Before I start, I want to tell you about Barronelle Stutzman, owner and operator of Darlene’s Flowers, Inc. Stutzman has a firmly held religious belief that marriage can only be between a man and a woman. A devout Southern Baptist, she follows the Resolutions of the Southern Baptist Conventions Resolutions, which excludes same-sex marriage from the definition of “marriage.”
One of Stutzman’s best clients was Robert Ingersoll, a gay man who regularly ordered arrangements from her over a period of nine (9) years. Stutzman prepared these arrangements knowing that they were often for Ingersoll’s same-sex partner. But when Ingersoll asked her to provide the floral arrangements for his wedding, she ultimately refused and told him she couldn’t do it without violating her religious convictions.
The court didn’t look kindly on Stutzman. It issued summary judgment against her in late February of 2015 and made a preliminary damages award on March 27, 2015 – a day after Pence signed RFRA. The result? Stutzman must (i) pay a fine of $1000; (ii) pay the solicitor general’s attorney fees which—perhaps in an effort to not be seen as spiking the football after defeating a 70-year-old grandmother—only amounted to $1.00; (iii) pay actual damages to Ingersoll (in an amount to be determined); and—this is the kicker—(iv) pay Ingersoll’s attorney fees (in an amount to be determined). Oh, and there’s the matter of the injunction issued against her, which requires her to provide floral arrangements for same-sex marriage ceremonies if she is going to provide them for traditional marriage ceremonies. So the message was basically “Comply, or don’t do weddings.”
In my heart of hearts, I believe this is the wrong result. And yes, even an un-American one.
Just like Ken Honeywell, I think we’re going to get past the RFRA mess, too. Now that he’s let me know how to talk to my liberal friends (and I have a lot of them, so the advice is much appreciated), I’d like to give everyone a few suggestions about how to understand your conservative friends. It’d be cool if you talked to us too, but … baby steps.
1. Accept the fact that we’re angry too. I get it: The law was introduced at an inopportune time and signed by an oblivious governor. I’m not happy with the circumstances either, and if I were governor, I would like to think I would have picked up on the potential firestorm this was going to cause. Don’t get me wrong: I still would have signed it. But not without first making sure sexual orientation was a protected class in Indiana. Heck, it would have been pretty cool to sign them both at the same time, no? What a missed opportunity to create some unity.
2. Stop being dishonest about RFRA’s content. This may require that you read it. But don’t worry, it’s not long. When I see people saying, in all sincerity, that this bill will allow a utility company—even if it has a monopoly in the area—to deny service to same-sex couples, it makes my head explode. Under no interpretation of the law is that true. Where the hell are you getting this from? Do you really believe that could happen? I genuinely feel sorry for you if you do.
If you want to talk, let’s both stop being intellectually dishonest. I won’t talk about Nazis wanting custom-made dreidels from a Jewish dreidel-smith, and you stop spouting off equally ridiculous scenarios.
3. Take responsibility. Much of the shitstorm surrounding Indiana today is because our governor is so tone deaf that he doesn’t know when to start dialing. But some of it’s on you, too. Not only did you allow the content of the law to be so completely and utterly mischaracterized that our idiot celebrocacy thinks we’re a state of bigots who passed a “pro-discrimination” law, you probably didn’t vote, either. Look, I’m glad it looks as if the law will be clarified to address our (yes, our) concerns. But it would have been cool if you’d have been this vocal when the damn thing was being drafted and debated. Come to think of it, maybe we should have been, too.
4. Stop Listening to George Takei. By all accounts, George seems like a great guy and has dedicated himself to great causes. But the dude is encouraging people to boycott our Goddamn state! He wants to economically cripple us (yes, us) because … why? Our governor couldn’t pour piss out of a boot if there were instructions on the heel? That’s a reason to laugh at him. Protest him if you feel like it would help. But it’s not a reason to take jobs from hardworking people. George Takei is being kind of a dick on this one.
5. Christians’ Rights Are in Jeopardy. So I know I’m not supposed to say this to you, but you’re an adult. So bear with me. The result in the Stutzman case is a big problem. Now, it’s not binding precedent in Indiana. And since it’s a state court judgment, it’s barely precedent in Washington. But it happened. Last fucking week. It’s not some pie in the sky hypothetical. And it’s not just Christians who should be getting a little nervous. It’s Muslims (as if they don’t have enough to worry about), it’s Jews, it’s Wiccans, it’s the followers of the First Church of Cannabis. It’s anyone who doesn’t want to be punished for holding a religious conviction. Is there compelling government interest in making sure that Stutzman creates a floral arrangement for Ingersoll and his husband, thereby participating (in her mind, anyway) in the ceremony? No way. Is there a compelling government interest in making sure that Ingersoll and his husband can shop at the same establishments as everyone else? Absolutely. How do you reconcile the two? I have no idea, but let’s talk about it. And remember, as Gov. Pence said, tolerance is a two way street. See? Even a blind squirrel sometimes finds an acorn.
6. Let’s talk about that Atlantic article you all love so much. According to The Atlantic, Indiana’s RFRA does two things that its federal and state analogs for the most part do not. First, it contains a definition of “person” that includes corporations. Second, Indiana’s RFRA can explicitly be used as a defense in a civil action.
Let’s unpack all of that, starting with the definition of “person.” Yes, that’s broader than what most states explicitly have. In fact, most states don’t even define the term in their RFRAs. Nor does the federal RFRA. This is what the Supreme Court was arguing about in that Hobby Lobby decision that none of you read (though you might have caught the highlights of Ginsburg’s dissent on links to the Huffington Post pieces your friends posted on Facebook).
How can a corporation be a person, you ask? Well, it can and often is in statutory circles. Leaving it undefined creates uncertainty, which is what our legislators were probably trying to avoid here. Now, they went beyond Hobby Lobby, which only applies to closely-held corporations, and defined it to include all corporations. Hobby Lobby left the door open for this, but didn’t actually go that far.
All those other states where the term is undefined? Who knows what “person” means there? Not me. Allowing that Indiana’s RFRA goes too far with the definition, what are the actual ramifications of this? I don’t know. Not much? Let’s talk about that. But when we do, please keep in mind Point #2 above.
Now on to this defense bit. Did you know that the federal RFRA can be used as a defense in the exact same manner as contemplated by the Indiana statute in a majority of federal circuits? Curiously, the circuit Indiana is actually in (Seventh, in case you’re wondering) is in the minority. As for its use as a defense in a private cause of action from state-to-state, forgive me, but I haven’t done that research. So why does this matter? Well, if I were drafting the bill, I would have struck this provision and let the courts decide. As it stands, I think it’s ripe for frivolous and insincere use that de-legitimizes the good (I’ll say it again and underline it: good) that can come from RFRA.
7. See Point #6 of Ken Honeywell’s piece.