event signal approval of the event.

"The decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. As 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." (Washington v. Arlene's Flowers)

The only "statement" Stutzman would be making by selling the flower arrangements is that Stutzman is a florist.

It's pretty clear-cut. The lower court ruled in the couple's favor, and the 9-Justice State Supreme Court ruled unanimously in upholding the lower court.

David French, writing for National Review, characterizes the court's ruling as meaning

"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."

But, of course, (1) said florist is not bound to celebrate anything. She only has to provide her business services without discrimination. Selling flowers to an event does not constitute celebrating that event. (2) Her faith says that same-sex weddings are nonexistent. Again: since her faith defines marriage as between a man and woman, then a wedding-like ceremony between two men is not a real wedding -- even if the couple, their families, and Washington State happen to regard it as real. As the Court's opinion notes:

"Stutzman is an active member of the Southern Baptist church. It is uncontested that her sincerely held religious beliefs include a belief that marriage can exist only between one man and one woman." (Washington v. Arlene's Flowers)

It's not that Stutzman believes same-sex marriage to be wrong or immoral. Rather, her faith belief is that no such marriage can exist.

Might Stutzman regard it as immoral to simulate a wedding? If so, she would have to regard every play or movie with a wedding scene in it as immoral. That is not a position that Southern Baptists have taken. In any case, Stutzman did not argue that she found it immoral to engage in what she regarded as a simulation of a wedding.

A distinction between actual marriage and apparent marriage is familiar to us from the concept of annulment. Catholic doctrine holds that a marriage is annulled when it is determined that the marriage, despite initial appearances, did not actually exist. Annulment occurs when a diocesan tribunal decides that no marriage covenant was created because the wedding was conducted under false pretenses. Pretenses which might later be discovered to have been false include: openness and honesty, maturity, emotional stability, full consent, and appropriate motivation. Thus, faith organizations sometimes determine that a "wedding" wasn't a real wedding. Similarly, Stutzman may take the position that, in the eyes of her faith, there was no real wedding.

Looking at the Catholic list of grounds for annulment, raises the question: May a florist refuse to provide flowers for a wedding in which the florist has strong reasons to believe that the parties lack emotional stability, haven't given full consent, or aren't appropriately motivated? Proprietors may, as mentioned, refuse service for a variety of reasons -- generally having to do with the customer's behavior on the business premises. It would certainly be highly unusual to refuse service for a wedding on these grounds, and I don't know how the courts would end up ruling. On the one hand, sale of flowers does not endorse, or approve -- or "celebrate" -- the wedding. On the other hand, if the parties to the marriage (or "marriage") are not in a protected class, perhaps the courts would allow that denial of service. There is no Washington law forbidding discrimination against people planning to wed under false pretenses -- but there is a law forbidding discrimination on the basis of sexual orientation. My point is that annulment has been around a long time, and it is based on a distinction with which we are accustomed and familiar: between apparent marriages and actual marriages. When it comes to whether a wedding, same-sex or opposite-sex, is apparent or actual, churches and individuals are free to have an opinion differing from the state's.

The sincerely-held religious belief in question denies the existence -- not the morality -- of same-sex marriage. (By contrast, that same religious belief does deny the morality, and not the existence, of sexual relations between members of the same sex -- though this moral judgment had not previously prevented Stutzman from selling flowers to a couple she knew to to be gay.) Ingersoll and Freed were asking Stutzman to sell flowers for what she was religiously bound to regard as a simulation of a wedding -- which her religion does not forbid. The Washington Supreme Court's opinion, alas, does not make this point. That's too bad. Allowing for individuals to make faith-based determinations about which marriages are "real" -- as long as those determinations do not result in denying a benefit that would otherwise be provided -- protects faith while also preventing discrimination.