Same Sex Marriage Act before Supreme Court | Rich Elfers

You have probably seen signs in places of business that say, "We reserve the right to refuse service to anyone."

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  • Thursday, July 28, 2016 2:05pm
  • Opinion

You have probably seen signs in places of business that say, “We reserve the right to refuse service to anyone.”

Those signs do not necessarily reflect current law in the state of Washington. The law that changed things is the Same Sex Marriage Act passed on Feb. 13, 2012, and then confirmed by 53.7 percent of Washington state voters in November of that year when they voted down an initiative to overturn the new law.

Since that time, same-sex marriage was upheld in a 5-4 Supreme Court decision called Obergefell v. Hodges on June 26, 2015. In dissent, four of the conservative justices warned that such a decision would lead to discrimination against those who held opposing views based upon their religious rights protected by the First Amendment “freedom of religion” clause.

It seems that a 71-year old Christian florist who lives in Richland, Wash., is now one of several feeling the implications of two clashing interpretations of whose individual rights matter more.

The woman’s name is Barronelle Stutzman and her story is described in a July 12, 2016, “Christian Science Monitor” article by Warren Richey entitled, “A Florist Caught Between Faith and Financial Ruin.”

Stutzman is a devout Southern Baptist whose florist shop provided flower arrangements for her gay customer Robert Ingersoll. Over almost a decade, Ingersoll purchased $4,500 worth of flowers from her. They became friends and his homosexuality was never an issue. They would greet each other with hugs. One day, though, that changed. Ingersoll came in to ask Stutzman to arrange flowers for his upcoming same-sex marriage.

Stutzman was torn. She did not object to selling flowers to Ingersoll, but because of her belief that marriage was ordained by God to be between a man and a woman, she had to politely refuse his request to come to the wedding to do the arranging. She offered the services of three other florists. Her words were, “As deeply fond as I am of Rob, my relationship to Jesus is everything to me.”

Now, three years after that five-minute conversation, the 71 year-old florist has become a test case for the Same-Sex Marriage Act.

Attorney General Bob Ferguson and the American Civil Liberties Union have filed lawsuits against her business and against her personally. That means she could potentially lose everything she owns if the court finds for the state.

She lost her first battle in state court. The judge fined her $1,001 and gave her a choice of not doing any weddings or doing all of them. She is not doing any weddings until after her state Supreme Court appeal is heard and decided this fall.

The state Attorney General’s office is arguing that her refusal to sell flowers to Ingersoll because he was going to participate in a same-sex marriage was discriminatory and therefore unlawful under the Washington Law Against Discrimination Act. Just as discriminatory Jim Crow laws against blacks occurred in the South from 1896 to the 1964 Civil Rights Act, so also is the refusal to provide services to gay marriages considered discriminatory.

The defense’s chief arguments are that flower arrangement is an expressive act, an example of free speech, not just religious belief. Stutzman’s attorneys also argue that no real burden was placed on the gay couple by her refusal. There were plenty of florists who were willing to serve them. Two florists even offered to provide flowers for free. The comparison to racial discrimination was considered bogus.

The Attorney General’s office did not try to balance the two positions.

I read several briefs, from Stutzman’s and Ingersoll’s attorneys, the Superior Court’s decision, a friend-of-the court brief from the National Association for the Advancement of Colored People, and the counterarguments from both the state and the defendant.

I favor Stutzman’s attorneys’ arguments over the state. That is the problem with law. The judges, like me, are human, and they will make their decisions based more on emotion than on reason. That’s how we humans decide (read Drew Westen’s “The Political Brain”). The Supreme Court did exactly that in Bush v. Gore back in 2000. They voted according to their political preferences. It was a straight liberal/conservative split.

We will have to wait until this fall see in which direction the state Supreme Court justices are biased. It is possible this case will go to the U.S. Supreme Court where another set of judges will determine, based upon their biases, the final decision. That is why our choice for president in November is so important; the 9th Supreme Court justice will undoubtedly cast the deciding vote in that equally split body.

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