The Right to Discriminate Is a Basic Property Right
Back in 2013, Barronelle Stutzman, the owner of Arlene’s Flowers in Richland, Washington, refused to provide flowers for a gay friend’s same-sex wedding. The legal battle that ensued has now ended: The Washington State Supreme Court just unanimously ruled that the florist violated the state’s anti-discrimination law.
The case has given rise to some misconceptions about discrimination.
Here is the back story.
In 2012, the state of Washington enacted Senate Bill 6239, which recognized same-sex marriage. Gay men Robert Ingersoll and Curt Freed, who had been a couple since 2004, decided to get married in September of 2013. At the time of his engagement, Ingersoll had been a customer of Arlene’s Flowers and Gifts for at least nine years. Stutzman, an active member of a Southern Baptist church who believed that marriage can exist only between a man and a woman, knew that Ingersoll was gay and in a relationship with Freed. When Ingersoll spoke with Stutzman about providing flowers for his wedding, she told him that she would be unable to do so because of her religious beliefs. She gave Ingersoll the names of other florists who might be willing to serve him and hugged Ingersoll before he left the store.
Stutzman said she “draws a distinction between creating floral arrangements — even those designed by someone else — and selling bulk flowers and ‘raw materials,’ which she would be happy to do for Ingersoll and Freed.” But she said she believes that “to create floral arrangements is to use her ‘imagination and artistic skill to intimately participate in a same-sex wedding ceremony.’”
Ingersoll maintains that he left “feeling very hurt and upset emotionally.” His partner Freed posted something on Facebook about the incident and the story “drew the attention of numerous media outlets.” Ingersoll and Freed then “lost enthusiasm for a large ceremony” and got married in July in “a modest ceremony at their home.”
That, of course, should have been the end of it. But
after the state became aware of Stutzman’s refusal to sell flowers to Ingersoll and Freed, the Attorney General’s Office sent Stutzman a letter. It sought her agreement to stop discriminating against customers on the basis of their sexual orientation and noted that doing so would prevent further formal action or costs against her. The letter asked her to sign an “Assurance of Discontinuance,” which stated that she would no longer discriminate in the provision of wedding floral services.
The state then filed a complaint about injunctive and other relief against both Stutzman and Arlene’s Flowers under the Consumer Protection Act (CPA) and the Washington Law Against Discrimination (WLAD). Stutzman answered by “asserting, among other defenses, that her refusal to furnish Ingersoll with wedding services was protected by the state and federal constitutions’ free exercise, free speech, and freedom of association guarantees.” Ingersoll and Freed then filed a private lawsuit against Stutzman and Arlene’s Flowers, which the trial court consolidated with the state’s case.
The trial court ultimately decided against the defendant and awarded “permanent injunctive relief, as well as monetary damages for Ingersoll and Freed to cover actual damages, attorneys’ fees, and costs.” The court ruled not only that Stutzman violated the WLAD’s “public accommodations” provision, violated the CPA by refusing to sell floral services, and was personally liable, but also made five constitutional rulings. It concluded that the application of the WLAD’s “public accommodations” provision to Stutzman in this case:
(1) did not violate Stutzman’s right to free speech under the First Amendment to the United States Constitution or article I, section 5 of the Washington Constitution,
(2) did not violate Stutzman’s right to religious free exercise under the First Amendment,
(3) did not violate her right to free association under the First Amendment,
(4) did not violate First Amendment protections under the hybrid rights doctrine, and
(5) did not violate Stutzman’s right to religious free exercise under article I, section 11 of the Washington Constitution.
Stutzman appealed to the Washington State Supreme Court, which affirmed the trial court’s rulings last month.
There are a number of misconceptions that people have about discrimination, including Barronelle Stutzman, the attorneys who represented her, and the state’s attorney general.
Stutzman contended that her floral arrangements were “artistic expressions protected by the state and federal constitutions and that the WLAD impermissibly compels her to speak in favor of same-sex marriage.” She contended that her floral arrangements are “speech” for purposes of First Amendment protections “because they involve her artistic decisions.” She argued that the WLAD violated her First Amendment protections against “compelled speech” because it “forces her to endorse same-sex marriage.” She sought “an exemption permitting discrimination in public accommodations.” She argued, “discrimination cannot be ‘invidious’—and thus subject to governmental prohibition—if it is based on religious beliefs.”
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The Alliance Defending Freedom (ADF) attorneys who represented Stutzman argued: “It’s wrong for the state to force any citizen to support a particular view about marriage or anything else against their will. Freedom of speech and religion aren’t subject to the whim of a majority; they are constitutional guarantees.”
Washington’s attorney general, Bob Ferguson, said that “Arlene’s Flowers in Richland doesn’t have to sell wedding flowers at all.” However, “if they choose to sell wedding flowers, they cannot choose to sell wedding flowers only for heterosexual couples and deny that same service to gay couples.”
We Don't Need a Special Right to Speech when We Have Property Rights
Let’s clear up these and other misconceptions about discrimination from the libertarian perspectives of property rights, the non-aggression principle, and individual liberty.
Designing, making, selling, or not selling floral arrangements has nothing to do with free speech or speech. The U.S. Supreme Court has greatly erred by labeling certain actions as a form of speech in order to protect them instead of just recognizing property rights.
Refusing to sell a product has everything to do with property rights. Since no potential customer has a claim on the property of any business owner, he has no legal recourse if the owner of the property refuses to sell it to him.
Selling someone a product has nothing to do with endorsing the buyer’s opinions or use of the product.
Discrimination is a crime in search of a victim. Every real crime needs a tangible victim with measurable damages. Discrimination is not aggression, force, or threat. It should never be a crime.
To outlaw discrimination is to outlaw freedom of thought.
Public accommodations are still private businesses. Just because they serve the public by offering to sell them goods and/or services doesn’t mean that they should be regarded as public libraries, public parks, and public buildings that have to accept all members of the public.
If discrimination is wrong, immoral, unjust, hateful, and bigoted, then it doesn’t suddenly cease to be these things because the entity doing the discriminating is religious in nature or the person doing the discriminating is doing it for religious reasons.
There is no “right to service.” In a free society, business owners have the right to refuse service to anyone for any reason on any basis.
If a florist can choose not to sell a particular type of flower arrangement, then why can’t it choose not to sell a flower arrangement to a particular person? If the government is so interested in stamping out discrimination, they why doesn’t it mandate that florists sell every type of flower arrangement for every situation? Aren’t florists who don’t sell flower arrangements for weddings discriminating against customers who want to buy them and suppliers who want to provide the necessary raw products to the florists?
If an individual can discriminate against a business owner in any way, for any reason, and on any basis, then why can’t a business owner likewise discriminate against an individual?
That discrimination may be based on based on stereotypes, prejudice, hate, sexism, xenophobism, homophobism, bigotry, or racism is immaterial.
That discrimination may be because of race, creed, religion, sex, color, age, national origin, political ideology, IQ, physical appearance, marital status, socio-economic status, disability, gender identity or sexual orientation is irrelevant.
That someone thinks an act of discrimination is unfair, illogical, irrational, nonsensical, unreasonable, or just plain stupid is of no consequence.
Barronelle Stutzman should be able to choose to whom she will sell flowers or floral arrangements. Discrimination is the exercise of freedom.