Barronelle Stutzman

Religious Liberty As We’ve Experienced It Is Dead

Last week the Washington State Supreme Court ruled that a florist, Barronelle Stutzman, could be forced by her state to provide floral arrangements for a same-sex “wedding” ceremony in violation of her religious beliefs. What’s surprising to me is that her loss is surprising to so many Christians.

At issue in Ms. Stutzman’s case was a statute that prohibited those engaged in public commerce from not providing services to someone because of their sexual orientation. Several technical, legal arguments were made as to whether the statute should be construed to apply to her, but when you’re fighting for religious liberty on technical grounds related to the wording of the statute, then your “win,” if you win, is short lived. A liberal state will just amend the statute to close the “loophole.” That kind of fight for religious liberty, while helpful in the moment, is, as I said last week, a “useless effort” from a long-term perspective.

The real issue for those who care about religious liberty is found in the fact that the state Supreme Court rejected Ms. Stutzman’s argument that the court had “to balance her right to religious free exercise against [the customer’s] right to equal service.”

Ms. Stutzman’s Claim Actually Lost Nearly a Century Ago

Ms. Stutzman’s legal argument was before the U.S. Supreme Court 98 years ago and “religious free exercise” lost. Ironically, it was even a case about marriage! The case was Reynolds v. United States.

The question was whether Mr. Reynolds could be punished for polygamy under the U.S. laws then applicable to the Utah territory. Read carefully what the Supreme Court said of his claim that to punish him for polygamy would violate his right to the free exercise of religion:

The only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. . . . Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? . . . Can a man excuse his practices to the contrary because of his religious belief?

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

The law punishing polygamy was upheld.

It was upheld because the religious views of the time reflected in the common law and in the history of Western Civilization held that polygamous marriages were “odious” and an “offense against society.” Thus, the Court reasoned, the Framers of the Constitution could not have intended for the free exercise of religion to be an excuse to violate laws founded on the country’s moral beliefs.

Why the Stutzmans of America Will Continue to Lose

To understand why Reynolds lost and why Ms. Stutzman had to lose, we must understand the belief system that undergirded the Reynolds Court’s decision. It was a belief that a legal structure (not just a particular law) rests upon some moral code, and religious freedom can’t be used to violate the moral code found in the law. That was true then, and it is true now.

What has changed—and it explains why polygamy could be banned in 1879 and why it will not be able to be banned in the coming years—is the religious beliefs that informed our laws back then. We no longer believe that God has imposed any laws on the social order that all must recognize, including those who make our civil laws.

For example, today our moral code is increasingly finding nothing wrong with same-sex “marriage.” Therefore, a religiously grounded right not to participate in a same-sex “marriage” (unless perhaps one is a church or a minister) is not acceptable. An exception would violate today’s prevailing religious orthodoxy. The same will be true for polygamy.

Put another way, in the language of the Reynolds case, same-sex “marriage” is now “okay” not “odious.” It is more “acceptable” to society, not an “offense” against it. Therefore, Ms. Stutzman cannot make her “religious beliefs superior to the law of the land.”

Sadly, over the last century, the Christian Church became complicit in this cultural change in the religious underpinnings of our legal structure by making Christianity a matter of strictly personal behavior and by not wanting our ministers to discuss the issues of our day from the pulpit.

The vacuum the Christian Church left has been filled by another religion, secular humanism. Religious liberty for those whose beliefs are consistent with secular humanism is alive; it’s just not alive for those who, like Stutzman, hold to biblical beliefs.

The Church is now reaping the fruit of the pietism and cultural silence it has sown. Thus, conservative Christians shouldn’t be surprised anymore when courts uphold laws that force them to violate their beliefs.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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