When rights clash

I’ve been reflecting a bit more deeply on the clash of rights occasioned by same-sex marriage.

I’ve noted before that the clash is real, and that it was foreseeable. (Well, maybe I should say that I’m assuming for sake of argument that the clash is real.)

Chai Feldblum, formerly a Georgetown Law Professor and gay activist, now an Obama EEOC official (and presumably still a gay activist), foresaw it, admitted it, and was candid enough to say that she thought gay rights should trump religious freedom almost every time. For her candor, she has a soft spot in my heart:

In her symposium paper Moral Conflict: (Some) Religions and Marriage Equality, Feldblum asked what effect “marriage equality” – i.e., marriage between members of the same sex – will have on the rights of those employers, landlords and others whose religion teaches them that same-sex sexual conduct is sinful (and perhaps harmful to society):

Let me be very clear … [I]n almost all the situations (not perhaps in every one, but in almost every one), I believe the burden on religious people that will be caused by granting gay people full equality will be justified …. That is because I believe granting liberty to gay people advances a compelling government interest, that such an interest cannot be adequately advanced if “pockets of resistance” to a societal statement of equality are permitted to flourish, and hence that a law that permits no individual exceptions based on religious beliefs will be the least restrictive means of achieving the goal of liberty for gay people.

(Source here [link since broken; try here].) …

I’ve noted the irony that the court-inferred rights of gay individuals and couples should trump the explicit textual right of the free exercise of religion in our First Amendment.

But this week has brought such thoughts back.

In a minor annoyance, an internet troll who calls himself out, gay and Christian called me an unChristian gay-basher, and when challenged to name even one instance of bashing resorted to a string of fanciful, jargon-laden insults that proves his position: disagreement equals bashing – at least if the person disagreeing (it only takes one to disagree if the other side has an axiom that brooks no gainsaying) is a “heterosupremist.”

Not at all minor: Arlene’s Flowers in Richland, Washington has lost its case in the trial court, its owner has suffered a potentially bankrupting money judgment against her personally in favor of the State of Washington, and the Attorney General of Washington has offered to settle with her for pennies on the dollar if she will give up her appeal and promise never to follow her conscience again.

Well, that last clause isn’t how he put it. He said she must agree to stop discriminating, which he knows after litigating this case means retiring from the floral business.  And many in the world seem to think that’s a fitting resolution to the case. They’re determined to eradicate “pockets of resistance.”

So the question that’s haunting me today is, given the strength of the florist’s case (outlined below) and the negligible harm suffered by her customer, why does all progressive opinion rejoice in her legal trampling?

* * * * *

Free exercise of religion was slyly demoted to freedom of worship 5+ years ago while gays’ desire for social approbation was promoted euphemistically to freedom “to love in the way that they choose” (Hillary Clinton speaking as Secretary of State Hillary about the Obama Administration’s Human Rights agenda Fall of 2009 at Georgetown).

The demotion is ominous on more fronts that the sexual revolution:

Any person of faith knows that religious exercise is about a lot more than freedom of worship. It’s about the right to dress according to one’s religious dictates, to preach openly, to evangelize, to engage in the public square. Everyone knows that religious Jews keep kosher, religious Quakers don’t go to war, and religious Muslim women wear headscarves”yet “freedom of worship” would protect none of these acts of faith.

Those who would limit religious practice to the cathedral and the home are the very same people who would strip the public square of any religious presence …

The effort to squash religion into the private sphere is on the rise around the world. And it’s not just confined to totalitarian regimes like Saudi Arabia. In France, students at public schools cannot wear headscarves, yarmulkes, or large crucifixes. The European Court of Human Rights has banned crucifixes from the walls of Italian schools. In Indonesia, the Constitutional Court is reviewing a law that criminalizes speech considered “blasphemous” to other faiths. Efforts to trim religion into something that fits neatly in one’s pocket is the work of dictators, not democratic leaders. So why then have our leaders taken a rhetorical scalpel to the concept of religious freedom?

(Ashley Samelson from the Becket Fund for Religious Liberty)

So, legally and rhetorically, Chai Feldblum’s vision is playing out.

Why? How? How have we gone from a regime of robust religious freedom to one of puny “freedom of worship” where religious conscience must be eradicated if it takes politically incorrect form in opposition to some aspect of gay rights?

