The Southern Baptist Ethics & Religious Liberty Commission (ERLC) has urged the U.S. Supreme Court to review a ruling it says requires a Washington state florist to violate her faith convictions or forfeit her business.
BP file photo
The ERLC joined Roman Catholic and Jewish organizations, as well as a Muslim imam, in an Aug. 21 friend-of-the-court brief in support of Barronelle Stutzman, a Southern Baptist who declined to design flowers for a same-sex wedding. The brief argues the high court should accept the case to reaffirm that the practice of faith “does not end when a religious believer leaves her home or place of worship” and to revisit an unwise precedent regarding the free exercise of religion.
The Supreme Court will likely decide this fall whether to review the opinion in the case. Alliance Defending Freedom (ADF), which represents Stutzman, has asked the justices to consolidate her appeal with a similar case involving Jack Phillips of Masterpiece Cakeshop in Lakewood, Colo. Phillips declined to decorate a cake for a same-sex wedding because of his Christian beliefs.
The high court agreed in June to accept Phillips’ appeal and is expected to hear oral arguments in the case this fall. With Phillips’ case, the justices – who will begin their next term Oct. 2 – will weigh in on the growing legal and cultural skirmish between religious liberty and sexual liberty.
Travis Wussow, the ERLC’s general counsel and vice president for public policy, said the entity was proud to urge the Supreme Court to hear Stutzman’s appeal.
Her case “goes to the heart of the role faith has in the public square; people of all faiths should be paying close attention to this case,” he told Baptist Press (BP) in written comments.
In Stutzman’s case, the Washington Supreme Court affirmed a lower-court decision in February, finding the U.S. Supreme Court’s 2015 ruling that legalized gay marriage means discrimination “based on same-sex marriage constitutes discrimination on the basis of sexual orientation.”
Stutzman, 72, however, had served Robert Ingersoll, a gay man, for nearly 10 years and had become friends with him. She also had hired gay employees at her shop, Arlene’s Flowers, in Richland, Wash. When Ingersoll asked her to design the flowers for his 2013 wedding to Curt Freed, Stutzman told him she could not because using her artistic ability to take part in the ceremony would violate her belief in the Christian teaching that marriage is only between a man and a woman. She referred him to other florists in the area who would provide flowers for the wedding, but Washington’s attorney general – as well as the American Civil Liberties Union (ACLU) on behalf of Ingersoll and Freed – sued Stutzman.
In their brief, the ERLC and their allies say the lower-court rulings mean Stutzman “will be forced to express the government’s message or lose her business and personal assets. That is a stunning result for the millions of business owners and workers who believe they have the responsibility to practice their faith in their business vocation by refraining from activities that violate their religious beliefs.”
The teachings of Christianity, Judaism and Islam “reflect that the historic doctrine of marriage is not rooted in animus” or hatred, according to the brief. In addition, teachers in such faiths not only uphold male-female marriage and condemn prejudice toward any person, but they advise “against any public witness or activity that would seem to celebrate, endorse or condone same-sex weddings,” the brief says.
The use of government authority to force compulsion like Washington has done with Stutzman “is to needlessly penalize people of faith, to wound the country’s long tradition of celebrating and protecting religious exercise, and to depress the fundamental pluralism that motivated our country’s founding,” the brief says.
If the free-speech clause of the First Amendment does not protect Stutzman’s rights, the free-exercise-of-religion clause of the same amendment should do so, the brief contends. The ERLC and its allies recommend the Supreme Court limit or annul Employment Division v. Smith, a controversial 1990 ruling that rolled back protection for religious free exercise.
The Smith opinion “flies in the face of the First Amendment’s text, which expressly singles out religion for special treatment,” according to the brief. The lower courts’ interpretation of the Smith decision leaves the free-exercise clause “a virtual ity: absent evidence of animus, targeting, or selective enforcement, the Constitution does not protect the exercise of religious beliefs.”
“It cannot be the case that the government, over a religious objection, can force a Muslim grocer to serve pork, a Jewish website designer to develop a website for pornography or a Christian floral designer to participate in a same-sex wedding ceremony simply because a facially neutral law says so. Yet that is the clear holding of the Washington state courts,” which relied on the Smith ruling, the brief says.
In addition to the ERLC, the others on the brief are the Washington State Catholic Conference, Jews for Religious Liberty and Omar Ahmed Shahin – a fellow of the Graduate Theological Foundation and a professor of Islamic law.
Others filing briefs with the Supreme Court in support of Stutzman included 29 members of Congress, 14 states, Becket, Thomas More Society and Cato Institute.
Kristen Waggoner, ADF senior counsel who argued Stutzman’s case before the Washington Supreme Court, expressed hope the high court would take the florist’s case and “affirm that the government shouldn’t have the power to force a 72-year-old grandmother to surrender her freedom in order to run her family business. Anyone who supports the First Amendment freedoms that the U.S. Constitution guarantees to all of us should stand with Barronelle.”
Russell Moore, ERLC’s president, introduced Stutzman at the 2015 SBC meeting during the entity’s report, and she received a standing ovation from messengers.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press, the Southern Baptist Convention’s news service.)