The Briefing 02-17-17

Part I

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Washington state Supreme Court rules against Christian florist Barronnelle Stutzman in gay wedding case

Two huge blows against religious liberty were dealt by two separate courts just yesterday. In both cases there are very important constitutional issues at stake and in both cases, the religious liberty of all Americans is now at risk. We’ve had to trace these stories for some time. The first of these stories going to Washington state brings us to the story of a florist in that state who had to appeal her conviction in terms of violating the state’s antidiscrimination laws all the way to the Supreme Court. Yesterday she lost before that court, and it wasn’t even close; the decision was unanimous. As the Associated Press reported yesterday,

“The Washington Supreme Court ruled unanimously Thursday that a florist who refused to provide services for a same-sex wedding broke the state’s antidiscrimination law.”

The florist is Barronelle Stutzman; she’s located in Richland, Washington, where she has for decades been running a floral business. She had been fined by a lower court for denying service to a gay couple that is for a same-sex wedding in 2013. Now at this point we need to pause for a moment because this report in the Associated Press would have us to believe that the issue at stake was the fact that the florist had denied service to a same-sex couple. But it wasn’t service to a gay couple that was really at stake here. As a matter of fact, the data of the court indicated that this particular florist had indeed served this same-sex couple many times in the past. The issue was not a same-sex couple, the issue in terms of the florist’s convictions was a same-sex wedding.

It was the ceremony that was at issue because Barronelle Stutzman, as an evangelical Christian, indicated that she believed that her participation in terms of her floral artistry in the same-sex weddings would, in effect, require her to affirm same-sex weddings and same-sex marriage there by extension. We need to note that there were other florists and floral vendors available in the community. But this particular same-sex couple, having been denied service by Barronelle Stutzman service for their same-sex wedding ceremony, decided to make of it an issue. And not only did they make it an issue, so did legal authorities in the state of Washington. And what we saw happen yesterday was that the Supreme Court refused to side with Barronelle Stutzman, but instead unanimously upheld the finding of a lower court that she had violated the state’s antidiscrimination statute.

In the immediate aftermath of the court’s decision yesterday, Barronelle Stutzman and her attorneys indicated that she would make an immediate appeal to the United States Supreme Court. When Barronelle Stutzman was sued by the Attorney General there in Washington state and by the same-sex couple, she had responded that in her view, she was only operating out of her Christian conviction and that she was exercising her First Amendment rights. But that was countered by the Attorney General of the state and by the same-sex couple who sued her and effectively made their case all the way to the Washington state Supreme Court. Michael Scott, who is quoted in the Associated Press report, a Seattle attorney who worked with the American Civil Liberties Union to represent the same-sex couple, had previously told the justices of the state Supreme Court he didn’t believe Stutzman’s floral creations constituted speech.

“By providing flowers for a same-sex marriage,” he argued, “she’s not endorsing same-sex marriage. She’s selling what she sells.”

Now before we go any further we need to recognize why religious liberty is actually at stake in this particular case. It’s at stake because in this case the florist is not merely selling flowers, but is extending a professional ability, an expressive ability, and there have been previous court precedents at multiple levels that have affirmed the fact that artistic expression is a form of speech, and Barronelle Stutzman through her attorneys was basically arguing to the Supreme Court of Washington state that her artistic ability and her artistic expression was similarly a form of speech. What we need to recognize here and what we can only hope the civil libertarians and also recognize is that if Barronelle Stutzman’s professional application of her ability as a florist is not speech and thus is not protected speech, then what about any other form of artistic expression? Here you have the cultural elites that are absolutely celebrating the LGBT revolution who are confident it would seem that their own forms of artistic expression or, for that matter, the artistic expression of their allies, is protected while they can deny that same protection to others.

We need to notice that here at the center of this story is a florist, a florist with a relatively small floral vending operation there in Richland, Washington. It would be easy to say this isn’t that big of a case; it’s not that big of a precedent. But we are well warned that in fact it is. The injury here is not particularly financial; many people may try to dismiss this case as being peripheral or unimportant because of the relative minor nature of the penalty that was assessed. Barronelle Stutzman has been fined $1,000 and assessed one dollar in court costs and fees. But we need to recognize that in this particular case, Barronelle Stutzman was standing in for every Christian or, for that matter, every American citizen who is involved in artistic expression. But we have seen the fact that these nondiscrimination laws have been applied against people of Christian conviction who may be photographers, similarly often engaged in a wedding business or, as we’ve seen here, a florist, but it could also be a cake baker, as was the case in the state of Colorado. Our attention must be drawn here to the inevitable collision between the sexual revolution and American constitutional protections for religious liberty. And in this inevitable conflict, we have seen time again that it’s religious liberty that is the loser.

