Via Ilya Shapiro at the libertarian Cato Institute, Let a Thousand Flowers Bloom:
While Cato believes that same-sex couples ought to be able to get marriage licenses (if the state is involved in marriage in the first place), a commitment to equality under the law can’t justify the restriction of private parties’ constitutionally protected rights like freedom of speech or association.
Arlene’s Flowers, a flower shop in Richland, Washington, declined to provide the floral arrangements for the same-sex wedding of Robert Ingersoll and Curt Freed. Mr. Ingersoll was a long-time customer of Arlene’s Flowers and the shop’s owner Barronelle Stutzman considered him a friend. But when he asked her to use her artistic abilities to beautify his ceremony, Mrs. Stutzman felt that her Christian convictions compelled her to decline. She gently explained why she could not do what he asked, and Mr. Ingersoll seemed to understand.
Later, however, he and his now-husband, and ultimately the state of Washington, sued Mrs. Stutzman for violating the state’s laws prohibiting discrimination in public accommodations. The trial court ruled against Arlene’s Flowers and the case is now on appeal.
Cato has filed an amicus brief supporting Arlene’s Flowers and Mrs. Stutzman, urging Washington’s highest court to reverse the trial court’s decision. Although floristry may not initially appear to be speech to some, it’s a form of artistic expression that’s constitutionally protected. ….
[Supreme Court] justices have said repeatedly that what the First Amendment protects is a “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say. Forcing a florist to create a unique piece of art violates that freedom of mind. Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other florists in the same area.
It remains stunning that progressive LGBT activists have decided using the power of the state to force religiously conservative small business owners to provide expressive services to same-sex weddings is where the front line of the LGBT movement should be. They’re mean-spirited, intolerant and smug authoritarians, and proud to be so.
30 Comments for “Let Freedom Bloom”
posted by Tom Scharbach on
While Cato believes that same-sex couples ought to be able to get marriage licenses (if the state is involved in marriage in the first place), a commitment to equality under the law can’t justify the restriction of private parties’ constitutionally protected rights like freedom of speech or association.
What does Cato believe about private parties refusing to provide goods and services to inter-racial marriages, inter-religious, inter-denominational and/or inter-cult marriages, remarriages after divorce, and other marriages to which there are or might be objections?
The brief is mute (because the case does not require discussion of those issues), but Cato’s argument necessarily extends to those cases as well. The question is whether or not Cato will ever make a public statement in support of “liberty” in those cases. So far, to my knowledge, Cato has not.
I think that the argument that flower arrangements constitute speech is stretched to the point of absurdity, except in extraordinary cases where the floral arrangement is designed to convey a message, but the court will sort that out.
For those following the various cases challenging public accommodations laws around the country, the “free speech” argument is distinct from the “religious objection” argument. The former is as yet untested in this c and that latter has consistently failed because the aggrieved parties have failed to show that supplying a floral arrangement or cake for a wedding constitutes a “substantial burden” on religious practice and/or belief.
We’ll have to see how this turns out.
posted by Tom Jefferson III on
Part of what might be going on at the Cato Institute is a bit of an internal power struggle between its conservative and libertarian factions.
The Cato Institute has been around for awhile and it been a big proponent of its economic-libertarian message, but largely avoided advocating for a libertarian view on gay rights, until it got involved with the Lawrence v. Texas case in 2003.
The conservative Cato Institution faction is not pleased that the Cato Institute has helped advance gay rights, through the judicial process no less, and so their has been a bit of an internal argument going on within the think tank.
……which is how we get the think tank getting really upset over a florist being forced to sell flowers to a gay couple, but not too upset over the fact that the florist can be forced to offer goods and services to inter-racial marriages, inter-religious, inter-denominational and/or inter-cult marriages, remarriages after divorce, and other marriages to which there are or might be objections.
If the Cato Institute was making a principled, libertarian position on the ‘Freedom of Associate’ — which the Constitution does not expressly mention — it would have no problem answering this larger issue.
