|Carig Parshall, General Counsel|
May 7, 2013
There is an intriguing, and troubling connection between a flower shop in the State of Washington and the comments by President Obama at the recent Planned Parenthood conclave. Here is how I connect the dots, starting with the comments by the President:
As the first White House Chief Executive to ever address Planned Parenthood, Mr. Obama revealed in his speech one of the underlying motives behind his much-contested Obamacare legislation. In his address to the large banquet audience at the DC hotel, Mr. Obama stated “the right to choose” (the long-established euphemism for abortion rights) is “why we fought so hard to make health care reform a reality.”
As we now know, the HHS mandate component of Obamacare, which was touted as containing an “accommodation” to religion, actually forces a wide swath of religious organizations and employers to provide insurance coverage for abortion-inducing drugs to their employees and their families. A flood of lawsuits have resulted, challenging this federal compulsion on religious freedom grounds. Several victories have resulted, including one last month where a federal judge granted a preliminary injunction to Seneca Hardwood Lumber Co., protecting its two Catholic, pro-life owners from having to comply with the morally offensive portions of the law, and finding that the law caused irreparable harm to their religious freedoms.
It appears that the Administration defines religious liberty as the right to believe certain religious things as long as it does not result in conforming religious action that conflicts with government orthodoxy. This unsettling view of religious liberty was also evident when a lawyer from the Solicitor General’s office argued to the Supreme Court in Hosanna-Tabor v. EEOC that the First Amendment provided no protection for the actions of religious schools in hiring leadership personnel, a position that astonished the justices and was unanimously rejected by the Court.
That brings us to Arlene’s Flowers, a private florist shop owned and operated by Barronelle Stutzman. The state Attorney General’s office in the State of Washington filed a lawsuit against Stutzman because she had refused to provide the “wedding” flowers for a same-sex ceremony. Her reason was compassionate, but clear. According to media reports, she told Robert Ingersoll, a homosexual customer, “I’m sorry, I can’t do your wedding because of my relationship with Jesus Christ.” Ms. Stutzman’s beliefs were no longer safe once they migrated into action that conflicted with official government orthodoxy about “discrimination” regarding sexual orientation. The ACLU has now joined the fray, suing Stutzman for money damages and attorneys’ fees that could conceivably cripple or destroy her business.
The dichotomy between beliefs, which the Supreme Court says are always protected by the First Amendment, and actions, which increasingly are not, has a long and cantankerous history. But when taken to extremes, it can result in utter despotism. The former Soviet Union had a constitution that contained a pretense of religious freedom, but in practice the citizen’s religious liberties were to be confined strictly to the head and heart; faith-based public actions brought swift and sobering consequences. This false belief-action dichotomy is further worsened by the inconsistency with which it is applied.
In 1992, the Supreme Court outlawed religious prayers at public high school graduations, even when the ceremonies were voluntary. Justice Kennedy, writing for the Court in Lee v. Weisman wrote that such prayers were unconstitutional because they could offend attendees with a “subtle and indirect” pressure to conform to appropriate action in a way that “can be as real as any overt compulsion.” There, the Court was concerned with government-compelled action consisting of nothing more than the school’s expectation that offended audience members maintain a respectful silence during the ceremony. Yet today, religious employers who oppose abortion based on religious conscience face much more than just “subtle” coercion to conform to the HHS Mandate; they can be fined millions of dollars by the federal government. In that same case, Justice Kennedy also wrote “[a] state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed.” Yet in the State of Washington, Barronelle Stutzman is threatened by that very same coercive risk. She could lose her florist shop because her faith-based actions ran afoul of a “state-created orthodoxy” regarding gay rights.
We face a scenario where the faithful followers of Jesus, when acting in response to conscience, are frequently viewed as the unsavory rabble-rousers – the disturbers of the public peace. Benedict Spinoza, the 17th century Jewish philosopher said it well. “The real disturbers of the peace,” he wrote, “are those who, in a free state, seek to curtail the liberty of judgment which they are unable to tyrannize over.”
How the Church universal will respond remains to be seen. We know the admonitions in Scripture regarding peacemaking, and obedience to government. We have been blessed with a relatively free Republic and we must operate the engines of freedom as long as we can. But I wonder if you, like I, hear the echoes of Peter’s bold statement in Acts 5:29 as we ask ourselves what we will choose to do when the days turn darker and the time comes for us to join in his inspired declaration – “We must obey God rather than men.”