And one of the arguments being made here is indeed the argument that was made before the Washington state Supreme Court by that state’s Attorney General Bob Ferguson. As the Associated Press story and as the record of this Supreme Court argument makes very clear, the Attorney General of the state told the justices that his particular argument against Barronelle Stutzman rested on what he identified as a long-standing principle, and he further warned that uprooting it would weaken antidiscrimination law. That’s really the issue here. What we see is the state of Washington, in this case the Washington state Supreme Court, and we see the Washington state Attorney General making the argument, that if there is a conflict between Christian conviction and the moral revolution, there’s a conflict between religious liberty and the LGBT revolution, then it’s going to be religious liberty that’s going to have to give.

Yesterday’s sad decision, a unanimous decision by the Washington state Supreme Court, is not only a loss for this one Washington state florist, it’s a loss for every single Christian and, furthermore, by extension, that means to every American citizen. Christians understand that when religious liberty is compromised, every other liberty is compromised as well.

Part II

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6th Circuit says Christian prayer at public meetings unconstitutional, challenging SCOTUS precedent

The second case came at the Sixth US Circuit Court of Appeals seated in Cincinnati, Ohio, on appeal by a plaintiff from Michigan. A three-judge panel of that court ruled that prayer before a county commission in the state of Michigan was unconstitutional because it was limited to members of that county commission, who all happen to be Christians. The story is really interesting, and the account is really disturbing.

What we have in this particular case is two judges of the three-judge panel—that means a majority so at this point their decision stands—who found that the practice of prayer before the county commission in Jackson County, Michigan, violated the U.S. Constitution because only commissioners offered a prayer, that is not members of the audience, and the prayer was always Christian, not from other faiths. The two judges in the majority of the three-judge panel, Judge Karen Nelson Moore and Judge Jane Branstetter Stranch, said,

“There is no distinction between the government and the prayer-giver: They are one and the same. The prayers, in [the plaintiff’s] words, are literally ‘government speech.’”

Those two judges went on to argue that the exclusion of non-Christian prayers puts Christianity “in a privileged position” and as they said, “advances one faith over others.”

Now this is a really interesting story and we can take ourselves now to a county commission meeting there in Jackson County, Michigan. Every one of those meetings began with prayer, and the prayer was offered by one of the county commissioners, all of the county commissioners are Christian, therefore all of the prayers were in some sense Christian. But let’s take a closer look at the prayers that caused such offense. Here is one of the prayers. The commissioner said,

“Bow your heads with me please. Heavenly Father we thank you for this day and for this time that we have come together. Lord we ask that you would be with us while we conduct the business of Jackson County. Lord help us to make good decisions that will be best for generations to come. We ask that you would bless our troops that protect us near and far, be with them and their families. Now Lord we wanna [sic] give you all the thanks and all the praise for all that you do. Lord I wanna [sic] remember bereaved families tonight too, that you would be with them and take them through difficult times. We ask these things in your son Jesus’s name. Amen.”

Here’s another one of the prayers.

“Our heavenly Father we thank you for allowing us to gather here in your presence tonight. We ask that you watch over us and keep your guiding hand on our shoulder as we deliberate tonight. Please protect and watch over the men and women serving this great nation, whether at home or abroad, as well as our police officers and firefighters. In this we pray, in Jesus’s name, Amen.”

Now, to state the obvious, as we listen to those two prayers, they were the two prayers offered to this particular federal court as evidence of the violation here of the U.S. Constitution on the part of these county commissioners, you’ll notice that there is probably nothing that is really offensive until the close of these prayers, where both of the commissioners said, “in Jesus’s name.”

Now at this point I hope at least some listeners to The Briefing are remembering our discussion of a case handed down by the United States Supreme Court back on November 6, 2013. That particular case was identified with the town of Greece in New York and in that case, the Supreme Court found that the city council there in the town of Greece, New York did not violate the Constitution of the United States simply by allowing citizens to offer sectarian prayers, that is prayer in a particular religious conviction at the city council meetings there in New York. But in this case, this three-judge panel ruled that it was different in Jackson County, Michigan, because it wasn’t members of the audience who were offering the prayers, but the county commissioners. Now let’s just stop for a moment and consider that. Would that then mean that county commissioners are now singled out along with other legislators as the only persons who cannot pray constitutionally?

