A timid court, and an uncertain future for religious freedom (pt. 1)
The loss of the long-running case involving Barronnelle Stutzman of Washington State, a great-grandmother and proprietor of Arlene’s Flowers, should be cause for both alarm and resolve among committed Christians. In 2014 she declined to provide flowers for a same-sex wedding involving a long-time friend and customer.
Without an initial compliant, the Attorney General of Washington and later the ACLU sued both her business and also Stutzman in her personal capacity. Despite two appeals to the Supreme Court, each after a loss in the Washington State Supreme Court, the U.S. Supreme Court finally declined to take her case on July 2. This leaves her with attorney’s fees for the other side which could close her business and take her personal assets.
Cases involving the clash of religious freedom and the sexual revolution, in which Christians are required to facilitate sinful behavior or express ideas that they believe are wrong have gone from uniform losses when they first appeared early in this century to mixed results in the late 2010s. A rapid review of important cases and decisions follows in this article, and assessment of the proper response to the current situation in the next.
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The case of Elaine Huguenin, the New Mexico photographer who politely indicated that she would not provide photography services for same-sex weddings was the first very high profile case that brought the issue of religious conscience to national attention. This case was lost, as the New Mexico Supreme Court refused to distinguish between the customer and the service requested, or apply New Mexico’s Religious Freedom Restoration Act to private lawsuits. At the same time, the HHS contraception/abortifacient mandate which required the health plans of private religious organizations to have coverage for activities they believed to be sinful was promulgated by the Obama Administration. This was followed by the gutting of the newly enacted Indiana RFRA in 2015, intended to respond to the New Mexico Supreme Court’s reasoning which it used to deny Huguenin the protection of the New Mexico RFRA. Under corporate pressure, the new Indiana RFRA was amended to exclude conscience objection to homosexuality, just as an Arizona RFRA was vetoed in 2014 (again, under corporate pressure).
There followed a period of improved results. Early in 2018, a judge in Bakersfield, California, drew the correct distinction between identity and behavior when he found for a Christian baker, Cathy Miller, who was requested to make a cake for a lesbian wedding. This would have involved using her own talent to create a cake, and she received a favorable judgment. Later that year, although not in an American jurisdiction, another important sex related liberty of conscience case was won in Great Britain, in which the U.K. Supreme Court unanimously overturned the conviction of the owners of Asher’s Bakery in Northern Ireland, who were required to bake a cake with the words “Support Gay Marriage.” This case was won on free speech grounds. And in the same year (2018), the U.S. Supreme Court found on free exercise grounds for Jack Phillips of Masterpiece Cakeshop, who was required to bake a cake for a same-sex ceremony. This decision was not a general protection against complicity in homosexual behavior, but a finding that his religious belief was targeted, due to extremely hostile statements about religious freedom from the Colorado Civil Rights Commission, and the same commission finding in favor of an LGBT baker from whom a cake with words expressing Biblical opposition to same-sex marriage was requested.
Another high profile case, involving Aaron and Melissa Klein of Melissa’s Sweet Cakes in Oregon, is still ongoing in light of the Masterpiece Cakeshop decision, although the initial ruling against them of $135,000.00 was vacated by the U.S. Supreme Court. Finally, Catholic Social Services of Philadelphia was vindicated at the Supreme Court in its policy of placing children with only married opposite sex couples or single persons due to the failure of the City of Philadelphia to use its option to grant an exemption from the city’s SOGI requirements.
The Supreme Court’s inaction in the Stutzman case is a final, devastating loss for Stutzman after a seven year battle. If Arlene’s Flowers continues, although Stutzman no longer makes flowers for weddings, she may well be subjected to future lawsuits endeavoring to make her violate her conscience (as Jack Phillips has). Kristen Waggoner, who argued Stutzman’s case at the Washington State Supreme Court (and who also argued the Masterpiece Cakeshop case at the U.S. Supreme Court) said that the court’s refusal to hear the case does not change the ongoing legal situation with respect to the conflict between religious freedom and the sexual revolution. Other such cases involving the use of SOGI laws to require artistic expression a merchant disagrees with have been won, and a case that is lost still could go to the U.S. Supreme Court.
