On Florists and "Sincerely Held" Beliefs

As  I have mentioned before, when I am not writing this blog, I work as a lawyer.  I try to keep those two worlds separate, but every once in a while something crops up that bridges the gap that is interesting and worth talking about.  One such issue is the recent decision in State of Washington v. Arlene's Flowers, a copy of which you can find here from the Washington Supreme Court.  What I would like to do in this piece is to talk about the legal issues at stake here, because I think that the way this is being talked about misses a big part of what the key issues at stake are in this case, and similar cases that are surely coming down the pike.

Arlene's Flowers is a floral shop owned by Baronelle Stutzman.  Ms. Stutzman refused to sell flowers to Robert Ingersoll for his wedding, because Mr. Ingersoll was intending to (and in fact did) marry a man, Curt Freed.  Ms. Stutzman and Arlene's Flowers were sued by both Mr. Ingersoll and the State of Washington under the Washington Law Against Discrimination (WLAD), a broad-based anti-discrimination statute.  WLAD works in a manner similar to both the federal Civil Rights Act and the equivalents in other states.  First, it identifies a set of "protected classes" of people that have traditionally been subject to discrimination--race, national origin, religion, and in Washington's case (though, not in every civil rights statute) sexual orientation.  [Sidenote:  lots of people have raised the argument "well, Tom Ford wouldn't make an inauguration dress for Melania Trump--isn't that discrimination?"  No, because "the wife of Donald Trump" is not a protected class.  If Tom Ford had refused to make a dress for Melania Trump because she was a woman, or because she was born overseas, then yes, Ford would be subject to anti-discrimination laws, because those are protected classes].

Then, WLAD sets forth the kinds of activity under which one may not discriminate on the basis of a person's membership in one or more of those protected classes.  In this particular case, we are dealing with so-called (and ubiquitous in civil rights laws) "public accommodations" provisions, which apply to any business that sells goods or services to the public.  The trial court found that, by refusing to sell flowers to Mr. Ingersoll, Ms. Stutzman discriminated against a protected class (sexual orientation) in the course of offering a public accommodation (selling flowers).  The Washington Supreme Court, in a unanimous and very comprehensive opinion, affirmed the decision of the trial court.

Ms. Stutzman raised a number of arguments on appeal, but the one I want to focus on is her argument that she has the right to refuse to sell flowers to Mr. Ingersoll as part of the "Free Exercise" of her religious beliefs, as this is the argument that has garnered the most attention, and is the one that I think people understand the least well.  When looking at the intersection between the Free Exercise Clause of the First Amendment to the Constitution and other laws, the first question is whether the law in question is, to use the lingo, "a general law of neutral applicability."  What that means in essence, is "was this law passed specifically for the purpose of making it hard for people to practice their religion?  Or is it a law that has some non-religiously influenced intention that happens to make it harder for some people to practice their religion."  This idea of neutral applicability comes from one of my favorite U.S. Supreme Court cases, Church of Lukumi Babalu Aye v. City of Hialeah.  There, the city of Hialeah (Florida) passed an animal welfare law that was so narrow in its scope that the only thing it really prevented was members of the Santeria faith from sacrificing animals (chickens, I believe) as part of their religious practice.  The Supreme Court said that the Hialeah ordinance was non-neutral, particularly since it had an exception for Kosher butchers (which, functionally, were doing the same thing as the Santeria practitioners, if for a different end)--the whole point was to stop Santeria practitioners.

The Washington Supreme Court here, and I don't think this can really be disputed, says that WLAD is not like the animal welfare law in Lukumi Babalu Aye, but was in fact a neutral law of general applicability--it applies to all sorts of situations that are well beyond the specific objections that a certain segment of Christian religious believers might have with gay weddings.  Thus, the question becomes "does a person have a right to a religious exemption from the application of a neutral law that might impact their religious beliefs?"  The U.S. Supreme Court has affirmatively answered this question--no.  But it is incredibly important to understand why they said no.  It's not because they hate religion or religious expression, but because they are afraid of entangling the government in religious disputes.

The key case here is Employment Division, Department of Human Resources of Oregon v. Smith, which was decided in 1990 in an opinion written by the recently deceased lion of conservative legal thinking, Antonin Scalia.  Mr. Smith of Smith and another man were trying to get unemployment benefits from the State of Oregon, and were denied those benefits because they were originally fired from their jobs at a drug rehab clinic for testing positive for mescaline.  Mr. Smith sued, claiming that his use of mescaline was part of Native American  religious practices, of which he partook.

Justice Scalia's opinion, in essence, lays out three ways you can approach this sort of case.  One way, which is the way the lower courts and the Oregon Supreme Court approached it, is to try to figure out whether someone like Mr. Smith is "really" a member of a Native American religious community and whether that community "really" requires its members to use psychedelics.  The problem, Scalia argues, is that this approach puts the government, and specifically the courts, in the position of deciding what is and is not an authentic religious belief or religious practice.  What criteria would they use?  Some sort of official doctrinal formulation?  Because if they did that, they would be in essence acting as an enforcement arm for religious bodies.

Consider, as an example, Neil Gorsuch, who has been nominated to the U.S. Supreme Court.  Judge Gorsuch is an Episcopalian in good standing at St. John's Episcopal Church in Boulder, Colorado.  The Episcopal Church supports, and indeed celebrates in a liturgical context, weddings of LGBT couples.  Suppose, instead of being a judge, Judge Gorsuch was a florist and refused to sell flowers for a same-sex wedding.  Under the "bona fide religious objection" approach, Gorsuch's claim to a religious exemption would be tossed out--Gorsuch is an Episcopalian, the Episcopal Church says same-sex weddings are OK, and thus no exemption.  "But wait," our alternate-universe Judge Gorsuch might say, "the 2015 General Convention decision to allow gay weddings was illegitimate for the following reasons, so my religious objection is in fact completely valid."  Do we want courts determining whether decisions of the 2015 General Convention were valid?  Surely not, but even considering the question is, in a sense, to weigh in on matters of religious doctrine.