Let’s put it another way. This past week I had the honor of opening the House of Representatives of the General Assembly in Kentucky with prayer. And I prayed as a Christian and the question would be, would it be different constitutionally if one of the members of the House of Representatives had prayed the very same prayer? Or to put it differently still, would somehow a representative elected to the general assembly in the state of Kentucky lose his or her own religious liberty simply by virtue of being elected? In that 2013 case at the United States Supreme Court, the majority ruled that the practice of the city council there in Greece, New York did not violate the Constitution because it “doesn’t coerce participation by non-adherence.”

Well, then we might ask, was somebody coerced there in Jackson County, Michigan? Is that how this case ended up before a Federal Circuit Court of Appeals? Well, let’s simply consider the facts in this case. The actual decision handed down by the court yesterday indicates that the original case was brought by a resident of Jackson County, by the name of Peter Bormuth. He asserted that the prayer practice of the county commission violates the First Amendment’s establishment clause. Also included in the official documents coming down from the Sixth Circuit panel, we hear about Mr. Bormuth that he is a self-described pagan and animist. He believes in the attribution of conscious life to objects and phenomena of nature and the existence of spirits separable from bodies. I’m continuing reading from the official document released by the court yesterday in which we read,

“Bormuth worships the Sun and the Moon, as well as ancestral spirits, but his ‘primary deity is the Mother Earth.’ He has written essays, poetry, and music on the subject. He is deeply concerned with environmental issues. Bormuth started attending the Board of Commissioners monthly meetings because he believed that the County was releasing pollutants into a local river.”

Where, you might ask, was there any coercion? That would appear to be the tripwire in the Supreme Court’s test. But Bormuth claimed that he been coerced because leaving the county commission meeting would have been awkward. And furthermore, he claimed that punitive action was taken against him by the county commissioners when he made this an issue. His evidence was his claim, not a matter that was evaluated by the courts, that he’d been denied a seat on the county’s solid waste planning committee, even though he claimed that he was qualified for the position. Bormuth had failed to make his case convincingly before the Federal District Court that did not find in his favor. Instead, the federal district court judge said that his reaction had been, in her words, “hypersensitive.”

The District Court Judge also said that when she reviewed the prayers that Bormuth had offered as evidence of the violation of the U.S. Constitution, she found only was she identified as “benign religious references.”

At this point, evangelical Christians have to think pretty carefully, because what’s at stake here is a certain expression of civil religion. That is to say, the courts are often less involved or less concerned that prayer is less convictional. And that’s why so many prayers offered in public, indeed, by at least many who identify as Christians, are not even remotely Christian. But that 2013 case at the Supreme Court concerning the town of Greece made very clear that Christians in public, even in the public arena, even before a government body, have every right to pray as Christians, but so also do those who were adherents of other faiths.

Now this raises a very interesting question given the situation there in Jackson County, Michigan. All the county commissioners are Christians. Would this mean that somehow in order to comply with the U.S. Constitution and in order to make their prayer constitutional that the voters of Jackson County would have to elect a non-Christian to the county commission? Of course that’s ludicrous. But there’s little way to escape that conclusion in terms of the majority opinion by the panel handed down yesterday. In a dissenting opinion released also yesterday, Judge Richard Allen Griffin, he was the one member of the three-judge panel who did not find against Jackson County, Michigan, stated that the majority in the three-judge panel had made a huge mistake by “finding an appreciable difference between legislator-led and legislator-authorized prayer.”

He said that given the logic of the other two judges on this panel, the government would have to be in the continual process of deciding who has and who has not religious liberty in terms of this kind of public prayer. In conclusion, Judge Griffin offered some very rare common sense when he dismissed the argument that somehow public entities should mandate nondenominational prayers or diverse caregivers or even offer what he suggested would be a prophylactic “message of religious welcome.”

And there he’s responding to another federal judge who suggested just that, that somehow there needed to be a religious form of a trigger warning before in any public arena there might be the offering of prayer. As Judge Griffin said,

“This suggestion runs headlong into Supreme Court precedents. The constitutionality of legislative prayer,” he says, “does not turn on content neutrality, prayer-giver diversity or advance trigger warnings.”

