A Good Week at the Supreme Court

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This is the last week for the justices of the US Supreme Court to issue opinions on cases that were argued this term.  Two cases we’ve been watching closely, beside the already issued Masterpiece Cakes, are NIFLA v. Becerra and the disposition of Barronelle Stutzman’s case in Arlene’s Flowers.   Yesterday and today the Court issued good decisions on both.

On Monday, in the wake of Masterpiece, the justices took three quick steps in Barronelle’s case.  First, they agreed to take the case or grant cert, second, they vacated the decision of the Washington Supreme Court in its entirety, and finally, they remanded the case back to the state Supreme Court to be retried.

As Kellie Fiedorek from the Alliance Defending Freedom states,

[T]he WA Supreme Court will have to take up all of our claims and examine them again in light of Masterpiece.  Thankfully, the Supreme Court did not reject a single one of our arguments, even though it ultimately didn’t rule on all of them.  So [the] WA Supreme Court will be looking at whether Barronelle’s free speech rights and free exercise rights have been infringed.  Whether the government treated Barronelle’s beliefs with hostility will be just one part of their analysis.

We look forward to Standing with Barronelle again as she has a new day in court!  And we are thankful for our allies at ADF for their outstanding work on behalf of Barronelle and by extension all people of faith in Washington.

The second decision, NIFLA, came down this morning.  At issue was whether the state (California) could compel life-affirming Pregnancy Resource Centers to either 1. Advertise for Abortion or 2. Be required to place onerous disclaimers on all their advertising.  You may recall that King County passed a similar regulation just last year.  Further, the Washington State legislature has in the past tried to pass legislation similar to California’s and could have been expected to attempt to do so again in January if the balance-of-power does not change in the November elections.

However, the US Supreme Court thinks differently and ordered the 9th Circuit Court of Appeals to take up the case saying the case is likely to succeed on its merits.  The court ruled that NIFLA is likely to win its claim that the government cannot compel pro-life groups and individuals to express a message that conflicts with their beliefs.

As the Alliance Defending Freedom’s CEO and Chief Counsel Michael Farris stated,

No one should be forced by the government to express a message that violates their convictions, especially on deeply divisive subjects such as abortion. In this case, the government used its power to force pro-life pregnancy centers to provide free advertising for abortion. The Supreme Court said that the government can’t do that, and that it must respect pro-life beliefs. Tolerance and respect for good-faith differences of opinion are essential in a diverse society like ours. They enable us to coexist peacefully with one another. If we want to have freedom for ourselves, we have to extend it to others.

In his concurrence, Justice Kennedy wrote a compelling paragraph.

And the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs. The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” App. 38–39. But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. [Emphasis Added] Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.

It has indeed been a good Supreme Court session for freedom of speech and the free exercise of religion.  Nonetheless, we must remain vigilant and be ready to Stand with Barronelle and follow the NIFLA case as it returns to the 9th Circuit Court of Appeals.  Follow us on Facebook and Twitter, as well as right here,  to stay up to date on all these developments.

We Don’t Give Up Our Inalienable Rights When We Go Into Business

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Surprisingly – or maybe not – the decision made by the Washington State Supreme Court regarding Arlene’s Flowers last month went widely unreported. Although the Court’s decision was upsetting to religious liberty supporters, the outcome was already expected by most when the Attorney General’s crusade against Barronelle Stutzman was first made public. Washington State has been overstepping its legitimate jurisdiction for years now, and many pro-family advocates already understand that we are fighting an uphill battle. What is amazing, though, isn’t the decision itself, but the arguments I saw on social media in favor of the Court’s decision.

I came across some interesting things when reading through an online comment thread this morning. First, people don’t seem to understand the difference between a privately owned business and a publicly owned business. Their argument falsely assumes that a business operated out of the privacy of a home on a referral basis would have the right to deny service; however, should the entrepreneur choose to open a shop open to the public, the owner’s rights must be jettisoned. But in reality, operating a business that is open to the public does not mean it is a “publicly owned business” or that the business owner’s rights should be subjected to the demands of the mob.

