A few days ago, I talked about the misunderstanding of equal rights and how it’s running up against freedom of association. The most clear example of this conflict is in the cases of Christian bakers, florists, and photographers. For simplicity, I will use the case of Baronelle Stutzman (more specifically, Washington v. Arlene’s Flowers) to illustrate.
NOTE: There are free exercise of religion elements of this case as well, but I am going to be narrowly focused on freedom of association. I will likely revisit the free exercise of religion at a later date.
After years of selling flowers to a gay customer, Mrs. Stutzman was asked to prepare a floral arrangement for the gay customer’s marriage ceremony. She declined, citing her Christian faith, and instead provided three local florists who would be willing to do so instead.
She was sued, and as the link above explains, the Washington Supreme Court has upheld the original district court ruling, finding her guilty and personally liable for damages according to violating the “public accommodation” law of the state of Washington.
Violating Freedom of Association
The first, and most important thing to notice about this case is who brought the suit: the state of Washington. More specifically, its attorney general, Bob Ferguson. The state government is directly involved in telling someone what they can and cannot do.
Recall that freedom of association is an implied right from the First Amendment, as actions are quite readily speech. The Supreme Court of the United States has consistently and almost without fail held that all speech is protected except if a “compelling governmental interest” overrides. More specifically, the standard to abridge speech is the highest judicial standard out there: strict scrutiny.
Aside: While researching this, I came across this article that sheds some interesting critical light on even the strict scrutiny standard as it applies to the freedom of speech.
A devil’s advocate could suggest that a compelling state interest exists since the original customer was denied a service (a flower arrangement). This was essentially the logic utilized to find Mrs. Stutzman guilty of violating the public accommodation law. But that immediately falls apart because other options were provided. The service was still available, and directly so, just not from Mrs. Stutzman.
The government of Washington has clearly, and directly, violated Mrs. Stutzman’s right to free association. She is welcome to “refuse service to anyone,” and bear whatever consequences from other potential customers. But the instant the government got involved, it was violating her First Amendment rights.
Counterpoint: Trump Boycotts
On the other side of things is the declarations of places like Nordstrom’s that they will not carry Ivanka Trump’s merchandise. They cite poor sales, but this is also freedom of association. Nordstrom can decide to carry whoever’s products they want, and let the sales (or lack thereof) happen as they may.
There’s also the dressmakers who made a point of saying they would not dress First Lady Melania Trump. Consider Sophie Theallet’s words:
“As one who celebrates and strives for diversity, individual freedom and respect for all lifestyles, I will not participate in dressing or associating in any way with the next First Lady.” (emphasis added)
This is exactly the same thing that Mrs. Stutzman did: not participate. Not just that, but she cited personal, conscience-based reasons for her decision. Almost identical to Mrs. Stutzman’s again. If anything, Mrs. Stutzman has a stronger case due to her reasons also being based on freedom of religion.
A Double Standard Dichotomy
In many ways, both the case of Mrs. Baronelle Stutzman and the various Trump boycotts are identical. People are allowed to associate with who they want in the marketplace, and their businesses are allowed to succeed or fail based on how people agree or disagree with those decisions.
Except, that’s not how it’s being done. While people like Ms. Theallet can cite personal reasons, Mrs. Stutzman cannot. Both the media and the courts have perversely upheld this double standard. Because Ms. Theallet is fighting against “evil President Trump,” she is a saint, while Mrs. Stutzman is a “bigoted hater.”
The Equal Rights Misunderstanding
Tying this all back to my first post on this topic, the basis of this double standard is the misunderstanding of equal rights. On the one hand, Mrs. Stutzman is saying “no” to a gay customer. That gay customer is being “denied rights,” never mind the other salient facts in the case.
Meanwhile, those refusing to associate with President Trump and his family cite their support of “diversity, individual freedom and respect for all lifestyles,” a barely veiled reference to LGBT rights. Thus, their celebrated freedom of association is directly related to their support of “equal rights” as presently misunderstood.
And until we can divorce our understanding of the nature of speech from supposed “equal rights,” we will continue to see utter travesties that chip away further and further at everyone’s fundamental right to free speech.