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Do Business Owners Have the Legal Right to Discriminate Against Others Based on their Personal Religious Beliefs?

An Open Letter to Religious Believers


A simple Google search, or examination of any number of American (and even international) newspapers and magazines, would bring up multiple cases of discrimination against people who identify as lesbian, gay, bisexual, or transgender (LGBT), among others. Recently, as more and more states have passed laws or lifted bans that allow same sex couples to legally marry, there has been a trend of small business owners refusing to provide goods or services to would-be LGBT customers. Whether these businesses sell photography services, wedding cakes, or flowers, the common theme in each case has been the same: I wont sell to you because according to my religion you are committing a crime against god, and I refuse to participate in what I perceive to be your sinful behavior. I will not address holy book-based arguments from religious believers that are for or against (mostly against) homosexuality, as what they believe is irrelevant to the issue (which I will show). However, an entire book could be written on all the ways these arguments are nonsense, and indeed, many authors have done so already. I will focus on what the law of the land has to say about discrimination based on sexual orientation. Specifically, I will focus on the issue within the context of Washington State law, because not all states have joined the 21st century in their treatment of individuals, and I am more familiar with the law in my own state. Also, I will focus on this issue as it pertains to business owners, using the Arlenes Flowers case (more detail on this later) as a prime example of illegal discrimination based on sexual orientation. First, lets review some legal and historical facts. At the opening of 2006, Washington States law against discrimination (RCW.49.60.10 et seq.), as amended by House Bill 2661, went into effect, which prohibited discrimination based on sexual orientation. Sexual orientation discrimination in public workplaces had already been prohibited in Washington State since 1991 when Governor Booth Gardner issued an Executive Order. The passing of House Bill 2661 went an important step further than the Executive Order to ensure sexual orientation could not legally be used as a reason to discriminate by private employers or in the areas of real estate transactions/housing, credit or lending transactions, insurance, public accommodation, or general commerce transactions. I could end this letter on the legality or illegality of discrimination here and now. There you have it. Its been illegal for a business owner to discriminate based on

someones sexual orientation in Washington State since 2006. End of story. But that wouldnt be very interesting, would it? Lets dig deeper. I promised you I would provide some detail on the Arlenes Flowers case, for those of you who arent familiar. In this short and not-so-sweet version, Robert Ingersoll, a man engaged to marry his same-sex partner, Curt Freed, was refused business by Barronelle Stutzman, the shops owner. Both men had been regular customers of Ms. Stutzmans for nine years, openly purchasing flowers for each other. However, when Mr. Ingersoll went into the shop last March to request flowers for his wedding to Mr. Freed, to his surprise and dismay Ms. Stutzman replied, I am sorry. I can't do your wedding because of my relationship with Jesus Christ. This blatant disregard for the law led to an eventual civil lawsuit against Ms. Stutzman from the states Attorney General as well as from the couple (since Ms. Stutzman refused to accept their kind offer that would have allowed her to gracefully save face and keep the whole mess out of the courtroom). I think I have heard every excuse imaginable (and then some!) for why many people think that Ms. Stutzman had the right to do what she did. Ive spent an inordinate amount of my personal time refuting every single one of them. For the purpose of this communication, I will address just a few of the more pervasive ones. This is a Christian nation! We were founded on Judeo-Christian principles, werent we?

False. One could author a hefty volume to dispel this common fallacy. Suffice it to say, we are emphatically not a Christian nation, or a nation founded on the principles of any other religion. Since I know many wont simply take my word for it, I will go into a bit more detail on this issue. There is no mention of God in the Constitution. Not even once. And the only mention of religion at all is in Article 6: [N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. In the First Amendment to the Constitution, included in the Bill of Rights, is this constraint on both religion and government: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Furthermore, as President John Adams made very clear in the Treaty of Tripoli, the

Government of the United States of America is not, in any sense, founded on the Christian religion This was a clarification of the stance of the United States government when it comes to matters of religion that it has no stance. It is, and must remain, neutral to religion. In addition, Supreme Court cases throughout United States history have affirmed the right of a person to believe what he or she wishes, but have also affirmed that their beliefs do not give them the right to act on those beliefs when they are contrary to laws in matters that are of interest to the state or abridge the rights of others. Given what some peoples beliefs would give them license to do if their religions tenets were strictly adhered to, one can conclude that chaos, religious wars, and slaughter on a massive scale would be the end result, just to name a few problems. In fact, this is precisely what the Founding Fathers sought to avoid by building a secular governing structure. They had seen how religion could destroy nations in Europe and beyond. But most Americans are Christians, and certainly most Americans have some sort of religion. That has to count for something!

