PILON: Make the Bouquet… Or Else!

By Roger Pilon | February 21st, 2017 at 9:08 am

BY: Roger Pilon / VP for Legal affairs / Cato Institute

Roger Pilon is the founding director of Cato’s Center for Constitutional Studies, which has become an important force in the national debate over constitutional interpretation and judicial philosophy. He is also the founding publisher of the Cato Supreme Court Review and the inaugural holder of Cato’s B. Kenneth Simon Chair in Constitutional Studies.

Filed Under: Business, Civil Rights, Commentary, Culture, Ethics, Gay Rights, Liberty, Opinion, Principles of Freedom, Property rights, Social Justice

To see how little is left of one of our most important rights, the freedom of association, look no further than to today’s unanimous decision by the Washington State Supreme Court upholding a lower court’s ruling that florist Baronelle Stutzman was guilty of violating the Washington Law Against Discrimination (WLAD) when she declined, on religious grounds, to provide floral arrangements for one of her regular customer’s same-sex wedding. The lower court had found Stutzman personally liable and had awarded the plaintiffs permanent injunctive relief, actual monetary damages, attorneys’ fees, and costs.

This breathtaking part of the Supreme Court’s conclusion is worth quoting in full:

We also hold that the WLAD may be enforced against Stutzman because it does not infringe any constitutional protection. As applied in this case, the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman’s religious free exercise, the WLAD does not violate her right to religious free exercise under either the First Amendment or article I, section 11 because it is a neutral, generally applicable law that serves our state government’s compelling interest in eradicating discrimination in public accommodations.

We have here yet another striking example of how modern state statutory anti-discrimination law has come to trump a host of federal constitutional rights, including speech, association, and religious free exercise. It’s not too much to say that the Constitution’s Faustian accommodation of slavery is today consuming the Constitution itself.

Consider simply the freedom of association right. That liberty in a free society ensures the right of private parties to associate, as against third parties, and the right not to associate as well—that is, the right to discriminate for any reason, good or bad, or no reason at all. The exceptions at common law were for monopolies and common carriers. And if you held your business as “open to the public” you generally had to honor that, though you still could negotiate over services.

Slavery, of course, was a flat-out violation of freedom of association—indeed, it was the very essence of forced association. But Jim Crow was little better since it amounted to forced dis-association.  It was finally ended, legally, by the 1964 Civil Rights Act. But that Act prohibited not simply public but private discrimination as well in a range of contexts and on a range of grounds, both of which have expanded over the years. The prohibition of private discrimination may have been helpful in breaking the back of institutionalized racism in the South, but its legacy has brought us to today’s decision, where florists, bakers, caterers, and even religious organizations can be forced to participate in events that offend their religious beliefs.

Court’s haven’t yet compelled pastors to officiate at ceremonies that are inconsistent with their beliefs, but we have heard calls for eliminating the tax-exempt status of their institutions. Such is the wrath of the crowd that wants our every act to be circumscribed by law—their law, of course. And they’re prepared, as here, to force their association on unwilling parties even when there are plenty of other businesses anxious to serve them. As I concluded a Wall Street Journal piece on this subject a while ago:

No one enjoys the sting of discrimination or rejection. But neither does anyone like to be forced into uncomfortable situations, especially those that offend deeply held religious beliefs. In the end, who here is forcing whom? A society that cannot tolerate differing views—and respect the live-and-let-live principle—will not long be free.


A version of this article was first published by The Cato Institute.

Roger Pilon

This article was originally published on FEE.org. Read the original article.

  • carlcasino

    Well Stated. This is the heart of the problem in America today. We have a group whose ideology is the Constitution was a nice document that has outlived it’s usefulness and does not adapt for “Today’s Norm’s” and We the People need to move on and become more sophisticated like Europe. That train of thought literally floors me. History is an excellent Teacher if you use your TWO ears to listen twice as much as you Speak without reflecting on “Have we been down this road before?” Little plaque on my office wall- Don’t confuse my PERSONALITY with my ATTITUDE…My Personality is Who I Am–My Attitude depends on who you are! I firmly believe that when Governor Bradford attempted Socialism in 1625? he meant well and wanted everyone to prosper and do well. Human Nature kicked in and when some Pilgrims figured out they could benefit from the sweat of others the whole process collapsed. Our Founders were students of history and many were well read when books were an anomaly and put together the Greatest Experiment in written history, A Govt, Of & By the People FOR the People. The knew it was for a Moral and Religious People ( which was 99% of the population in the 1730’s) and TOTALLY UNFIT FOR ANY OTHER. The Bill of Rights was a roadmap for future generations to follow and after much debate was finally whittled down to the Original 10 which was considered the most important. Most Rebublics last about 200 years ( there’ that history thing again) and we are overdue for a Revolution. Do we remain the most prosperous, generous, nation in the world or do we DEvolve to a Banana Republic? Venezuela or Cuba anyone?? I so not care to live in a country that I have to ask for permission of the FEDERALS to how I speak, what I’m allowed to speak or write, how I’m allowed to Think, What I can eat, who I can associate with and What to do and when to do it. This is the Progressive movement in America today. It started in 1900 and like communism without a bloody revolution–one little freedom at a time and as long as by Bull has not been gored, all is well, until one day I awaken and the EPA has outlawed my Bull and I have no recourse and I ceased being a Citizen and am now a Subject.