A Richland, Washington, florist is digging in for a legal fight she’s likely to lose. Meanwhile Seattle’s new police chief has imposed restrictions on what the department’s employees can post on social media, and the usually combative leader of the police union is counseling his members to obey the new rules, because he understands they’re likely to pass legal muster.
Some people may see this as government wins, citizens lose, but it’s not that simple.
In the United States, people can believe whatever they want to, and can mostly say what they want to, but can’t necessarily do whatever they want to. The law makes distinctions between believing, saying, and doing. It’s based on a concept that even people without legal training should be able to understand: Thinking, saying, and doing aren’t the same.
The ACLU is the major private organization that defends free speech in America. They don’t make political distinctions; they’ve defended the free speech rights of communists, Nazis, and the KKK. The ACLU’s position — and the correct interpretation of the First Amendment — is that you have a right to be a racist asshole and espouse your offensive views. But the courts have made clear that, notwithstanding these personal rights, the state has a right to prohibit discriminatory behavior toward others, and the courts have enforced those rights.
A Benton County Superior Court judge has already ruled against her, but Baronelle Stutzman, 70, owner of Arlene’s Flowers in Richland, Washington, has rejected a lenient legal settlement offer from the state and appears determined to fight for her “right” to refuse service to gay couples “because I follow the Bible’s teaching that marriage is the union of one man and one woman.” She’s breaking Washington law, and was sued by both the state and a gay couple she refused to sell flowers to.
Bob Ferguson, Washington’s attorney general, doesn’t want to put Stutzman out of business. He only wants her to stop her discriminatory business practices. He offered to let her pay a $2,000 fine and $1 for the state’s legal expenses if she agreed to comply with Washington’s anti-discrimination law. Yesterday, she refused, rejecting Ferguson’s settlement and indicating she will appeal the judge’s ruling. To win, she’ll likely have to go all the way to the U.S.Supreme Court and overturn existing legal precedents there.
That appears to be her intent (which I discuss further below), no doubt spurred on by the recent Hobby Lobby decision by a conservative-majority court that seems sympathetic to people who want to practice their religious beliefs without government interference. The high court’s logic probably has limits, though, because these cases involve behavior of one person that affects another person, and followed to its end this logic would allow lynchings and murder, because racial violence is merely bigots acting on their beliefs.
In Seattle, Ron Smith, the Seattle Police Officers’ Guild president, “warned his members earlier this month they might be subject to discipline for what they post on social media,” according to the Seattle Times. “Your First Amendment rights as an American is curtailed when your speech intersects with your job as a public employee,” he wrote in a memo to members. “You can read the United States Supreme Court case Garcetti V. Ceballos for further clarification of the limitations of your First Amendment rights as it pertains to your employment as a police officer.”
He was responding to a new policy developed by Seattle Police Chief Kathleen O’Toole, with assistance of attorneys from the city attorney’s office, who explained the new policy to her employees by saying, “The Seattle Police Department is working tirelessly to rebuild community trust and restore pride in our organization. It’s unfortunate that behavior on social media by a few has contributed to the erosion of our collective efforts.” She was specifically referring to two Seattle cops currently on suspension after posting racially inflammatory remarks on social media.
The Seattle Times article points out that, “As far back as 1892, the famous jurist Oliver Wendell Holmes Jr. wrote in an opinion for the Massachusetts Supreme Judicial Court that a police officer ‘may have a constitutional right to talk politics, but he has no constitutional right to be a policeman,'” which, again, highlights the differences between thoughts, speech, and behavior. A police officer is employed by the state, exercises the power of the state, and does so on behalf of the state. It is both necessary and proper that, as Smith told the Times in an interview Friday, police officers “check our political agenda at the door.”
“Moreover, he said, Seattle officers signed up to work in a diverse city, where people off all backgrounds should be treated equally. Those that don’t like the politics of the city or its officials may work elsewhere, Smith said,” the Times reported. Smith appears to get it.
