Magazine | June 12, 2017, Issue

Religious Liberty after Obergefell

Barronelle Stutzman (SeattleTimes.com)
We are far indeed from tolerance

‘They’re asking me to choose between my livelihood and my faith,” Barronelle Stutzman says. Stutzman owns Arlene’s Flowers in Richland, Wash., where for three decades she has crafted handmade floral arrangements for local customers. In 2013, she was sued by the state after declining to design custom flowers for the wedding ceremony of two men, Rob Ingersoll and Curt Freed, on the grounds of her religious belief.

In February, the Washington supreme court ruled against Stutzman, determining that her refusal to participate in the ceremony constituted discrimination against the men because of their sexual orientation. But Stutzman maintains that her choice had nothing to do with the couple’s being gay. “I’ve never denied service to anyone in the past,” she explains.

She had served Ingersoll himself faithfully for over nine years, selling him flowers that she knew he would give to Freed. The problem was not Ingersoll’s orientation, but the ceremony itself. Because of Stutzman’s Christian faith, she objected to designing floral arrangements for a same-sex wedding. “As much as I love Rob, I just couldn’t be a part of that,” she says. Like many other Americans, the Richland florist believes that marriage is, by its very nature, a union between one man and one woman.

“Her belief that marriage is a union of sexually complementary spouses does not spring from any convictions about people who identify as LGBT,” explains Ryan T. Anderson, a senior research fellow at the Heritage Foundation. “When she says she can do wedding flowers only for true weddings, she makes no distinctions based on sexual orientation at all.”

Stutzman’s is one of several pending cases considering the proper way to balance two sets of rights: on one hand, the civil rights of lesbian, gay, bisexual, and transgender individuals, and, on the other, the religious-liberty and conscience rights of Americans who believe marriage is a union of one man and one woman. The complexity of this new conflict is compounded by the reality that, in many parts of the country, there exists no legal right to be free of discrimination on the basis of sexual orientation or conduct.

So far, courts have insisted that conscience rights barely exist in this context, effectively determining that the government may compel religious Americans to use their artistic expression in violation of their faith. This reality poses a distinct challenge to the Republican party, whose leaders now must choose whether they will legislatively protect and bolster religious freedom or retreat into silence on the issue. A corresponding choice faces the Right more broadly: Will it be cowed by popular culture and corporate America into championing a progressive vision of gay rights at the expense of religious believers, or will it sacrifice popularity to defend the fundamental liberties of Stutzman and others like her?

Under President Barack Obama, the government routinely subordinated religious liberty to a progressive vision of sexuality. Obama directed his Justice Department to cease defending the Defense of Marriage Act’s definition of marriage as the legal union of one man and one woman; his administration even filed a legal brief against DOMA in U.S. v. Windsor, which overturned the law. His Health and Human Services Department issued a mandate requiring employer health plans to cover contraceptives, including abortifacient drugs, and provided only the narrowest of conscience exemptions (so narrow as to exclude, for example, the Little Sisters of the Poor, a charitable Catholic order). His administration routinely championed laws forbidding discrimination on the basis of sexual orientation or gender identity in addition to biological sex — laws that many religious people believe infringe on their right to operate their businesses, schools, and charities in accord with their values.

The Trump administration has not clearly signaled whether it intends to roll back that overreach. As a candidate, Donald Trump showed little understanding of this debate, despite his campaign’s extensive promises to defend religious communities — promises that arguably played a crucial role in his ultimate victory.

Trump’s chief accomplishment on this issue has been the confirmation to the Supreme Court of Neil Gorsuch, a constitutional originalist with a stellar judicial record in First Amendment cases.

In early May, Trump signed an executive order that purports to defend religious liberty but in reality does very little, and some of what it does is alarming. At best, it gestures at the importance of religious freedom and requests that the HHS drop its contraceptive mandate — a request that the department can easily ignore. At worst, it attempts to end IRS enforcement of the Johnson amendment, which prohibits churches that endorse political candidates from receiving tax-exempt status. While this abuse of executive power — only legislative action can undo legislative action — was intended to promote religious freedom, it also helps establish a precedent for future administrations to abuse power in service of their own policy goals, which may well be hostile to religious citizens.

The reality is that any sustainable protections must come from legislatures. And to judge from cases such as Stutzman’s, Congress’s actions to protect religious Americans have so far been insufficient.

The federal Religious Freedom Restoration Act (RFRA), a bipartisan bill introduced by Chuck Schumer and signed into law by President Bill Clinton in 1993, has lately served as the legislative model for balancing religious freedom with other public concerns. The law originated in response to a legal case that burdened the free exercise of Native American religions with regard to the use of peyote in ceremonies, and has only recently been invoked to defend conservative Christians. In part, RFRA establishes a “strict scrutiny” test, prohibiting the government from infringing on free exercise without first demonstrating a compelling interest and showing that the least restrictive means possible have been used.