There are several different types of business structures. Sole proprietorship is the most common and refers to a business that is owned (and typically operated) by one person. This person usually sinks everything they own into their business. A proprietor is legally and financially responsible for their business; if, for example, a business is sued, the proprietor’s assets will be used to pay the damages. Another business arrangement is a partnership, in which two or more people enter into a business agreement and still retain full liability. Limited liability companies (LLCs) are structured similarly to a partnership, but such an arrangement provides some protection to the owners against accidents or lawsuits. There are also corporations which act as a separate entity from their owner(s) entirely. All of these businesses are private. The owners retain their rights. A person does not relinquish their fundamental, inalienable, constitutionally-protected rights when he or she enters into business.

The individual then tried to argue that refusing services based on politics is acceptable while refusing business based on conscience is somehow abhorrent. To someone looking at it from an objective, logical standpoint, this assertion makes little sense. Why is discrimination motivated out of political beliefs allowed when discrimination rooted in religious beliefs is not acceptable? If you’re going to decry religious discrimination, then you cannot reasonably support political discrimination.

Perhaps the most erroneous argument I heard on this thread was the claim that there are protected classes of citizens. These protected classes are groups of people who, because of various claims of racism, bigotry, sexism, and homophobia, claim to need additional protections under the law. This does a serious disservice to the LGBTQ community by essentially making them second-class citizens. One commentator refers to this as “the soft bigotry of low expectations,” meaning that some feel these groups need additional protections not afforded to other groups of people because the marginalized groups are helpless without those protections. The progressive Left uses these tactics to create dependence, exacerbating these issues to assemble a larger voting block which allows them to remain in office (and receive a substantial paycheck). In return, they promise to fight for societal validation and respect for those groups. In his dissent over the same-sex marriage decision, Justice Thomas said, “The government cannot bestow dignity, and it cannot take it away.”

Conservatives fight against these special protections because no one’s rights should be placed above those of another. It is man’s nature to have dissenting opinions. Everyone will never agree on everything, and it is not possible to have a society where no one’s feelings are hurt. But thankfully, we do live in a society where everyone is afforded the same rights under the law. Because government cannot protect the feelings of some without violating the rights of others, its role is to protect everyone’s religious liberty, conscience rights, and freedom of speech and association, even for those who the majority finds distasteful or offensive. Perhaps Thomas Jefferson put it best when he said, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”

 

Kyli Erickson is a guest contributor to the FPIW Blog.

Quick Take on Washington State’s Judicial Races and Ballot Measures

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With ballots hitting mailboxes beginning today, Washingtonians are choosing how to vote on a wide variety of ballot items. Here’s some information on some of the lesser-known items on your ballot.

Judicial Races

Three of the Washington Supreme Court’s nine justices are up for re-election. The court, thought by many to be one of the most progressive and liberal supreme courts in the United States, has handed down some very unpopular decisions in recent years. You can read more about those decisions here.

Chief Justice Barbara Madsen (website) joined the court in 1992 as the first woman to be popularly elected to the Court in Washington state history. She was re-elected in 1998, 2004, and 2010, and has presided over the court as Chief Justice since 2010. Madsen is being challenged by Kittitas County Prosecutor Greg Zempel (website), who has served in that role for 22 years.

Justice Charles Wiggins (website) was first elected to the Washington Supreme Court in 2010. Judge David Larson (website), who serves as the presiding Judge at the Federal Way Municipal Court, is challenging him for the seat.

Justice Mary Yu (website) has served since being appointed to the Supreme Court since 2014, after 14 years as a King County trial court judge. She is the first lesbian to serve on the Supreme Court, and is being challenged by David DeWolf (website), a retired constitutional law professor from Gonzaga.

Challengers Zempel, Larson, and DeWolf are being supported by right-of-center interests in an effort to bring more balance to the Supreme Court.