A business owner like Stutzman is in a different position than a cop entrusted with power to arrest citizens and use force. Unlike a public agency, which must serve all citizens equally, a private business generally speaking can pick and choose its customers, subject to only a few government-imposed limitations. One of these intrusions is laws forbidding certain kinds of discrimination, which usually are upheld by courts.
Now, how much government can intrude upon private citizens’ right to not only think and speak but also practice their religious beliefs is before the nation’s highest court. Stutzman wants to be a player in this high-stakes game. She’s represented by an attorney from Arizona-based Alliance Defending Freedom, an ACLU-like group with deep roots in the conservative Christian fundamentalist movement. Its founders include well-known figures like Bill Bright of Campus Crusade for Christ, James Dobson of Focus on the Family, and several other religious activists.
In the abstract, these individual-rights issues are very complicated cases, which is why they have to be resolved at the top level of the judicial system. But when you get down to specifics — the conservative Christian community wants not only the right to believe that homosexuality is a morally wrong freely chosen behavior, not a biological predisposition created by nature, but also the right to actively discriminate against gays in private business — and it’s very clear they would implant this discriminatory behavior into government, too, if they had the power to do so. So, this issue really is about line-drawing.
Where does one draw the line? America, if it’s to remain a free country, must allow its citizens to dislike and even hate gays, and speak against gays, and shun gays in their private social lives, if they choose to do so. But government intervention in commerce goes back to the earliest founding of the colonies. The first laws in the first European settlements on this continent were weights-and-measures regulations: If you sold fish by the pound, you couldn’t cheat your customers by putting stones on the scale, or the law would put you in the stocks. Because such behavior is not only antisocial but harms others’ interests. You have a right to be a fish merchant, but your customer has a right not to be cheated.
In 21st century contemporary America, you have a right to be gay, if that’s what nature made you, and people like Stutzman have a right to disapprove of what you are but the law says they don’t have a right to discriminate against you. That, like putting stones on the scale, infringes on the rights of others and therefore the Constitution allows the state to forbid it.
There is no “balancing” to be done here; that balancing has already been done in allowing you to believe what you choose but forbidding you to harm me because of what I believe, say, or am. That is the proper formula for balancing individual freedom with others’ rights and maintaining social peace, because it works. In other words, you can be a racist and hate blacks, but you can’t lynch them or discriminate against them. If an exemption is carved out for socially conservative Christian fundamentalists in the name of religious freedom, then why should not such an exemption also be made for racial violence or discrimination based on individual liberty?
Justice Holmes is best known for his famous explanation of the distinction between accident and intention: “Even a dog knows the difference between being kicked and being stumbled over.” He also explained why cops give up some personal freedom of action when they choose to become cops: The Constitution guarantees their right to believe and say what they like, but there is no constitutional right to be a cop. The restrictions on a police officer’s freedom of personal thought, speech, and behavior are justifiably greater than those on a private flower seller, because of the tremendous power given to the police over citizens. But that doesn’t mean a flower seller should be free of any restrictions whatsoever. Anti-discrimination laws don’t regulate thought and essentially don’t regulate speech; they only constrain behavior that affects others.
There’s an old saying that goes, “Your freedom to swing your arm stops where my nose begins.” Seattle police chief O’Toole is right, and Seattle police union head Ron Smith understand she’s right; Stutzman is wrong, because she wants a right to engage in behavior that is hurtful to others. By telling her she can’t do that, our laws aren’t depriving her of any religious belief, or the right to worship as she chooses, they’re simply saying she doesn’t have a right to punch gays in the nose. How hard is that to understand?
Photo: Florist Baronelle Stutzman wants to throw gays out of her flower shop. The U.S. Supreme Court shouldn’t let her do that for same reason pagans shouldn’t be allowed to practice human or animal sacrifice in the name of their religion: Behavior is different from thoughts and speech, and government needs the power to regulate behavior that harms others.