The Washington Supreme Court today decided that Arlene’s Flowers and its owner Barronelle Stutzman violated the state’s anti-discrimination law when the florist refused to sell flowers to a same-sex couple for their upcoming wedding. Stutzman and her lawyers had argued that the law did not apply to this conduct. Even if it did, they argued that it unconstitutionally burdened the freedoms of speech, religion, and association. The Washington Supreme Court rejected each of these arguments.
The outcome should trouble all people of faith, particularly conservatives. The result of a decision like this is that proprietors like Stutzman now will have to violate their consciences or go out of business.
But the most troubling part of the decision is not the outcome. It’s that the decision has a solid legal foundation.
We conservatives tend to lionize Justice Antonin Scalia, and for good reason. But in 1990 Justice Scalia penned a majority opinion for the Supreme Court which directly led to the outcome in today’s Arlene’s Flowers decision. In Employment Division v. Smith, the Court considered whether an Oregon law prohibiting the extension of unemployment benefits to individuals who had been fired for misconduct—such as using illegal drugs—unconstitutionally burdened the rights of two Native Americans who had sacramentally taken peyote. Rather than apply strict scrutiny to the law and facts, as had been done in similar cases in the past, the Court decided to use the rational basis test. Using that test, the Court decided Oregon’s law did not unconstitutionally burden the free exercise of religion.
The difference in the level of scrutiny is a little inside baseball, but it makes all the difference. Strict scrutiny requires the government to convince the court that there is a compelling governmental interest for a law that outweighs the burden placed on a religious practice by the law. If it can’t, the law cannot be applied to the religious practice. The rational basis test, on the other hand, requires citizens to convince the court that a law burdening their religious practice has no logical or permissible underpinning whatsoever. If they can’t, the law is applied to them, despite their religious practice.
It’s almost impossible for the government to pass strict scrutiny. And it’s almost impossible for citizens to win under the rational basis test. Strict scrutiny almost always results in a ruling for the citizens. Rational basis almost always results in a ruling for the government.
That’s exactly what happened in today’s State v. Arlene’s Flowers. Using Employment Division v. Smith as its guide, the Washington Supreme Court decided to use the rational basis test. Once it did, that was the ball game. Arlene’s Flowers lost.
Understanding that Employment Division v. Smith ushered in the potential for this kind of outcome, Congress almost unanimously—only three Senators voted against it—passed the Religious Freedom Restoration Act of 1993 (commonly referred to as RFRA and given the pronunciation “rifra”). RFRA basically reversed the decision in Employment Division v. Smith. It requires courts to apply strict scrutiny to all questions of whether laws violate the right to free exercise of religion in the First Amendment. As written, RFRA applied to both federal and state laws.
But in 1997 the Supreme Court heard City of Boerne v. Flores. In that case, the Roman Catholic Archdiocese of San Antonio challenged local historic preservation laws that prohibited the expansion of a Roman Catholic church building, The archdiocese claimed that the laws unconstitutionally burdened the free exercise of religion, and asked the Court to apply the strict security test required by RFRA. Instead, the Supreme Court held that RFRA could not constitutionally apply to state laws. In a stroke of federalism, the Court decided that Congress lacked the power to impose RFRA on the states. The decision returned the state of the law in the states to the law handed down in Employment Division v. Smith.
States, of course, may pass their own religious freedom restoration acts. Many—including, famously, Vice President Pence’s home state of Indiana—have. But for states like Washington, which has not adopted a religious freedom restoration act, Employment Division v. Smith rules. And in that status quo, outcomes like the one in today’s State v. Arlene’s Flowers are nearly inevitable.
So what are conservatives to do? Pass state religious freedom restoration acts. Prior to the Supreme Court’s Hobby Lobby decision, 20 states had religious freedom restoration acts. After that decision, 16 states introduced legislation to adopt religious freedom restoration acts, but only two of those have been passed.
If states are going to pass and impose laws leading to outcomes like the one in today’s Washington Supreme Court case, people of faith and conservatives can fight back with religious freedom restoration acts. That’s exactly what we should do.