Proponents of religious liberty are celebrating the Supreme Court’s recent decision to hear Fulton v. City of Philadelphia. That case gives the court the opportunity to affirm the commonsense right of religious nonprofits, like Catholic Social Services, to act in accordance with their religious beliefs when placing children in foster homes. In a country founded on principles of religious freedom, Catholic Social Services should be headed for a decisive win.
But when it comes to protecting religious liberty, the Supreme Court shouldn’t stop at Fulton. The time has come to take up the case of a Washington florist who has been persecuted by the state because she refused to use her expressive and artistic talents to create a message supporting a same-sex wedding that contravenes her sincere religious beliefs.
Why all the drama about Catholic foster services and religious florists? It goes back to a promise the Supreme Court made in the landmark 2015 decision in Obergefell v. Hodges. That case famously found in the Constitution a right to same-sex marriage. But what’s often overlooked is the court’s insistence in that decision that people of faith who disagree with same-sex marriage could live by their faith without interference.
Barronelle Stutzman took the court at its word. She’s the floral design artist at the center of Arlene’s Flowers v. Washington. Her sincere religious views lead her to oppose same-sex marriage — and Obergefell says that’s her right. Yet when she refused to put her expressive, artistic work to the cause of promoting a same-sex ceremony that contravened her faith, the State of Washington punished her with severe sanctions that threaten her livelihood. She defended herself in the Washington state courts and lost. Now she’s asking for the Supreme Court to uphold its promise.
Barronelle’s case merits review no matter what the court does in the Fulton case. In Fulton, Catholic Social Services is asking the Supreme Court to affirm that cities cannot expel Catholic Social Services from the state’s foster care program simply because the church adheres to religious views that Philadelphia disfavors.
Arlene’s Flowers presents a different problem — but one no less serious. Our country is home to a broad array of views and beliefs. If states can stamp out any disagreement over same-sex marriage – that is, if they can destroy any business whose proprietor dares to live by her religious views – then the Constitution’s promise of free speech and the free exercise of religion are empty.
The court has already chastised a state for insufficiently respecting the religious rights of artists. Two years ago, in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court sided with cake artist Jack Phillips after Colorado persecuted him for declining to prepare a cake celebrating a same-sex wedding. But the ink on Jack’s Supreme Court victory was barely dry before Colorado went after him again, prosecuting him for declining to create a custom cake that would celebrate sex reassignment surgery. Jack is now defending himself in a third action, one brought by the customer who requested that cake.
States simply aren’t getting the message. Jack’s and Barronelle’s cases show that ruling for Catholic Social Services in the Fulton case isn’t enough. It’s time for the court to declare unequivocally that Washington cannot persecute Barronelle.
If the court sits on the sidelines, state and local officials will continue to drag people of faith like Barronelle and Jack through the courts. A favorable and much-needed opinion regarding faith-based adoption providers is unlikely to deter these attacks. A decision vindicating the rights of creative professionals and other religiously minded small business owners will.
The Supreme Court should take up Arlene’s Flowers now and stop activist government bureaucrats from stripping devout Muslims, Jews and Christians of their livelihoods. Postponing Arlene’s Flowers means that people like Barronelle – who epitomize how Americans with differing marriage beliefs can coexist – will continue to be maligned in their businesses and communities.
Kyle Hawkins is the solicitor general of Texas. He is counsel on two friend-of-the-court briefs filed by Texas Attorney General Ken Paxton in Fulton v. Philadelphia and Arlene’s Flowers v. Washington.