Tuesday, February 28, 2017
I've written an essay for America magazine on the Washington Supreme Court's recent ruling rejecting a florist's claims that the Constitution shields her from being compelled by the state to provide flowers for a same-sex wedding ceremony. I continue to think that the legislature needs to do the heavy lifting if we're going to navigate the tensions between religious liberty and anti-discrimination norms, but the Washington Supreme Court's reasoning leaves plenty to be desired. For example, the Court approvingly quoted the customer's brief that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches." Here's a responsive excerpt from my essay:
Well, the 1960s civil rights cases were not just about access to sandwiches. They were about access to sandwiches and housing and jobs and schools and parks and water fountains and voting booths and transportation and so much else. Jim Crow was a tightly woven web of laws and social norms aimed at the systemic oppression and subjugation of blacks; the harms were not going to be remedied by either legislators or judges wielding scalpels. The 1960s civil rights laws were sledgehammers, as they needed to be.
Fast-forward to 2013 and the debate over the nature of marriage. Once the news broke that Mr. Ingersoll and Mr. Sneed had been turned away by Ms. Stutzman, several florists offered to provide flowers for their wedding free of charge. If our legal system lacks the capacity to acknowledge a meaningful difference between Ms. Stutzman’s denial of flowers and the treatment of blacks under Jim Crow, the liberty of conscience is headed for a very rough ride.