Ithis is already seen: A Republican president (Nixon, Reagan, the first Bush, Trump) has a historic opportunity to appoint multiple Supreme Court justices, creating the expectation that the court will push back on an evolving set of laws that supporters of the president perceive as a threat fundamental constitutional commitments. But when the time comes, the judges hesitate, dodge or disappear – which happened again on Friday, when the judges refused to consider the case of Arlene’s Flowers v. Washington.
First, a bit of contextualization. Public housing laws that guarantee equal treatment for same-sex couples can often infringe on essential freedoms of religion and expression. Typically, contentious cases involve a Christian wedding photographer, bespoke baker, or florist who is happy to serve any client regardless of their sexual orientation, but who religiously opposes the creation. of a particular product or service – a custom cake, a flower arrangement – that expressively celebrates a same-sex marriage.
In The flowers of ArlÃ¨ne, the seller is Washington florist, Barronelle Stutzman. For many years, Stutzman had sold flowers to a client, Rob Ingersoll, knowing he was gay. But when Ingersoll asked him to make the flower arrangements for his wedding to his same-sex partner, Stutzman politely declined and referred him to several other florists. She was then sued by Ingersoll and her partner and the state of Washington. The plaintiffs asked for $ 7.91 in damages (for the cost of driving to another florist) and an injunction prohibiting Stutzman from refusing to do same-sex marriages.
In Stutzman’s case, as in other high profile cases, everyone agreed that the seller’s religious objection was sincere; this is not an excuse to avoid serving LGBT customers. So the burden of the seller’s religious commitments is straightforward.
The conflict with free speech is slightly more subtle. A central principle of the doctrine of freedom of expression is the freedom do not talk: No one should be forced to say something they don’t believe. As Thomas Jefferson put it, it is “sinful and tyrannical” to force someone to support “the spreading of opinions in which they do not believe”. But in the case of wedding vendors, the message, or the expressive element, is the only thing that interests both parties. The seller, while willing to serve any customer, opposes the creation of a product that she says expresses approval of same-sex marriage. Customers, on the other hand, had no difficulty in obtaining the product or service they wanted from other suppliers. It is not the loss of a product or service of which they are complaining, but rather the “dignified injury” caused by the seller’s expression of his disapproval of their union. homosexual.
So there are some vital First Amendment questions hanging in the balance. The Supreme Court had the opportunity to decide these questions three years ago in Pastry masterpiece against Colorado. But in this decision, the Court relied on certain facts specific to the case (of questionable relevance) to avoid deciding the central questions. It was hardly a surprise. Judge Anthony Kennedy, who wrote the majority opinion, was on the verge of retirement and, as might be expected, was unwilling to compromise his legacy as a champion of gay rights during his last term.
Since then, however, Justices Kennedy and Ginsburg have been replaced by Justices Kavanaugh and Barrett. There was therefore good reason to hope that the Court would now deal with the nagging and vital issues of the First Amendment. And The flowers of ArlÃ¨ne provided a great opportunity to do so.
The court’s disappointing decision last month in Fulton v. Philadelphia gave observers another reason to hope that the judges The flowers of ArlÃ¨ne. In Fulton, a child care case, the judges found an extremely narrow (and easily defensible) reason for ruling in favor of Catholic social services while avoiding the broader question of whether the free exercise clause of the First Amendment requires accommodation of religion. In The flowers of ArlÃ¨ne, by contrast, Stutzman had been held responsible in Washington courts, and no delicate means of escape had been offered. The judges could not therefore circumvent the question of free exercise.
Nevertheless, on Friday, the court refused without explanation to resume The flowers of ArlÃ¨ne. Justices Thomas, Alito and Gorsuch officially supported the review, and since four votes are enough to accept a case, it is evident that the new judges – Kavanaugh and Barrett – chose to dismiss Stutzman’s appeal and leave the judgment behind. against it to be maintained.
As the Court gave no explanation for his refusal, it is difficult to know exactly what to think about the dismissal. Have Kavanaugh and Barrett decided to side with the anti-discrimination agenda to the detriment of constitutional freedom and freedom of expression commitments? Did these judges find it prudent to keep their heads down because they are relatively new to the court? Is the prospect of strong criticism from the cultural, legal and academic public at large too intimidating (as it arguably was earlier for judges like Kennedy and Souter)? Do these judges have in mind a strategy or a broader program or a jurisprudential compromise?
It is possible that some conservative judges – Kavanaugh, Barrett, perhaps Roberts – are more interested in protecting institutional religion and institutional religious freedom than in defending the sole Christian dissident like Barronelle Stutzman. The Court has been active in rejecting state-imposed limitations on the funding of religious schools. And going back almost a decade in history Hosanna-Tabor (written by Chief Justice Roberts), the Court was relatively firm in recognizing the so-called âministerial exception,â which helps insulate religious institutions from the interference of anti-discrimination and disability laws in the selection. of some of their agents on mission and employees. Those (like me) who regard “church freedom” as crucial can be reassured by these decisions.
But it will be a little consolation for the individual Christian, like Barronelle Stutzman, who just wants to follow the teachings of Christ and happily serve anyone as long as she doesn’t have to assert aspects of the culture that are contrary. to his faith.
Steven D. Smith is Warren Professor Emeritus of Law at the University of San Diego
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Image by Geoff Livingston via Flickr. Cropped image.