Fighting faith-based discrimination

When Robert Ingersoll asked Barronelle Stutzman of Arlene’s Flowers and Gifts in Richland, Wash., to provide the flowers for his September wedding with Curt Freed, the florist gave him a no and a hug.

Stutzman has told the media she took Ingersoll’s hand and told him, “I am sorry. I can’t do your wedding because of my relationship with Jesus Christ.”

In the 1950s and 1960s, one of the arguments against integration and outlawing racial discrimination was that such legislation violated religious freedoms of business owners who claimed God purposely separated the races. There were echoes of this argument as lawmakers raised faith-based objections to marriage equality bills that passed this year in Minnesota, Rhode Island and Delaware.

The equality bills that passed contain provisions allowing religious institutions to refuse to recognize or celebrate same-sex marriages but do not exempt businesses from complying with nondiscrimination laws.

Despite reports of sizable economic gains in marriage equality states, not all businesses are eager to serve gay grooms or lesbian brides. 

The American Civil Liberties Union says individuals and institutions, with increasing frequency, are refusing to provide services to LGBT people and women based on religious objections. The ACLU has dealt with:

• Faith-based schools firing unmarried women who become pregnant.

• Business owners refusing to provide insurance coverage for contraception.

• Graduate students refusing to counsel gays.

• Pharmacies turning away female customers seeking to fill birth control prescriptions.

• Bridal salons, photographers, reception halls, inns and florists closing doors to same-sex couples planning their weddings.

But discrimination based on sexual orientation is prohibited in the District of Columbia and 21 states, including all of the jurisdictions where same-sex couples can marry or enter into civil unions or domestic partnerships.

In the courts

Washington residents Freed and Ingersoll met while hiking in Yakima in September 2004. After becoming a couple, they relied on Arlene’s to mark life’s special occasions – birthdays, anniversaries, Valentine’s Days. 

When they began planning a wedding for this September, they didn’t even consider going to another florist.

But their florist told them to go somewhere else.

Stutzman has said she doesn’t have a problem with gay employees or gay customers, unless they want flowers for their wedding.

The gay couple, represented by the ACLU of Washington, has sued, and Washington Attorney General Bob Ferguson has filed a consumer protection lawsuit against Arlene’s.

“As attorney general, it is my job to enforce the laws of the state of Washington,” Ferguson said. “Under the Consumer Protection Act, it is unlawful to discriminate against customers on the basis of sexual orientation. If a business provides a product or service to opposite-sex couples for their weddings, then it must provide same-sex couples the same product or service.”

Stutzman has countersued, with representation from the Alliance Defending Freedom, which says the state is trying to force the florist to act contrary to her faith.

“Everyone knows that plenty of florists are willing to assist in same-sex ceremonies, so the state has no legal reason to force Barronelle to violate her deeply held beliefs,” said ADF legal counsel Dale Schowengerdt. “In America, the government is supposed to protect freedom, not use its intolerance for certain viewpoints to intimidate citizens into acting contrary to their faith convictions. Family business owners are constitutionally guaranteed the freedom to live and work according to their beliefs.”

ADF also filed an amicus brief with the U.S. Supreme Court arguing against overturning Proposition 8. In that brief, the ADF said compelling business owners to serve same-sex couples was involuntary servitude.

After the filing of lawsuits in the Arlene’s case, several Washington state Republicans introduced Senate Bill 5927 – now in committee limbo – to give business owners “the right to act or refuse to act in a manner motivated by a sincerely held religious belief, philosophical belief or matter of conscience.”

The Seattle Human Rights Commission said the bill is “a poorly disguised tactic to allow individuals to discriminate against members of our LGBT community.”

Another closely watched case is pending in Colorado, where a gay couple, also represented by the ACLU, is suing the Masterpiece Cakeshop. The bakery refused to sell a wedding cake to David Mullins and Charlie Craig, who married in Massachusetts.

“Religious freedom is a fundamental right in America and it’s something that we champion at the ACLU,” said Mark Silverstein, legal director of the state chapter. “We are all entitled to our religious beliefs and we fight for that. But someone’s personal beliefs don’t justify breaking the law by discriminating against others in the public sphere.”

The Colorado Attorney General’s office also has filed a complaint against the bakery, with a hearing before the state civil rights commission expected next month.

The bakery’s attorney, Nicolle Martin, told The Associated Press that the case is about conscience, not commerce.

Conscience, as well as artistic expression, also are cited by the defense for Elane Photography, a New Mexico business that refused to photograph a lesbian couple’s commitment ceremony because its owners are Christians.

In that case, a district court and an appeals court have found that Elane Photography is a public accommodation and thus cannot discriminate based on sexual orientation and that enforcing the state human rights act doesn’t violate Elane Photography’s First Amendment rights.

Both courts also rejected Elane Photography’s argument that the court wouldn’t force an African-American photographer to shoot a Ku Klux Klan rally so it shouldn’t require a Christian to photograph a lesbian commitment ceremony. The district court said, “Once one offers a service publicly, they must do so without impermissible exception. Therefore, (Elane Photography) could refuse to photograph animals or even small children, just as an architect could design only commercial buildings and not private residences.”

“What Elane Photography’s hypothetical fails to address is the fact that, like animals, small children, and private residences, the Ku Klux Klan is not a protected class. Sexual orientation, however, is protected,” added the appeals court in the case, which is now with the New Mexico Supreme Court.

CONSCIENCE OR COMMERCE

A recent poll from the conservative-leaning Rasmussen Reports found 85 percent of American adults think a Christian business such as Arlene’s or Elane Photography should be able to refuse service to a same-sex couple getting married. Majorities in the poll also said business owners should be able to set their own rules for customers – appropriate attire for a restaurant, drinking ages in a bar, age limits for a housing community and discounts based on gender.

But other polls find growing support for requiring equal treatment for gays and same-sex couples in the marketplace.

A recent survey by the First Amendment Center found that 52 percent of Americans think businesses providing wedding services to the public must provide those services to same-sex couples, even if the owner has religious objections to same-sex marriage.

Support for nondiscrimination was highest among people under 30 and liberals and lowest among conservatives. But the survey found that 61 percent of Catholics and 39 percent of Protestants think businesses should treat same-sex couples the same as other couples.

Another poll, released on Aug. 1 by Third Way and the Human Rights Campaign, found that 56 percent of Americans think it is illegal for business owners in their state to refuse service to a gay person; 30 percent of those people are wrong because they live in states that lack a law banning bias based on sexual orientation.

The HRC survey, conducted in June, also found that 69 percent of Americans think businesses should not be able to refuse service to gay couples and 57 percent think a business providing flowers, cakes or photography for same-sex weddings are fulfilling contracts, not endorsing gay marriage.