Barronelle Stutzman, a 72-year-old grandmother, has lost her flower business and potentially her life savings for acting on her religious convictions.

In a case that has received wide attention, the Washington Supreme Court ruled Feb. 16 that her faith-based decision to decline to provide flowers for a same-sex wedding violated the state’s “public accommodation” rule. The court further determined that Stutzman’s religious conviction offered her no protection from its judgment.

Stutzman, the owner of Arlene’s Flowers in Richland, declined to provide flowers for a same-sex wedding of a regular customer. This customer had been buying flowers from Stutzman for almost a decade, with no issues. She had not discriminated against this customer because of his sexual orientation; nevertheless, because of her Christian belief that God ordained marriage to be between a man and a woman, she felt she could not participate, through her creative services as a florist, in a ceremony that she felt would violate her own religious convictions.

Stutzman, from the outset, was persecuted for her decision. According to the court’s opinion, the same-sex couple posted their disappointment on Facebook, and it went viral. Although the court opined that her customers were simply made nervous about the publicity, Stutzman says she received threats to her business — a sign of how Christians are treated in contemporary culture.

Not content to look for another florist — several were recommended by Stutzman — the customers commenced a lawsuit to ruin her in the name of — well, what exactly? The court’s opinion was murky on this point, but it was crystal clear in its view that Christians or other believers have no place to exercise their faith in public life.

The court applied Washington’s “public accommodation” law, which forbids “discrimination” on the basis of, among other things, sexual orientation. The court found that Stutzman’s one act of refusal based on her deeply felt religious convictions was sufficient to violate the law. But the court made a fundamental error in its analysis.

As Stutzman argued, she was not discriminating against anyone based on sexual orientation. Otherwise, her serving this same customer for nine years would be a strange form of discrimination indeed. Stutzman instead argued that she did not want to participate, through use of her services, in a ceremony that she felt infringed on her religious exercise.

The court did not agree with this reasoning and rejected what it called the “status/conduct” distinction, or the distinction between who one is and what one does. That is, the court determined that discrimination extended not only to refusing to serve a customer on the basis of a legal characteristic set out in the law (such as race), but could also extend to wishing not to participate in the conduct of the customer, here by participating through creative services in a wedding or other event.

Such reasoning moves the law further down a dangerous road. The court ties itself in knots with discussions of the Supreme Court’s free-speech analysis and how to draw lines between artistic expression and mere business, with the former receiving constitutional protection and the latter not.

But all that assumes the premise that discrimination against someone based on some characteristic enshrined in law must extend to every action someone might decide to do. This has obvious problems that seem insurmountable in future cases: Should a Catholic participate in a Satanic ritual, for example, by providing a cake in the shape of angels or Mary to be consumed as part of that ritual? Should a Jewish caterer cater an anti-Semitic event? Can Muslim butchers be forced to prepare meat they consider unclean?

The examples can be multiplied indefinitely. That is why the court’s decision cannot be considered apart from the cultural context, because such other examples (except perhaps the Catholic one) are extremely unlikely to occur, as, indeed, they have not occurred. These cases, instead, are a reflection of a wider cultural battle that largely puts Christians against the secular society.

But more important, the court is working in a tradition that is directly at odds with much of the Western moral and political tradition. Separating conduct and status is largely the rule of law. The law judges, or should judge, actions, not persons.

The famous social theorist Henry Sumner Maine, in his 1861 book Ancient Law, even charted the progress of societies along a path where they left a “status” society and became one based on “contract,” that is, voluntary association and open negotiation. That, in fact, is the purpose of much antidiscrimination law in the first place.

Similarly, the Christian admonishment to hate the sin and love the sinner acknowledges the existence of an objective set of values that can be reached through reason and in common. It would not be too much of an exaggeration to say that the distinction between status and conduct is what has made political life possible in the West and also made possible the increasing freedom for those whose “status” traditionally caused them to be subject to discrimination.

The court waves this crucial and hard-won distinction away as if it has little merit. In this, the court simply mirrors the culture, in which identity politics overwhelms rational discourse, and politics becomes simply a grab for power. Contemporary liberalism seems more comfortable with forcing others to serve its particular view of the world rather than continue the American practical tradition of agreeing to disagree over matters that particular citizens find of ultimate importance.

And, of course, the reverse logic applies to Stutzman. The court rejected Stutzman’s defense based on the exercise of religious freedom. First, it found that the Washington antidiscrimination law did not deserve what is called “strict scrutiny” review, which would have required the state to show that the law furthered a “compelling” government interest and was written in as narrow a way as possible to further that interest, to avoid infringing on other rights as much as possible.

The court determined that the law did not deserve this higher level of scrutiny because it did not “discriminate against some or all religions (or regulate conduct because it is undertaken for religious reasons).” But that seems to be exactly what is happening here.

Stutzman is being punished not for her status (even as Stutzman’s customers cannot be punished for their status), but for conduct based on that status. This reasoning is, in part, what undergirds other government actions, like President Barack Obama’s Health and Human Service’ mandate — religion is fine if kept within your own head or the four walls of a house of worship, but once a believer tries to act on it, the state can prevent you in the name of whatever secular value it happens to hold at the moment.

Rather, the court found that the law served a broad societal purpose and would survive the higher level of scrutiny anyway: The law serves a “broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace.”

Admittedly, this argument is appealing because of the country’s history of discrimination that includes, it must be said, a rich tradition of anti-Catholic prejudice. But this case is not like the Civil Rights Act overcoming state Jim Crow laws.

As Dan McLaughlin has written, the Christian teaching on marriage cannot be likened to racial discrimination, not to mention that in our current cultural battles the full power of the state and many private institutions is against believers. And as statements by those deposed in the matter seem to reveal, one argument the state of Washington was trying to make is that the standard Christian teaching amounts to some sort of invidious discrimination.

This is what persecution looks like in modern secular America. Christians do not need to be in the Colosseum. A state courthouse and endless bureaucratic hurdles will do just fine, and Nero or Diocletian could just as well wear judicial robes as a toga.

 

Gerald J. Russello is a lawyer and editor of The University Bookman.