This is a legal analysis of the story previously filed by my colleague John Nolte.
A Christian florist in Washington State, who declined to provide flowers for a same-sex wedding because she objects for religious reasons, is being taken to court by Washington Attorney General Bob Ferguson. This case could ultimately lead the U.S. Supreme Court to revisit one of its past mistakes.
Barronelle Stutzman is the owner of Arlene’s Flowers and Gifts, a floral shop in Richland, Washington. Stutzman is also a devout Christian who believes as part of her faith that marriage is only the union of one man and one woman.
Her flower shop regularly serves gay customers, and she has employed gay people. But when asked by Robert Ingersoll to provide flowers for his same-sex wedding ceremony, Stutzman declined to take the job because it would violate her religious conscience. She told him her objection arose from her “relationship with Jesus Christ.”
Ferguson, the Democrat attorney general of Washington State, filed suit against Stutzman for violating Washington’s Consumer Protection Act, which forbids discrimination based on sexual orientation. Violations carry a $2,000 fine, and–more importantly–a court order that would command Stutzman to violate her religious beliefs.
Stutzman’s lawyer is J.D. Bristoll, an attorney allied with the Alliance Defending Freedom, the national law firm representing California’s Prop 8 before the U.S. Supreme Court. Bristoll explains this is not about homosexuality, since the shop serves gay customers all the time. It is instead specifically objecting to homosexual marriage on religious grounds and declining to take part in one.
This case goes to the absolute core of religious liberty, asking whether the government can compel a sincere Christian believer to violate her religious conscience, and it could make new law.
The First Amendment guarantees that every person has a fundamental right to the free exercise of religion. In 1990, the Supreme Court (wrongly) held in Employment Division v. Smith that laws of general application do not trigger claims under the Free Exercise Clause; only laws that actually target religious exercise can be struck down for that reason.
The opinion was written by none other than conservative Justice Antonin Scalia, one of the few instances where I disagree with how he wrote an opinion. I remain convinced that he just picked the wrong words to set forth the rule and did not intend to cast a key constitutional provision in such narrow terms.
Smith overturned years of (correctly-decided) precedent, which held that whenever laws impair a person’s sincere religious belief, the law is presumed invalid as applied to that person unless the government can show the law is absolutely necessary and narrowly targeted to achieve a truly compelling public interest.
Smith involved Native Americans who used peyote (an illegal, hallucinogenic drug) in their religious rituals. The Court upheld a federal law against its use. The Smith decision was widely criticized at the time, with religious-liberty scholars saying it should be overruled. Today’s case highlights Smith‘s shortcomings.
This case clearly involves a violation of the First Amendment Free Exercise Clause. Government cannot compel someone like Stutzman to violate her religious beliefs under these circumstances. The time has come for the Court to overrule Smith, or announce some rule as to why these types of cases are different.
Either way, this case must now work its way all the way through the court system. If the lower courts do not vindicate Stutzman’s constitutional rights, then the U.S. Supreme Court will have occasion to revisit what many consider to be a constitutional blunder from its past.
Breitbart News legal columnist Ken Klukowski is senior fellow for religious liberty at the Family Research Council and on faculty at Liberty University School of Law.