However, because the Cato Institute is basically using this issue to placate their more socially conservative supporters, all the talk about religious freedom and the freedom to associate ends up only applying to people that want to refuse to provide goods or services to gay people.
posted by Wilberforce on
I’m always amused by religious experts who don’t know the first thing about scripture. These are businesses. And the founder had something to say about that. You cannot serve god and mammon. Matt 6:24. It’s one of many things I learned in Sunday school, and it popped into my head immediately when the debate began. I don’t know how these pious were trained, but they certainly never learned the basics.
posted by Doug on
“They’re mean-spirited, intolerant and smug authoritarians, and proud to be so.” Funny, that is exactly how I would describe right wing evangelicals.
posted by Walker on
You might both be right.
posted by Lori Heine on
Exactly.
posted by Doug on
With all due respect, it is the right wing evangelicals that started the fight by throwing the first punch and I’m not in the mood to turn the other cheek. There are compromises out there but the other side wants the whole loaf.
posted by JohnInCA on
Call me when gay people are leading the fight to ban religious people from marrying, adopting, fucking, serving in the military, visiting each other in the hospital, making medical decisions, etc..
Until then, the bar for “mean-spirited, intolerant and smug authoritarians” is set way higher then can be met just by taking advantage of non-discrimination laws (that have protected religion since 1964).
posted by Tom Scharbach on
You might both be right.
I suppose. But public accommodations laws and the expectation of fair dealing that the laws reflect — that businesses serving the public should be in the business of serving the whole public, rather than using their businesses to express particular prejudices — is the American norm.
We can change that, of course, and perhaps should, as many of a libertarian bent suggest, but eliminating public accommodations laws, or, perhaps, by creating a “small business exemption” to public accommodations laws, as we have with respect to housing and employment.
But whatever we do, we should not enact so-called “religious freedom” laws that involve the government in deciding which religious beliefs — objections to same-sex marriage but not objections to inter-racial marriage, for example — are worthy of protection. And, it seems to me, we should not similarly limit freedom of speech by picking and choosing among “expressive services” in similar manner.
Stephen and his allies on the Republican-aligned “libertarian” right are making a mistake in my opinion, by falling into the “okay for me, but not for thee” trap in both instances.
posted by Houndentenor on
I find it a bit disingenuous to continue to see a handful of cases used over and over to make a point while over and over GOP candidates are vowing to appoint judges to overturn Obergefell. If the religious right would like a compromise, they should offer one. But they don’t. They want all of what they want and nothing for anyone else. They don’t acknowledge our rights, why should we feel bad that they have to take money from gay people to provide the same services they offer to anyone else?
And as Tom points out, if the Cato Institute wants to argue against public accommodations laws, they are free to do so. I doubt it will get them very far and they are well aware of that. A special carve out for one particular religion to discriminate against one particular class of citizens is unprecedented so far as I know. I don’t find that acceptable, but if they want to repeal those laws so that a gay florist can refuse service to Evangelical Christians should they choose to, then let them make that argument.
posted by Tom Scharbach on
I find it a bit disingenuous to continue to see a handful of cases used over and over to make a point while over and over GOP candidates are vowing to appoint judges to overturn Obergefell.
What I find most disingenuous is that Stephen and his fellow “libertarians” wax on and on about “conservative small business owners” but never consider the obvious solution — a “small business exemption” to public accommodations laws, as we have in housing and employment law.
Such an exemption, of course, would be a general exemption to the laws, and that is why we don’t hear about a sensible solution. The point of the lawsuits (both the “religious freedom” lawsuits and the “free speech” lawsuits), the point of the proposed laws targeting gays and lesbians but nobody else, is to make a point about gays and lesbians, not to solve the problem.
posted by Mike in Houston on
How about a middle ground here Stephen… you get the one florist, two bakers, one wedding venue, one social work student & the one camera lady — oh & the millionaire pizza shop owners in Indiana — if you’ll quit harping on how including LGBT people in public accommodation laws is a somehow oppressing poor Christians so much that their religion is about to fade into existence. (Which apparently isn’t stopping construction of the world’s largest cross in Texas… http://www.kiiitv.com/story/31084533/construction-on-corpus-christi-cross-to-begin )
posted by tom jefferson 3rd on
Again, Stephen paints progressives as intolerant, Stalinists, and conservative Christians as kindly, live and let live, libertarians. WTF
posted by Paul in Chicago on
Isn’t the whole idea ridiculous on its face–who would want to support a business (by buying stuff from them) that doesn’t want to provide a service to you?
