What is really at stake in the Arlene’s Flowers case?

The Tri-City Herald published an opinion piece Nov. 14 by a local professor that purported to outline the “facts” of the Arlene’s Flowers case. In it, the professor calls his opinions “unassailable facts” while alternative views are “subjective interpretation.” If only constitutional questions were so simple.

As a professor of constitutional law, I’d like to explain what is truly at stake when a government forces someone to make a choice to either participate in commerce or creative expression that intrudes upon one’s religious beliefs or face severe punishment. This is the choice Barronelle Stutzman, longtime owner of Arlene’s Flowers, faces.

I will answer each of the professor’s “facts” in turn.

Fact No. 1: The U.S. Constitution guarantees “free exercise” of religion. The Washington State Constitution provides even stronger language, protecting an “[a]bsolute freedom of conscience.” But that doesn’t always stop the government from trying to undermine these explicit protections.

A recent example is the Hobby Lobby case, in which the government tried to punish religious business owners with millions of dollars in fines for excluding abortion-inducing drugs from their health plans. The U.S. Supreme Court affirmed religious business owners’ free exercise rights at work. Mrs. Stutzman seeks the same right here.

One of the first things taught in any law school is that constitutions trump statutes.

Using a state statute to force Mrs. Stutzman to celebrate a definition of marriage she does not believe in would violate her “absolute freedom of conscience” and her right to free speech.

Fact No.2: Mrs. Stutzman does risk financial ruin. The state and the private plaintiffs, represented by the ACLU, chose to sue Arlene’s Flowers as a business and Mrs. Stutzman personally. Her business and family’s personal assets are at stake. After two years of litigation and public pressure, the state agreed to accept $1 in fees.

But the private plaintiffs continue to demand attorneys’ fees. The money raised on the GoFundMe page will not even come close to covering the fee award sought by the plaintiffs.

Fact No. 3: It is true that Mrs. Stutzman could voluntarily stop designing wedding arrangements altogether. But that suggestion is as offensive as it is unconstitutional. The state may not legally force Mrs. Stutzman to make that choice. The government may not require a person to give up a constitutional right in exchange for a discretionary benefit — in this case her ability to stay in business.

Given the high value the state and federal constitutions place on the free exercise of religion and artistic expression, using a state statute to make Mrs. Stutzman choose between her business and her rights is patently unconstitutional.

Fact No. 4: Mrs. Stutzman served the plaintiffs for nearly a decade. She declined one event — a religious event. The plaintiffs easily obtained wedding flowers nearby. They are married. Mrs. Stutzman would still gladly design flowers for them. So the attempt by some to equate what happened between Mrs. Stutzman and this customer with declining a customer based on race is absurd.

Not only did Mrs. Stutzman not use identity as a basis for referring a customer, she wouldn’t.

Yet, she may lose her home, her livelihood and her right to practice her art and live her faith.

Mrs. Stutzman recently expressed what’s at stake:

“For artists, creativity is the very core of who we are. Our ability to draw on our deepest beliefs and unique sensibilities enables us to create one-of-a-kind works of art and works of the heart.

I’ve never questioned Rob’s and Curt Freed’s right to live out their beliefs. And I wouldn’t have done anything to keep them from getting married, or even getting flowers.

I want to believe that a state as diverse as Washington, with our long commitment to personal and religious freedoms, would be as willing to honor my right to make those kinds of choices as it is to honor Rob’s right to make his. That’s not endorsing a negative thing, as I’ve been accused of doing. It’s promoting good things: reason, fairness and mutual tolerance.”

She’s right. America has a long history of protecting freedom of conscience. Efforts to force private citizens to engage in artistic expression against their will are relatively new. Until the last few years, those efforts uniformly failed. Every American should hope this one fails.

If not, the “unassailable fact” will be that government will have greater power to intrude into areas of freedom once reserved for the hearts, minds, and souls of individual citizens.

This story was originally published November 21, 2015 at 11:06 PM with the headline "What is really at stake in the Arlene’s Flowers case?."