Free to Marry, Free to Bake

March/​April 2016 • Policy Report

For years, gay couples across America were denied their right to marriage and equal treatment under the law. Now, in the wake of Obergefell v. Hodges, Christian bakers and florists are being denied their right to run their businesses as they choose. The Cato Institute is the only organization in the country to defend both rights in court — the only organization maintaining that individual and religious rights need not be in conflict. Libertarians were among the very first champions of gay rights, backing gay marriage long before liberals and Democrats.

Cato, accordingly, has long upheld the rights of same‐​sex couples to individual liberty and equality before the law. “The Fourteenth Amendment’s Equal Protection Clause establishes a broad assurance of equality for all,” the Institute argued in Obergefell. “It guarantees the same rights and same protection under the law for all men and women of any race, whether rich or poor, citizen or alien, gay or straight.”

But unfortunately, after winning victory in Obergefell, the gay rights movement and the libertarian movement began to part ways. Activists began to target Christian business owners who had declined to participate in same‐​sex weddings — like the Oregon bakers who were fined $130,000 for refusing to bake a wedding cake. As Cato’s vice president for legal affairs Roger Pilon wrote in the Wall Street Journal, “It is one thing to prevent government officials from discriminating against same‐​sex couples — that is what equal protection is all about — quite another to force private individuals and organizations into associations they find offensive.”

Seventy‐​one‐​year‐​old Barronelle Stutzman, the owner of Arlene’s Flowers in Richland, Washington, has worked as a florist for over 30 years. In 2013 Rob Ingersoll, a longtime customer whom she considered a friend, came in and asked if she would provide custom designs for his same‐​sex wedding. She declined, citing her Christian beliefs, but recommended several other florists in the area she thought would do a beautiful job. She believed that they parted amicably, but soon found herself facing three lawsuits — one from Washington’s attorney general, and two more from Rob and his partner Curt. A Benton County Superior Court judge ruled that she had indeed violated Washington’s anti‐​discrimination and consumer protection laws.

“I’ve never questioned Rob’s and Curt Freed’s right to live out their beliefs,” she wrote in the Seattle Times. “And I wouldn’t have done anything to keep them from getting married, or even getting flowers.”

The Cato Institute has filed an amicus brief asking Washington’s Supreme Court to reverse the trial court’s decision, arguing that floristry is an artistic expression deserving full First Amendment protection, including protection against compelled speech. “Clients pay a good deal of money for wedding floral arrangements, precisely because of the value of the florists’ expressive selection and decoration decisions,” the brief reads. “[T]he justices have said repeatedly that what the First Amendment protects is a ‘freedom of the individual mind,’ which the government violates whenever it tells a person what she must or must not say,” Cato senior fellow Ilya Shapiro wrote in a blog post. “Forcing a florist to create a unique piece of art violates that freedom of mind.”

In December, Cato executive vice president David Boaz participated in The Atlantic’s LGBT Summit, where he warned the audience that bringing the coercion of government down upon Christian bakers and florists only risks creating a political backlash to the victory of gay rights. “I think it is an illiberal attitude to say to a person with strong religious views, ‘You have to participate in a ceremony, like a gay wedding, that offends your religious sensibilities.’ Go to a different wedding planner. Go to a different florist,” he said. “We’re not talking about the only doctor in town — we’re talking about businesses. There are millions of businesses, and almost all of them want our business.”

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