There are also dozens of lower court races of interest around the state as well, such as the race between Judge Alex Ekstrom – the judge who ruled against Barronelle Stutzman – and his challenger, Alicia Berry, a lawyer who represented Mrs. Stutzman in that case. Please consult the voter guide from the Secretary of State’s office to learn more about candidates in those local races.

Ballot Measures

Initiative No. 1433 concerns labor standards:

  • This measure would increase the state minimum wage to $11.00 in 2017, $11.50 in 2018, $12.00 in 2019, and $13.50 in 2020, require employers to provide paid sick leave, and adopt related laws.

Initiative No. 1464 concerns campaign finance laws and lobbyists:

  • This measure would create a campaign-finance system; allow residents to direct state funds to candidates; repeal the non-resident sales-tax exemption; restrict lobbying employment by certain former public employees; and add enforcement requirements.

Initiative No. 1491 concerns court-issued extreme risk protection orders temporarily preventing access to firearms:

  • This measure would allow police, family, or household members to obtain court orders temporarily preventing firearms access by persons exhibiting mental illness, violent or other behavior indicating they may harm themselves or others.

Initiative No. 1501 concerns seniors and vulnerable individuals:

  • This measure would increase the penalties for criminal identity theft and civil consumer fraud targeted at seniors or vulnerable individuals; and exempt certain information of vulnerable individuals and in-home caregivers from public disclosure.

Initiative No. 732 concerns taxes:

  • This measure would impose a carbon emission tax on certain fossil fuels and fossil-fuel-generated electricity, reduce the sales tax by one percentage point and increase a low-income exemption, and reduce certain manufacturing taxes.

Initiative No. 735 concerns a proposed amendment to the federal constitution:

  • This measure would urge the Washington state congressional delegation to propose a federal constitutional amendment that constitutional rights belong only to individuals, not corporations, and constitutionally-protected free speech excludes the spending of money.

Barronelle Stutzman Hearing, Rally Scheduled for November 15

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Barronelle Stutzman, the 72-year old floral artist and grandmother being sued by Washington Attorney General Bob Ferguson and the ACLU for exercising her constitutionally protected freedom to act consistent with her faith, will be in Court on Tuesday, November 15th as the Washington Supreme Court hears oral arguments.

Stutzman served her longtime friend and customer – and his partner – for nearly 10 years, but could not participate in and design floral arrangements for his same-sex ceremony because of her love of Jesus and his teachings about marriage. Barronelle faces losing everything she owns for acting consistent with her deeply held convictions.

The arguments begin at 9:00 am, but we will begin gathering at the Carlson Theatre at Bellevue College at 7:30 am. We recommend arriving early to get in line to ensure a seat. Some of us will remain outside for a peaceful prayer gathering during oral arguments. We will provide signs and refreshments. A debrief will take place after the arguments conclude with Barronelle (location TBD). Please bring your family and friends and join us in supporting Barronelle!

The Carlson Theatre is located at, 3000 Landerholm Circle SE, Bellevue, WA, 98007-6406.  You can let us know that you plan to attend by RSVPing to the rally Facebook event.

Judge That Ruled Against Stutzman to Face Electoral Challenge from Stutzman Lawyer

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An attorney who formerly represented Barronelle Stutzman and Arlene’s Flowers has announced that she’s running for Superior Court Judge in Position 3, a seat currently held by Judge Alexander Ekstrom.

In 2013, Washington State Attorney General Bob Ferguson sued Stutzman for alleged discrimination when she declined to prepare flowers for a longtime customer’s gay wedding.  The suit was filed with the Washington Superior Court in District Benton and Franklin counties.

The judge presiding over this case was none other than Judge Alexander Ekstrom, who ruled against Stutzman and in favor of the the Government on summary judgement. Stutzman has appealed and the Washington State Supreme Court has agreed to take up the case.  Stutzman was sued her her personal and professional capacity and faces significant financial penalties shoudl she lose.

Attorney Alicia Berry, a principal partner at the Liebler, Connor, Berry & St. Hilaire Legal Firm, says people have lost trust in the judicial system.  “This loss of trust in a fundamental government system designed to protect the people from oppressive government oversight and regulation needs to be addressed,” she says on her campaign website.