And then torturing them by forcing them to spend thousands of dollars on legal fees to defend their actions? Is that the way to gain general community support for a concept that really is going to take some time for the general public to get used to?
Also, it’s a perversion of what the laws were initially designed for–a time where it was customary in certain place for all vendors to refuse to sell to African American customer.
I doubt there is a place where you couldn’t find someone to provide the items necessary for a gay wedding that actually wants to do it.
posted by JohnInCA on
If these places were willing to put up “We don’t serve gays/gay marriage” signs, these lawsuits would probably never happen. But they’re unwilling to announce their intent, because they know that if they do so they’ll lose more then just the business they *want* to lose (the gay kind), but a lot of people that are just turned off by anti-gay attitudes.
That said…
“[…] it’s a perversion of what the laws were initially designed for–a time where it was customary in certain place for all vendors to refuse to sell to African American customer.”
Which is why the Civil Rights Act (1964) is strictly limited to discrimination based on race/ethnicity and nothing else.
posted by Tom Scharbach on
Paul, which of the classes would you propose to remove from the Illinois Human Rights Act, which covers discrimination in employment. housing, financial credit and public accommodations:
posted by Paul in Chicago on
I am not questioning whether it is illegal to discriminate, just the activists’ strategy punishing those who don’t want to sell us things instead of supporting those who do.
posted by Tom Scharbach on
Assuming that the 3-4% estimate is accurate, there are about 11-12 million LGBTs in the nation. About half that many are adults. How many have sought to enforce their rights under public accommodations laws? A dozen?
That’s not many. If this weren’t getting blown all out of proportion by conservative Christians and their “libertarian” allies aligned with the Republican Party, it wouldn’t be an issue.
The question of whether or not sexual orientation should be included in the classes protected by non-discrimination laws is, on the other hand, an issue. I’m not sure about the wisdom of non-discrimination laws covering pubic accommodations, but my view is that if a state has a public accommodations law, it should include sexual orientation, with a “small, closely-held business” exception.
Non-discrimination is not, to my way of thinking, a black or white proposition. It seems to me that there is room to accommodate small, closely-held businesses by exempting them from operation of the law. I insist, though, that any exemptions meet the “equal means equal” test, and apply generally to the law, not picking out gays and lesbians for special discrimination.
posted by JohnInCA on
Thought #1)
Religion, the #1 cited reason for why people hate us, is already covered under every non-discrimination law and ordinance in this country. Why is it so stunning that LGBT people would seek the same protections that already shield our tormentors from retaliation?
Thought #2)
If libertarians/Libertarians were serious, they would advocate against all non-discrimination laws equally. Instead, we only see their distress over these laws pop up when gay people are involved. That tells me that libertarians/Libertarians are not, as a matter of fact, serious about this, and so I see no reason to take their un-serious objections seriously.
posted by tom jefferson 3rd on
The Libertarian party platform was once very explict on wanting to abolish all private sector civil rights laws.
More recently, the platform has gotten more obscure, so you have to read between the lines and know a bit about law and philosophy.
posted by JohnInCA on
Whenever I bring up what a platform actually says, I’m told that you have to pay attention to what the politicians actually do to know what the party is *really* about.
Whenever I pay attention to what the politicians actually do, I’m told that you have to pay attention to what the non-politician base actually supports to know what the party is *really* about.
Whenever I pay attention to what the non-politician base actually supports and does, I’m told I have to pay attention to the party platform says to know what the party is *really* about.
So I’m gonna go ahead and split the difference.
Based on the few “libertarian” politicians, they aren’t serious about non-discrimination laws (except when it comes to gay people).
Based on the “libertarian” base (such as it is), they aren’t serious about non-discrimination laws (except when it comes to gay people).
So it looks like the party platform is outvoted.
posted by Jorge on
It remains stunning that progressive LGBT activists have decided using the power of the state to force religiously conservative small business owners to provide expressive services to same-sex weddings is where the front line of the LGBT movement should be.
I just came out of a training that said “LGBQ and T doesn’t have power of law, policy, and practice. Recent advance are only about equality.” All those years you’ve been wrong, Mr. Miller.
I’m looking for a really good comment I made a while ago about the subjectivity of self-hatred but I just can’t seem to find it. Anyway, for my freedom of expression I’m going to say I-heart-Santorum just to get the stench out of my mouth. What?
