First They Came for the Florists…

I have written previously on this blog regarding antidiscrimination laws. I support them when they are employed, like the Civil Rights Act of 1964, to end and then redress gross injustices committed against disfavored minorities. Antidiscrimination laws might at least in theory still be justified if required to protect an affected class. So to take an obvious example, medical professionals serving in emergency rooms must take all comers, providing each with the same level of service and care.

I think there are precious few examples in our present circumstances where such impartial treatment would have to be mandated by law. Instead, as discussed below, our antidiscrimination statutes are now being used to persecute dissenters from the majority’s worldview. They unjustly violate our basic rights of conscience and free association, privileges that belong even to bigots.

The latest egregious case comes from Washington, my home state. We have a law (RCW 49.60.265) that makes it a crime to discriminate “in any place of public resort, accommodation, assemblage, or amusement…[on the basis of] race, creed, color, national origin, sexual orientation, sex…”  As you may have heard, Barronelle Stutzman, one of our florists, refused to sell arranged flowers to Messrs. Ingersoll and Freed for their same-sex marriage ceremony because of her sincerely held religious beliefs that the sacrament of marriage is reserved for heterosexual couples.

She was prosecuted by Washington’s attorney general, found guilty, and fined for violating RCW 49.60.265. She was also found liable for damages and attorney’s fees in a civil lawsuit brought by the aggrieved couple. The Washington State Supreme Court just upheld her conviction and the civil damages. She is now forced to choose between her livelihood and her conscience.

Of course, there is no allegation that Ms. Stutzman has some unique gift for flower arranging that puts all competitors to shame or that no other competent practitioners operate in Ingersoll/Freed’s neighborhood. In fact, Ms. Stutzman recommended other florists to the “victims.” But they were mortally offended, made a stink, and the authorities were all too happy to enforce this unjust law.

Among Ms. Stutzman’s defenses was that this anti-discrimination law interfered with the exercise of her religious faith, a right guaranteed by both the US and Washington constitutions. This argument was rejected in language that reveals just how eager this court is to embrace coercive means in pursuit of its “noble” ends:

We agree with Ingersoll and Freed that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” Br. of Resp’ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace.

This paragraph is aggressively obtuse and morally indefensible. After centuries of slavery, and then many decades of oppressive Jim Crow laws, there were no other equally good Southern banks, schools, hotels, restaurants, employers and so on, eager to serve blacks if one eccentric white person did not want their patronage. Accordingly, the 1964 Civil Rights Act was the appropriate relief for the grave harm then being visited upon this abused minority.

But Ingersoll/Freed and others like them are in danger only of having to go to the florist one block over, who is happy to have their trade. In other words, this case has nothing to do with righting any wrong done to Ingersoll/Freed, and everything to do with forcing people to conform to the dominant social norm. If you don’t immediately grasp how repulsive this is, I suspect it is due to your inability to sympathize with Ms. Stutzman because of what you regard as her regressive views.

If so, ask yourself how you distinguish this case, on a principled basis, from a dry cleaner who does not wish to wash the robes of the KKK’s Grand Dragon, the vegan printer, who believes “meat is murder,” and who does not wish to produce the posters for the World Championship of BBQ Cook-off, or the recording artists who do not wish their songs played at certain political rallies. I could go on endlessly.

The answer can’t be “I’m only in favor of coercing people who hold evil beliefs,” for two excellent reasons. First, anyone who believes the state has some reliable means of identifying constructive and destructive beliefs, and will then only suppress the latter, with no political motivation intruding, is woefully ignorant of history. The only way to preserve freedom of conscience is on a universal basis. Which, by the way, is the same reason we recognize no “hate speech” exception to the First Amendment.

Even more fundamentally, peaceful individuals have a right to their opinions, no matter how distasteful, so long as they remain harmless beliefs. As mentioned above, if such views injure innocent others by the agent’s unreasonable refusal to perform important duties, then we are entitled to punish this conduct, which is different. There are no thought crimes, only government goons who desire to criminalize nonconformity. If the Supreme Court does not reverse this appalling decision, we, as a society, will have crossed a very dangerous red line.

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2 Responses to First They Came for the Florists…

  1. Just one question, entirely irrelevant to your point: what does “we, as a society” mean? Does it mean “the people”? It cannot mean the people individually, because there are disagreements amongst the individuals who make up the people. But it cannot mean the people collectively because there is no such collective. I normally assume that it means “the government.” Is that what it means here?

    • Mark Friedman says:

      You are right, Danny, it is vague. The idea is something like “we” = “those of us living under the laws passed and enforced by our government.” Or, perhaps, “our polity.”

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