Her opponent, incumbent judge Alexander Ekstrom, was appointed to the seat in 2014 by Governor Jay Inslee. “Religious motivation does not excuse compliance with the law,” he said, in his 60-page opinion ruling against Stutzman.

Kennewick Debates Religious Freedom, Attorney General Misrepresents It

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Last night, the Kennewick City Council discussed a non-binding resolution involving religious freedom in front of a standing room only crowd.  The resolution, sponsored by Kennewick City Councilman John Trumbo, calls on Attorney General Bob Ferguson to drop his lawsuit against Arlene’s Flowers and asks the legislature to protect conscience rights and religious freedom.

A similar resolution has also been introduced in the Pasco city Council by Councilman Bob Hoffman.

In advance of that committee meeting, Attorney General Bob Ferguson sent a letter to Mr. Trumbo and Mr. Hoffman that was published in the Tri-City Herald. 

That letter, the full text of which can be seen below, contains a number of statements that deserve a response. (larger light green text is excerpts from the letter)

[Barronelle Stutzman and her attorneys]  claim that Arlene’s Flowers should be allowed to serve those customers whom Ms. Stutzman’s religion approves of, and exclude those whom it does not.

It is hard to view this statement as anything other than willful dishonesty.  The Attorney General’s office has been litigating against Barronelle Stutzman for more than two years now.  In those two years, Barronelle Stutzman has repeatedly stated in depositions, in legal briefs, and in oral arguments that she was and is happy to serve people who identify as gay.  She has never denied service to someone because of their sexual orientation and she never will. She will sell flowers to gay people and even for gay weddings.  Her only objection is to providing floral services for a same-sex wedding, which would require her to be a personal participant in the wedding.

As the Supreme Court has long recognized, religious freedom is not the freedom to discriminate against others in the name of religion.

The Supreme Court has never taken this issue up.  Efforts by government to force people to be part of events they disagree with are very new because historically we have respected the rights of individuals not to be part of events they were uncomfortable with.  The New Mexico Supreme Court said that a photographer could be forced to take pictures of a same-sex wedding, but a Kentucky Court recently acknowledged that a printer has the right to decline to print t-shirts for a gay pride parade because he disagrees with that message.  This issue is far from settled, in fact it is just getting started.

Rather, [religious freedom] is the right to the freedom of worship, and to be free from discrimination because of our religion.

The First Amendment protects the “free exercise” of religion.  The version of the First Amendment which protects only the right to believe what you want and attend the church of your choice exists only in the minds of those who seek to control us, not in the Constitution.

If I go to a restaurant with my young twins to celebrate their First Communion, I should not have to worry about whether the restaurant will refuse to serve me because we are Catholic.

Of course everyone agrees with this.  However, if Mr. Ferguson and his young twins wanted the restaurant owner to cater their exorcism,  an atheist business owner should  have the right to decline to participate without fear of being sued for discrimination on the basis of religion.  After all, it is not the person requesting the service they object to, but the nature of the service requested.

Arlene’s Flowers refused to serve Mr. Freed and Mr. Ingersoll because they are gay.

As discussed above, this also is not true.  Arlene’s Flowers served Mr. Freed and Mr. Ingersoll for nine years knowing they were gay.  Arlene’s Flowers stands ready to serve them again. Arlene’s Flowers serves everyone, regardless of their sexual orientation.  But there are some events they are uncomfortable being part of.

Washington State law says that if a business chooses to provide a service to heterosexual customers it must provide that service to gay and lesbian customers.

Washington State law says no such thing.  It says only that you cannot discriminate on the basis of race, religions, gender, veteran status, sexual orientation, etc… Non-discrimination laws were created to make sure that businesses did not have explicit policies stating “No Jews”, “No Mexicans”, “No Mormons” or anything of the kind.  By happily and graciously serving everyone, Arlene’s Flowers abides by both the letter and the spirit of the law.