The conventional answer to that question is that you can worship and believe as you like, but once you enter the marketplace, you must not force your beliefs on others.

Snopes doesn’t say whether she actually said this.


But why must the merchant be the one whose feelings convictions give way?

There are two in the marketplace, seller and buyer. That’s what makes it a marketplace.

Both are there voluntarily. There’s no law preventing people from arranging their own flowers, or, gosh, there are at least 22 florists in Richland, Washington. But Rob Ingersoll wanted Arlene’s arrangement. The owner was (is?) his friend. He was her repeat customer. There’s a reason: Some floral arrangements are better than others because they’re expressions of the arranger. You can’t say you want her arrangement rather than someone else’s without admitting that (or admitting something sinister about yourself).

So why don’t we say to the two grooms that they can believe privately as they will about the meetness of same-sex marriage, and that we will in no way interfere if their pastor is willing to sanction their belief by an ersatz religious rite, and even (as the courts are compelling of us) that the government will pretend they’re married, but that they cannot force their feelings on other private actors?

Why do we cheer the lawsuits of Attorney General Bob Ferguson and Rob Ingersoll, but vilify Barronelle Stutzman?

* * * * *

Why? I’ve been listening and reading pretty hard, and I believe it is the manifestation of a novel axiom that gay rights are real while religious freedom is merely notional. That axiom, once spotted, is “hard to un-see,” and it’s ubiquitous.

Millions of nominal (if not nominalist in the philosophical sense) Christians in America agree with that. Rob Bell says the church is moments away from recognizing gay marriage. We have met the enemy and he is us.

I would, frankly, flip the characterizations, maintaining that religious freedom is a real and fundamental, while that the right of two people of the same sex to marry each other is merely notional (and that the right of two people of the same sex to marry with universal approbation and no pockets of resistance is totalitarian).

I think history is on my side, mere novelty on the other. Why novelty is in the saddle and rides mankind is beyond my scope, though I have some opinions – opinions that unmistakably bear a religious impress.

In legal terms, I’d bring this down from the abstraction of “did Rob Ingersoll have a right to get flowers for his wedding without discrimination” to the more concrete “did Rob Ingersoll have a right to commandeer Barronelle Stutzman’s creative efforts so that he could have a floral arrangement from her for his novel “wedding,” which she couldn’t countenance because of her Christian understanding of marriage?”

* * * * *

The Attorney General of Washington is right to fear the appeal of Arlene’s Flowers.

I use “appeal” equivocally, because Barronelle Stutzman is an appealing lady.


We need to assure that we get out the faces and stories of these putative villains when the Gay Outrage Machine revs up, because words only go so far in combatting the Zeitgeist’s fawning portrayal of the rebuffed gay customers. We must show that the artisans who declined participation in novelty “marriages” are real (even nice). We must, in short, match Hollywood’s and HRC’s pro-gay media game.

Second, I continue to believe that if Barronelle Stutzman’s legal Appeal, or one like it, gets to the U.S. Supreme Court, her tiny little pocket of resistance will be vindicated, maybe even unanimously: Artisans such as florists, backers and photographers (not to mention sculptors, portraitists, poets and others in “the fine arts”) will be held exempt on free speech grounds from compulsion to express in their craft sentiments of approbation they do not feel. (This may be the sort of exception Chai Feldblum coyly alluded to.)

As an attorney, I’ve internalized the superiority of that free speech argument to the level of reflex. I reflected on it at considerable length two weeks ago. And it’s my strong conviction that Rob Ingersoll and Bob Ferguson should lose because they’re trying to use the law to force Barronelle Stutzman to express something she does not believe. It’s not even a hard case – unless the “abortion distortion factor” has been joined by a new distortion factor.

There’s a name for men who insist on having their way with unwilling women, even if they club the woman into nominal consent, as Attorney General Ferguson is attempting. The etiology of that unwillingness is legally irrelevant.

So I will exult in a SCOTUS victory and ADF will trumpet the victory.

But the fact that specifically religious freedom is vanishing, because it lacks the cachet of free speech. will remain.

* * * * *

Tomorrow begins Lent in the Eastern Church. It’s likely that my blogging will diminish, as I’ve got a feeling it’s one of the things from which I should fast this year.

Then, unless I decide I like it that way, I’ll be back April 12 or 13.

* * * * *

“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.