But that's actually the easy case.  Let's say our hypothetical objector is not a member of some hierarchical body with relatively clear doctrinal positions like the Episcopal Church, but a "non-denominational Christian."  How do you figure out whether those positions are authentic expressions of this person's faith?  They say they think the Bible says that must do or not do X; are we really going to have a court say, "nope, you are reading the Bible wrong"?  This is why the discourse from conservative Christians about racial discrimination misses the point.  When advocates of LGBT anti-discrimination measures bring up the fact that such laws also ban discrimination based on race, the response is usually to say "well, that's different because the Bible is clear about LGBT questions and not clear about race."  According to you it is, but it is an unquestioned fact that the Bible has been used to support racial discrimination of various kinds.  What these conservatives, without acknowledging it, are asking is for a court to issue what is essentially an exegetical pronouncement that opposing LGBT rights is an authentic interpretation of the Bible but opposition to racial equality is not.  Judges are not qualified to do this, and I think no one really wants a secular judge telling us how we must, backed by the force of law, interpret the Bible.

For Scalia, all of this is inappropriate and unworkable.  The only way for a court to address a claim that a person has a "sincerely held" religious belief is to take it as a given and assume that any proffered belief is sincerely held.  That means, though, that anyone can opt-out of any law for essentially any reason.  All you have to do is claim that your beliefs are based on some religious principle, and that's a get-out-of-jail-free card.  And, since it would seem to be an enormous problem to allow religious believers an unlimited personal veto but leave non-believers subject to all laws, it would seem you would also have to allow people to opt-out on, say, philosophical grounds--like being a libertarian, or a Communist, or whatever.  Law making becomes, in essence, impossible, since everyone can just opt-out of laws they don't like.  Maybe if we were anarchists that would be OK, but we are not, so it is not.

If you eliminate the two unworkable choices, then you are left with the idea that religious exemptions are not something that is constitutionally-mandated.  It's OK, Scalia says, to have exemptions created and defined by statute, because at least then the courts are interpreting the wording of the statute and not some bit of religious doctrine.  But you don't have a free-floating constitutional right to a religious exemption.

Now, lots of people disagree with Smith and argue that Scalia's characterization is unfair.  In fact, right after Smith came down, Congress passed (with overwhelming, bipartisan majorities, by the way) something called the Religious Freedom Restoration Act, or "RFRA," that specifically tried to overturn Smith.  For complicated (and, in my opinion, wrong) reasons, the Supreme Court held in City of Boerne v. Flores that RFRA only applies to the federal government, leaving states free to either pass their own versions of RFRA (which Indiana tried to do two years ago), hold that their state constitutions provide greater religious freedom protections (as, for example, New York does)  or work under the Smith standard.

Defenders of a RFRA-type approach will tell you that a law can still be applied over a religious objection if it passes what's called "strict scrutiny."  Strict scrutiny means that the application of a law to the person must serve a "compelling government interest" and must be the "least restrictive means" to accomplish that interest.  The problem here is that, viewed through one lens, no law without a codified religious exemption is ever the least restrictive means to accomplish some goal, because you could always craft a religious exemption that would exclude religious dissenters (which would be less restrictive).  In other words, the absence of an exemption makes the law constitutionally suspect, requiring an exemption--meaning you always get an exemption.  That's basically what the opponents of the contraception mandate argued to the Supreme Court a year ago.

But there is another, opposite problem for the advocates of RFRA--courts may find, and have found, that anti-discrimination provisions are enough to overcome strict scrutiny.  In other words, many courts have found that protecting against discrimination is a compelling government interest and that interest allows no less restrictive means.  That's what the Washington Supreme Court found--Ms. Stutzman argued that the Washington constitution required strict scrutiny, but the Court held that even if it did, WLAD passes.  That's also what (here we go again) courts found when people asserted religious exemptions to public accommodation laws with respect to race.  Based on the opinion in Arlene's Flowers, passing a Washington state RFRA would change nothing for Ms. Stutzman.  Said another way, either RFRAs create an exception that swallows the rule, or they mean nothing.

The only way in Washington for Ms. Stutzman to get any relief is to convince the Washington legislature to repeal the anti-discrimination protections for LGBT people.  And, in the end, that's what all of this is really about.  What you think of the nuanced arguments made in Smith or whether strict scrutiny or rational basis should apply to religious exemption claims is really a sideshow.  It's a proxy for the real question--to do you think LGBT should be protected from discrimination, or don't you?  Folks like Ms. Stutzman, and folks who are beating the drums about religious freedom, say no, and are using religious freedom as a framing device to get what they want without having to say that openly.  It's an attempt to move the issue to some sort of perceived "neutral" ground.

But the course of action advocated for by the Ms. Stutzman's of the world brings with it it's own set of dangers to religious freedom.  Full-throated embrace of the arguments raised in Arlene's Flowers either requires the government to intervene and judge religious questions in a way that entangles government and religion in a complicated and problematic way, or otherwise gives people a blanket out clause from laws they don't like.  The blank check may seem attractive for Christian conservatives now, but how much will they like it when non-Christian believers, or the wrong kind of Christian believer, want to use the blank check for themselves?


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