The Attorney General’s interpretation of the law means that the wedding industry is now off-limits to those who believe marriage is a relationship between a man and a woman.  America was created specifically in response to the environment in Europe where people had to hold a certain set of beliefs in order to have equal access to economic opportunity.

We must resist the attempts to impose a new state religion built around a specifically belief about sexuality.

The Kennewick City Council agreed to take this issue up at a future meeting.

As a result, this debate will continue in Kennewick and around the country.  It will continue because it is fundamental to who we are as a nation.  Will individuals enjoy the right of association and the free exercise of religion in the way we always have? Will we surrender those rights to a government desiring to control us in the name of tolerance?

The weakness of the Attorney General’s position is exposed by his need to repeatedly misrepresent Arlene’s Flowers position. If you have strong arguments, the truth is your friend.

Still, the outcome of this debate will not be determined by who has the greatest argument, but who has the strongest resolve.

To share your thoughts with Attorney General Ferguson about this letter or his lawsuit against Arlene’s Flowers, Call his office at 360-753-6200. Be respectful, but be heard.

Contact your legislators and ask them to protect conscience rights and religious freedom. You can email your legislators here or call the legislative hotline at 1-800-562-6000.

 

Below is the full letter from Attorney General Ferguson. Click on the images to enlarge.

AG Letter 1AG Letter 2

City Councilman Explains Why He’s Standing up for Arlene’s Flowers

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This post was written by Pasco Councilman Robert Hoffman. Hoffman has introduced a resolution in support of religious freedom and opposition to the lawsuit brought by Attorney General Bob Ferguson against Arlene’s Flowers. His editorial was published in the Tri-Cities Herald on August 1, 2015.
From my perspective on the city council, here are some observations relating to points raised in the July 14 editorial, “Supporting Arlene’s goes beyond city duties.” It said that Pasco’s Resolution that I proposed is not something to take on the Washington Attorney General about because it is divisive, distracting and goes beyond council duties; this is a national debate, cities should leave well enough alone.

The Sunday, July 19 Tri-City Herald front page article cited a poll finding that 59% of people surveyed think wedding-related businesses should be allowed to refuse service to same-sex couples. Arlene’s Flowers has wide popular support in eastern Washington and the Tri Cities. These are some of the people I represent whose voice should not be ignored while her case is being heard in our courts.

True enough, the case is not about infrastructure, budgets, and zoning changes. Not all council decisions are. And some are contentious. In Pasco we have debated allowing a wet T-shirt contest at the boat races (declined), artwork in city hall, and the Liberty theater, adult bookstore, and prostitution in the downtown back in the 80’s. More recently, Planned Parenthood, pit bulls, fluoride, marijuana ,and e-cigarettes have had a place on the agenda. Other city councils have considered ordinances to set a minimum wage, provide clean needles to drug users, or prohibit gambling. Under the mayor’s leadership and with help from city staff, the Pasco City Council has worked through these various issues, reached a decision, and moved on.

The issue is national, but with a distinct local application. Arlene’s Flowers had a store in Pasco, and the owner had many years involvement with the city. The lawsuit by the state and ACLU had its origins in the Tri Cities.

We can’t just leave well enough alone because we now have faith based businesses in our communities at risk of prosecution if they exercise their freedom. If they follow their conscience and decline wedding-related business activities, the community is the loser because there will be less competition, and higher prices. Historically, people of faith have been good business leaders who understand how to manage risk, capital, and customer desires in the marketplace.

Is the best approach to appeal to the Attorney General? Maybe not. A better way may be towards the legislature to apply the State Constitution Article I, Section 11 on absolute freedom of conscience, into the RCW.

As a council member in Pasco, I have advocated for businesses in Pasco, sometimes to the frustration of council and staff. It’s my duty come along side people caught in the wheels of government, even those with issues some think are outside the box.

LGBT Community Defends Arlene’s Flowers

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Earlier this week, the owner of Arlene’s Flowers, Barronelle Stutzman, appeared on the Kelly File to discuss the lawsuit brought against her by Washington State’s Attorney General, Bob Ferguson, when she declined to decorate for a same-sex ceremony.