For citing the Supreme Court he says,

“One may safely assume that mature adults can follow such contextual cues without the risk of religious indoctrination.”

That’s stunning common sense. What the judge is saying here, citing the Supreme Court case, is that there is no religious indoctrination taking place by the county commissioners praying these prayers; there is no coercion; there is no violation of the U.S. Constitution; there is no case. He sided with the District Court Judge who said that the plaintiff in this case is hypersensitive. But this is where we need to watch very, very closely, because we are here warned, as elsewhere, that sometimes it’s the nuttiest of arguments coming from the strangest of plaintiffs that end up with court decisions that create monumentally awful precedents that can undermine religious liberty or other American constitutional liberties everywhere for everyone.

The real impact here will go far beyond the Sixth Circuit Court of Appeals, and furthermore, the logic of this decision from the three-judge panel is absolutely toxic to religious liberty as we understand it in America. I think probably the most toxic element is the fact that the judges in this case tried to distinguish between the “what” of the prayer and the “who” of the prayer. But once “who” becomes the issue, then the “who” can be any American citizens. The other thing we need to note is that there are some who basically turn themselves into major activists to try to eliminate any public references to deity, any kind of public prayer and any public religious expression. In this case, the particular plaintiff here in Jackson County, Michigan who identifies himself as a sun and moon worshiper has made his case before a Federal Appeals Court and he has won the day, at least for now.

Part III

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Church of England on the precipice of rejecting 2000 years of Christian teaching on homosexuality

Next and finally, turning to England and the Church of England, in recent days I discussed a controversy roiling in that church, and it has to do with the fact that the church had commissioned an official study group that brought a report calling for the church to basically maintain its current policies and teachings concerning same-sex marriage and the prohibition of openly gay clergy, but at the same time offering what many described as a don’t ask, don’t tell policy. As I said at the time that kind of halfway compromise, which is not rooted in conviction but clearly political convenience, would not last. It turned out, it didn’t even last through the church’s General Synod. The General Synod is made up of three different groups, one of bishops, the second of laity, the third of clergy. And it was the clergy who voted down the report, in effect setting the church back on its heel.

This came just days after 14 retired bishops of the church had issued an open letter in which they expressed their frustrations that the church was moving too slowly towards the full inclusion in celebration of LGBT persons and relationships in the church and too slowly towards the recognition of openly gay clergy. This particular development comes as something of a stunning surprise to authorities in the Church of England. They had expected this report to at least buy them some time, but that’s the lesson from a Christian worldview. On an issue of this kind of moral importance there is no way to buy some time. There’s no such thing as a halfway compromise. Neither side is going to be satisfied. Those who clearly believe what the Scripture reveals concerning God’s plan for sexuality, God’s definition of marriage, God’s intention for sexual behavior can never be satisfied with a “don’t ask, don’t tell” policy. But similarly, those who are pressing for the opposite side of this theological agenda also will never be satisfied with a halfway commitment, because to them it’s a matter of human rights. And so here you have the kind of typical setup for a compromise that doesn’t last for long. But in this case, it didn’t even last a matter of days.

As NBC News reported in terms of this story, this sets up a conflict between the Church of England and the larger Anglican Communion. The Anglican Communion had already distanced itself from the liberal Episcopal Church in the United States because of its ordination and consecration of an openly gay bishop back years ago. But now the Church of England itself, the very mother church of the entire Anglican Communion, stands on the precipice of setting itself over against that communion, where, especially in terms of Africa and other churches in the global south, it is led by theological conservatives who also aren’t going to be satisfied with any compromised position—not to mention the Church of England actually abdicating a biblical definition of marriage and sexual morality.

But finally, a very strange twist in this tale, the London newspaper The Telegraph is reporting that there was a very close vote in the House of Clergy on this matter turning down the report, it was less than 10 votes in terms of the margins and at least some in the House of Clergy are arguing that they may have accidentally voted the wrong way, because they may have hit the wrong button on their digital voting device.

One Anglican blogger pointed to this particular possibility as indicating the dangers of what he described as a digital democracy. Meanwhile, as The Telegraph says, the Church of England authority “reminded members to be more careful with their voting machines.”

I guess the strange and very sad lesson to be learned from this is that you better be careful lest with the push of just one button by mistake you accidentally reverse 2,000 years of Christian teaching and the clear authority of Scripture. But, of course, the margin of this vote being so close, we can rest assured, sadly enough, that the battle was already lost.