No. Sorry. Majority rule isnt the way things work in America. In fact, we have specific checks and balances in place to prevent a tyranny of the majority. Democracy cannot exist without protecting the rights of the minority. By its very nature, a democracy ensures that the minority has the chance to become the majority through the power of the ballot. Those in the majority at any given time should always bear in mind that they may (and at some point likely will) find themselves in the minority. Democracy is what ensures that they will have a chance at again becoming the majority. Some of the most oppressive countries in the world are such because the rights of the minority are not protected, resulting in brutal dictatorships and an absence of basic human rights.

I thought a business owner had the right to refuse business to anyone for any reason? I mean, look at those signs that say, No shoes. No shirt. No service.

Wrong again. A business owner can refuse business to a person for reasons that are not protected by the states anti-discrimination law. There is no legal protection for people who dont wear shoes. (So if you are a Hobbit, Im sorry, but no one has to serve you second breakfast. I suggest you try Rivendell.) But my religious rights are being trampled on when you make my business obey these laws! What about my freedom of religion?! First of all, you are not your business. A business is a separate legal entity that does not have the religious freedom you, as a person, have. Second, you do have freedom of religion right up until the point where your freedom infringes on the freedoms of others. Religious freedom doesnt mean freedom to force everyone to follow your religion. Why cant they just go buy their flowers from another florist who doesnt mind selling to gay people?

This is the same argument that was used prior to and during the Civil Rights Movement of the 1950s-60s. If youve paid any attention to history, youll recall how well that worked out. (Hint: it didnt.)

Consider this hypothetical scenario recently proposed by a person who called the office of Senator Mike Hewitt (R), Walla Walla, who had signed onto Bill 5927 (dubbed the Right to Discriminate bill) proposed by Senator Sharon Brown (R), Kennewick. The caller posed the question that if a small community had only a single grocery store, and the religious owner refused to sell to gay people on the grounds that supporting their subsistence was contrary to his beliefs, where could a gay person reasonably go to purchase food? The staffers shocking response: Gays can just grow their own food. This incident perfectly illustrates what is wrong with the idea that someone can just go somewhere else. Whether there was another flower shop across the street from Arlenes proclaiming We support gay marriage! on their signage is beside the point. If followed to its logical conclusion, inequality is, in fact, the end result of separate but equal. Senator Hewitt did eventually come out as not endorsing the statement by his wayward staffer. He also claimed he hadnt fully read the bill before signing on to it. However, as of this writing, Senators Brown and Hewitt, along with eight other Washington State Senators, are still attempting to push this bill through the Senate. In writing the majority opinion on the recent Defense of Marriage Act (DOMA) ruling, which was struck down as unconstitutional, Supreme Court Justice Kennedy declared that the Defense of Marriage Act interferes with the equal dignity of same-sex marriages. He continued: It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.

The same reasoning used in this Supreme Court ruling can be applied to the Arlenes Flowers case. Refusal to do business with anyone, no matter how sincere and deeply held ones beliefs are, is not a valid excuse to break the law in a secular nation. To allow otherwise deprives people of their personhood and dignity and treats people disrespectfully, unequally, and as second-class citizens. I have heard many other arguments from those that are opposed to what they see as an abridgement of their religious freedom, but as I indicated at the outset of this letter, the majority of them are irrelevant and lack substance. Whatever you may think about the morality of homosexuality, based on your religions teachings, is a legally moot issue. The outcome of this seemingly small and insignificant case has major implications for the civil rights of everyone in the United States, including those of religious people themselves. A word of caution to any who would impose their majority will on others: eventually the table may turn and you will find yourself on the receiving end of tyranny, in truth. When it comes to the Christian religion in particular, I urge you to tread lightly because the privileged status you have long enjoyed as the majority in America is swiftly coming to a close. A New Enlightenment is afoot, and its harbingers do not forget. Jennifer Baker, Cofounder & Vice President Tri-City Freethinkers August 11, 2013