She has recently declined the Attorney General’s settlement offer that would have ended the litigation if she agreed to pay a $2,001 fine and agree to surrender the right to make business decisions consistent with her beliefs.

What might be surprising is the amount of support for Mrs. Stutzman from the gay community on the on the Kelly File Facebook page discussing this case.  Here is just a sample of the comments.

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The political leadership of the LGBT movement wants to convince the world that the debate over conscience rights and religious freedom is a debate between those who hate gay people and those who don’t.

In reality, its a debate between those who hate freedom and those who don’t.

Broken Promises on Religious Freedom

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Back in 2012, when the Washington State legislature was debating a same-sex marriage law, supporters assured the public at every opportunity that there was absolutely, positively, promise to God, cross my heart and hope to die, no risk to religious freedom.

Senator Marko Liias was in the House of Representatives at the time.  Here’s what he said about the impact of religious freedom on same-sex marriage.

In light of these unambiguous comments, Marko Liias should be sponsoring legislation to protect businesses like Arlene’s Flowers from the lawsuits he promised us would never happen.  Contact Sen. Liias and the rest of your state legislators and urge them to do what they said they were going to do in the first place…protect conscience rights and religious freedom.  You can call them through the legislative hotline number at 1-800-562-6000 or email them here. 

Arlene’s Flowers Response to Attorney General’s Settlement Offer

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After a ruling this week that Arlene’s Flowers violated the law by declining to decorate for a same-sex ceremony, Washington’s Attorney General, Bob Ferguson, who initiated the legal action against the grandmother and small business owner, offered a settlement of $2,001 if she would agree no longer do any weddings and not to appeal the ruling.

Below is the response to the offer from Mrs. Stutzman:

Picture1ARLENE’S FLOWERS
1177 Lee Blvd.
Richland, WA 99352

February 20, 2015

 

 

Attorney General Bob Ferguson
1125 Washington St. SE
P.O. Box 40100
Olympia, WA 98504

 

Re: State of Washington v. Arlene’s Flowers and Barronelle Stutzman

 

Dear Mr. Ferguson,

Thank you for reaching out and making an offer to settle your case against me.

As you may imagine, it has been mentally and emotionally exhausting to be at the center of this controversy for nearly two years.  I never imagined that using my God-given talents and abilities, and doing what I love to do for over three decades, would become illegal. Our state would be a better place if we respected each other’s differences, and our leaders protected the freedom to have those differences. Since 2012, same-sex couples all over the state have been free to act on their beliefs about marriage, but because I follow the Bible’s teaching that marriage is the union of one man and one woman, I am no longer free to act on my beliefs.

Your offer reveals that you don’t really understand me or what this conflict is all about. It’s about freedom, not money. I certainly don’t relish the idea of losing my business, my home, and everything else that your lawsuit threatens to take from my family, but my freedom to honor God in doing what I do best is more important. Washington’s constitution guarantees us “freedom of conscience in all matters of religious sentiment.” I cannot sell that precious freedom. You are asking me to walk in the way of a well-known betrayer, one who sold something of infinite worth for 30 pieces of silver.  That is something I will not do.

I pray that you reconsider your position. I kindly served Rob for nearly a decade and would gladly continue to do so. I truly want the best for my friend. I’ve also employed and served many members of the LGBT community, and I will continue to do so regardless of what happens with this case. You chose to attack my faith and pursue this not simply as a matter of law, but to threaten my very means of working, eating, and having a home. If you are serious about clarifying the law, then I urge you to drop your claims against my home, business, and other assets and pursue the legal claims through the appeal process. Thanks again for writing and I hope you will consider my offer.

 

Sincerely,

Barronelle Stutzman

 

 

To share your thoughts with the Attorney General on his lawsuit and the settlement offer, call his office at 360-753-6200 or contact him here.*

Honor Mrs. Stutzman by being respectful, but please be heard.