Waggoner also said that a crucial issue involved in these cases is the forced speech issue, requiring people to express things about sex and marriage that they do not believe. This has not been addressed at all by the U.S. Supreme Court, although it was the heart of the Masterpiece Cakeshop case, she said. It remains an open question, now intensified in the country at large by the looming threat of being required to use preferred pronouns. Waggoner said that despite the loss of the Stutzman case, the Alliance Defending Freedom, (and surely other legal service organizations supporting religious liberty) will “continue to push forward to ensure First Amendment rights apply to those who have orthodox beliefs on human sexuality.”
In a separate interview with Tony Perkins of the Family Research Council, Waggoner said that there were a number of merchants targeted in the early 2010s, to coerce them into violating their consciences using SOGI laws. Stutzman and Jack Phillips were two of those. She said that “What we know is that the principle that’s at stake here protects all Americans … It doesn’t matter whether you’re on the left or the right, Democrat or Republican — the right to be able to express ourselves, to have freedom of speech, the right to be able to live consistent with our convictions is one that all humans should enjoy. And it’s not one that the government gives us. It’s something that God gives us and it’s constitutionally guaranteed.”
Waggoner observed that “the Arizona Supreme Court ruled the opposite of the way that the Washington Supreme Court has done, and they’ve protected freedom. The 8th Circuit Court of Appeals has protected freedom, and we expect that a decision will come out of the 10th Circuit in Colorado on a similar issue shortly. So there will be a circuit split, and the [U.S. Supreme] Court will need to address that split as we’re seeing the more leftist states essentially make the justice system an arm of cancel culture.”
One can only wonder at what the outcome of the Stutzman case might have been with a different outcome to the election. The crucial Fulton vs. City of Philadelphia case, it was widely noted, was scheduled for hearing the day after the election. It did not result in overturning the Employment Division vs. Smith decision, and was decided on a narrow basis, although the decision was unanimous. It did have the important result of confirming that if secular exemptions can be given to generally applicable law, then religious exemptions must be given. This was an issue in the cases involving the HHS mandate. Very substantial exemptions were given to secular organizations, while the criteria for religious exemptions were very narrowly tailored, excluding most religious schools and charities. No exemptions were given to the religious organizations affected, and the Obama Administration pursued its case against Hobby Lobby to the U.S. Supreme Court.
It may be that the court is concerned with the prospect of court packing should strong decisions be given in favor of religious freedom on sexual issues, and also with the not unreasonable possibility of future Democratic Administrations as far as can be seen into the future. It has been noted that Trump appointed Justices Brett Kavanaugh and Amy Coney Barrett were reluctant to overturn the Smith decision (although they seem open to doing so), and voted against hearing the Stutzman case (if either had done so, the case would have been brought forward).
Christians and others concerned with religious freedom need to remember that the Supreme Court has to contend with its earlier decisions, the complex legal web they have created, and the implications of altering or overturning them, (as was emphasized by Justice Barrett in her concurrence in the Fulton decision). But the Supreme Court also must live in the world of the leftist academic legal culture and the mainstream media. Even moderate to conservative justices are willing to sign on to radical decisions (most recently Gorsuch, in the Bostock decision). But they seem timid about going in the opposite direction. Many decisions are cast as “conservative,” when they no more than maintain the status quo against radical demands.
The court’s two most conservative justices, Clarence Thomas and Samuel Alito, are so hopelessly reactionary (from the standpoint of the Left) that they are inured to criticism, although both are to be feared as a source of future decisions that might indeed endanger or undo the court’s radical edicts. But the Trump appointees, Gorsuch, Kavanaugh, and Barrett, as well as Chief Justice John Roberts, all seem sensitive to offending the Left too badly. Ruling decisively for liberty of conscience against SOGI requirements, or the right to life would of course do that.
A subsequent article will try to explore arguments advocates for religious freedom and liberty of conscience can most reasonably and justly make in the future.
Originally published in Juicy Ecumenism.