But in the wake of the 2015 Supreme Court case Obergefell v. Hodges, in which five justices redefined marriage for the entire country, the nation’s courts and commissions have placed a constantly evolving collection of gay rights above the free exercise of religion. This despite the fact that the majority in Obergefell acknowledged that the traditional definition of marriage has long been held “in good faith by reasonable and sincere people.”

In response, lawmakers in Congress introduced in 2015 the First Amendment Defense Act (FADA), a bill that forbids the federal government to discriminate against Americans for their beliefs about marriage. The legislation would, for example, protect schools, private businesses, and individuals from being stripped of grants, contracts, accreditation, or tax-exempt status because they subscribe to a particular definition of marriage.

“Some may suggest that FADA would give private businesses a license to violate anti-discrimination laws with impunity. This is just not so,” says Utah senator Mike Lee, the legislation’s primary sponsor in the Senate. “This bill does not take away anything from any individual or any groups, because it does not modify any of our existing civil-rights protections.”

A growing body of cases decided against religious individuals illustrates the need for legislative action, whatever its final form.

Jack Phillips, the Christian owner of Masterpiece Cakeshop, was found to have violated Colorado’s anti-discrimination law when he declined to make a wedding cake for the reception of a same-sex couple. Because the Supreme Court had ruled in 1997 that RFRA applies only to federal and not to state law, and because Colorado is one of 29 states without their own version of RFRA, Phillips did not have the benefit of the act’s protections. Like Stutzman, he has appealed to the U.S. Supreme Court.

Elaine and Jon Huguenin, New Mexico residents and owners of Elane Photography, refused to photograph a same-sex commitment ceremony because of their belief in the Christian understanding of marriage. The state human-rights commission ruled that they had discriminated on the basis of sexual orientation and ordered them to pay more than $6,500 in fines. The U.S. Supreme Court declined to hear their appeal.

In Iowa, devout Mennonite couple Betty and Dick Odgaard were forced to close their store — which functioned as an art gallery, restaurant, gift shop, and occasional wedding venue — in a 77-year-old church building. They had declined to host a same-sex wedding, citing their Christian faith, and were subjected to a lengthy state investigation, financial penalties, and countless threats.

But the story of Aaron and Melissa Klein is perhaps the most egregious example yet of this new “tolerance.” The Kleins had owned and operated their family bakery, Sweet Cakes by Melissa, in Gresham, Ore., since 2009. “My hope and dream was to pass the bakery down to my kids,” Melissa explains. She and her husband are parents to five children, the oldest of whom is 17 and the youngest of whom are twin four-year-old boys.

Today, their bakery no longer exists, another victim of the Left’s crusade to enforce uniform public celebration of same-sex unions regardless of religion or conscience. In 2013, the Kleins declined to design a cake for the same-sex wedding ceremony of a previous customer, Laurel Bowman-Cryer. Crushed beneath the weight of a $135,000 penalty and facing constant harassment and threats to their family, they closed Sweet Cakes in the fall of 2013.

“There were a couple different times when we had children come by [the bakery], open the door, yell profanities, and run away,” Aaron recounts. “We took our kids to go to the zoo and someone wrote the word ‘bigot’ on the back windshield of our vehicle. These things still continue to this day. Not to the same extent, but they continue.”

In each of these cases, the business owners gladly served LGBT customers. They just drew the line at celebrating same-sex weddings. “We did serve them in the past, and we were fully aware that they were a couple. We had no problem with that,” Melissa Klein says of Bowman-Cryer and her partner, Rachel.

“I’ve waited on Rob for ten years, and I’d wait on him for another ten years if he’d let me,” Barronelle Stutzman says. “I miss him. I miss our relationship. I miss custom-designing for him. I would gladly continue to serve him. I’d be thrilled if he walked back in the door.”

In none of these cases did government entities demonstrate a compelling state interest in forcing business owners to participate in same-sex weddings. And in all of these cases, the LGBT customers were easily able to find other vendors.

That these business owners were punished for seeking to live according to their beliefs is an aberration from our country’s history of pluralism, which should lead us instead to find compromises that will honor both the dignity of LGBT Americans and the conscience of Christian business owners. Stutzman, the Kleins, and others have been victims not only of rulings that crush dissent and free exercise but, in many cases, of threats and character assassination from their fellow citizens.

As valuable as RFRA and FADA might be, no law in the world will prevent people from writing “bigot” on their neighbors’ cars. In order to renew society’s understanding of religious liberty, individuals and institutions must offer sustained arguments for the intrinsic value of free exercise, the need to respect conscience, and the rational basis of Christians’ deeply held convictions — so often trivialized or distorted — about marriage. In the end, law can mandate specific forms of tolerance, but only our culture can instill true respect for diversity of belief.

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