One of the things that I’ve seen recently that has disturbed me on a small level has been this proliferation of advice columns telling gay people in this kind of situation “If they really were your close friends, they’d go to your wedding.” That’s just filled with so many odd assumptions, and value assumptions, too, and it’s not the right way. We should not have to conform to an artificial socio-political construct of what valuable things are; that which is human is often a clearer read than that which is supposedly scientific.
I’m always amused by religious experts who don’t know the first thing about scripture. These are businesses. And the founder had something to say about that. You cannot serve god and mammon. Matt 6:24. It’s one of many things I learned in Sunday school, and it popped into my head immediately when the debate began. I don’t know how these pious were trained, but they certainly never learned the basics.
Whether or not a particular Christian is by virtue of their theology a saint’s behind or a Satan’s piss is essentially unknowable, and thus irrelevant to this subject.
posted by Clayton on
I’m a resident of Louisians. Do you know why stories like this don’t come out of Louisiana? Because on my state, no discrimination laws don’t cover LGBT people.
However, they do in Washington state, where this story comes from. Moreover, the people in Washington State and/or the representatives they elected wanted LGBT people covered. So instead of railing about gays wanting to use the power of the state, shouldn’t Stephen be supporting the right of the state to protect its citizens? This is bigger than one couple and one florist. It goes to the heart of how government is supposed to operate.
posted by tom jefferson 3rd on
Yes, if someone is really your friend..they attend your wedding. Unless you dont invite them or they are in hospital or prison.
Now then. The solution for protecting religious AND LGBT civil rights has been brought up here several times by “progressives”.
What solution do conservatives have?
posted by Jorge on
Yes, if someone is really your friend..they attend your wedding.
Sorry, no. I’m old-school on that. Brittany Spears’s 48-hour wedding was an elopement for a reason. And I expect at the end of that affair for her to still have had friends. There are certain things that are simply off-limits for me and me alone, and there is a moral judgment on that. I do not see any reason to bludgeon people with that.
posted by tom jefferson III on
Jorge;
—Sorry, no. I’m old-school on that.
If you were old-school on that, then you would have agreed with what I said.
Brittany Spears’s 48-hour wedding was an elopement for a reason.
People who were not invited to the wedding do not have to deal with the question of whether or not they should or should not go (in the event of personal objections). It is a question to be addressed by people — i.e. friends — who are actually invited to the wedding.
–And I expect at the end of that affair for her to still have had friends.
(sigh) For your argument to be valid, you would need to look at the people that the pop star actually invited to the wedding.
posted by Tom Scharbach on
And I expect at the end of that affair for her to still have had friends. There are certain things that are simply off-limits for me and me alone, and there is a moral judgment on that.
As long as you don’t skip the wedding but show up for the free eats at the reception …
Seriously, though, I can remember a time when devout Catholics would not enter a Protestant church for a wedding or any other reason, and vice a versa, when Christians would not socialize with divorced and remarried couples, and so on. Times have changed since then, of course. Things have relaxed a bit on all sides, I suspect, since the 1950’s.
posted by Jorge on
As long as you don’t skip the wedding but show up for the free eats at the reception …
…
…
I suppose.
posted by Don on
I have always burst out laughing when I read about poor Baronelle. She’s a florist who disapproves of gay people so much so that she won’t do floral arrangements for their wedding. She does know she’s a florist, right? And the guys who used her for years and then she refused to do their wedding: they do know there have to be literally hundreds of gay florists in Washington state. ones that might actually drive the flowers 100+ miles for them.
We basically own the wedding industry. while i’m personally against the right to refuse service to anyone, this simply has to be some sort of solution in search of a problem.
posted by TOM jEFFERSON III on
Don;
Yeah. If stereotypes have any validity to them, I really am not sure that social conservatives have fully realized what they are asking for with these religious freedom bills.
For example, social conservatives could suddenly find themselves with gay waiters, florists, clothing designers, film directors and the like saying that they have sincere religious objections to providing goods or services to social conservatives…
I think that this is a silly road to go down, mind you, but if the wives, girl friends and mistresses of social conservatives suddenly find it really hard to buy beauty products, get their hair down or go see a film……….