Can Barronelle Stutzman, a Christian, run her flower shop in keeping with her faith?
The Supreme Court — with determinative votes cast by Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh — has effectively decided she cannot.
"My faith is a part of every aspect of my life," Stutzman said in a sworn statement presented seven years ago in a Washington State court. "I believe that God requires me to apply my faith in all that I do whether that is in my personal life or my business."
"In the mid-1970s, I began learning the art of floral design and creation at my mother's floral shop in Connell," she said. "In 1989, my mom was diagnosed with Alzheimer's. So I purchased the business from my mom in 1996 and became the sole owner of Arlene's Flowers, where I continue to design floral arrangements."
Over the years, Stutzman employed gay workers and did floral design work for gay customers — without discriminating in any way.
Then, one long-time customer, Robert Ingersoll, asked her to do the floral work for his wedding to another man.
"I tried to respond in the most sensitive way I knew how," she told the court. "I gently took his hand, looked him in the eye, and told him that I could not do his wedding because of my relationship with Jesus Christ."
"I believe that God created two distinct genders, male and female, in His image and the Bible defines marriage as a union of one man and one woman as ordained by God," she said. "This is also the doctrine of my Southern Baptist faith."
"Participating in a same-sex wedding ceremony in the way Rob requested would violate my conscience, and I would be held accountable to the Lord for this," she concluded. "I also believe that if I participated in a same-sex wedding ceremony in the way Rob requested, others would see my actions as an endorsement of the ceremony."
Washington Attorney General Bob Ferguson sued Stutzman, arguing she had violated a state law prohibiting discrimination based on sexual orientation.
Stutzman fought back. She argued that the Constitution prevented the government from forcing her to act against her faith or to express a message she did not wish to express.
That, of course, is exactly what the government would be doing if it forced her to create custom floral arrangements specifically intended to celebrate a same-sex marriage.
The First Amendment says in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech." The Fourteenth Amendment imposes this restriction on state governments.
Yet, in recent decades, the Supreme Court has issued opinions that concede to the government a power to restrict the free exercise of religion or compel an individual to act against his religion.
In the 1990 case of Employment Division v. Smith, the question was whether Oregon could deny unemployment compensation to two workers who had been fired after they ingested peyote "for sacramental purposes at a ceremony of their Native American Church."
The court ruled 6 to 3 against these members of the Native American Church. Justice Antonin Scalia wrote for the majority "that the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law prescribes (or proscribes) conduct that his religion prescribes (or proscribes).'"
In the 2018 case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the question was whether the state could force a baker to make a cake for a same-sex wedding, delivering a message that violated his religious beliefs.
The court ruled 7 to 2 for the baker — but not in defense of his freedom of speech or the free exercise of religion. Instead, using the argument in Smith, Justice Anthony Kennedy argued for the court that the Colorado Civil Rights Commission had showed "hostility" to the baker's religion and was therefore not "neutral" in it is application of the law that restricted his free exercise of religion.
"The Court's precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws," Kennedy wrote. "Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach."
In Fulton vs. Philadelphia, which the court decided three weeks ago, the question was whether Philadelphia could ban the Catholic Church from taking care of foster children because the church — in keeping with Catholic teaching — would not hand over children to same-sex couples.
In this case, Chief Justice Roberts was joined by five justices — including Kavanaugh and Barrett — in an opinion that did not argue the Catholic Church had a right to freely exercise its Catholicism by not handing children over to same-sex couples. It argued instead that because the Philadelphia rule restricting discrimination against same-sex foster parents allowed "exemptions," it was not the sort of generally applicable rule needed to discriminate against religions.
The Washington Supreme Court ruled in 2019 against Baronelle Stutzman, concluding that her First Amendment rights to freedom of speech and the free exercise of religion could not stop the state from forcing her to practice her floral art to celebrate a same-sex marriage.
She appealed to the U.S. Supreme Court. Four of the nine justices would have needed to agree to take up the case. She fell one short.
In a vote reported Friday, Justices Neil Gorsuch, Samuel Alito and Clarence Thomas did agree. But Roberts, Barrett and Kavanaugh did not.
They let stand Washington's decision to restrict a woman's free exercise of Christianity.
(Terence P. Jeffrey is the editor in chief of CNSNews.com.)