PEACEFUL COEXISTENCE

98 Peaceful Coexistence Report
This is where Professor Alan Brownstein’s suggested framework for balancing the rights of gay
and lesbian couples with the rights of religious believers is helpful. As he notes, in a pluralistic
society we must respect the other’s “right to be wrong” and give them space to live their lives. 261
Professor Richard Epstein argues that a reinvigorated right of free association would solve most
of these problems. Statutes or ordinances that add “sexual orientation” as a protected class
would only further constrain a right already dying of suffocation.
I do not support drawing a distinction between non-profit religious groups and for-profit
businesses. As in the HHS mandate cases, such distinctions are artificial. However, I do think
that Professor Brownstein’s suggestions give us a helpful starting point for thinking through
these questions as a society. There are instances in which the state’s interest in preventing a
serious harm would almost certainly outweigh a religious objection. The state certainly has an
interest in ensuring that designated next-of-kin have the right to make decisions on behalf of
hospitalized patients, whatever the patient’s sexual orientation. 262 Likewise, the government has
a serious interest in ensuring that gay couples are not stranded in the middle of New Mexico,
unable to procure a hotel room. Does the government have a similar interest in ensuring that gay
couples have their first choice of wedding cake baker or that Reverend and Mrs. Kettle’s bedand-breakfast
accepts honeymooning gay couples? Probably not. And unlike the parade of
horribles advanced by some commenters, most religious objections to participating in same-sex
weddings have been quite narrowly drawn and involve only an objection to assisting with a
wedding celebration or to engaging in activities that appear to condone same-sex sexual
activity. 263
[W]hen Robert Ingersoll came into the store to ask Barronelle to design the floral arrangements for his wedding
ceremony, she politely told him she could not do it “because of [her] relationship with Jesus Christ.” As she explains,
Barronelle believes that “biblically marriage is between a man and a woman.” After prayer and thoughtful
consideration, Barronelle concluded that her religious beliefs prohibit her from participating in a same-sex union by
using her artistic talents to create floral arrangements for the ceremony.
Stutzman politely and respectfully told Robert that she could not create the floral arrangements for his wedding
because of her faith and then the two chitchatted for a while. She gave Robert recommendations for other florists,
they hugged, and Mr. Ingersoll left the store. …
It never occurred to Barronelle that someone might consider her decision not to create floral arrangements for Robert
Ingersoll’s wedding as illegal. Barronelle has gladly served gay and lesbian clients for many years, expressing the
same warm demeanor and artistic passion to them as she did all other clients. Mr. Ingersoll and Mr. Freed were no
exception. Indeed, they were longstanding clients of Arlene’s Flowers and Barronelle had served them for nearly nine
years, knowing full well they were gay. But she could not participate in a same-sex marriage ceremony as a matter of
conscience because of her deeply held, biblical belief that marriage is a union between one man and one woman.
(citations omitted)
261
Brownstein Statement, infra at 178.
262
Id. at 178-179; see also Lambda Legal, Peaceful coexistence—Freedom of Worship is not a License to
Discriminate, at 12 (April 21, 2013) (on file with the Commission).
263
Lambda Legal, Peaceful coexistence—Freedom of Worship is not a License to Discriminate, Comment to U.S.
Commission on Civil Rights, at 12 (April 21, 2013) (on file with the Commission).