OPINION: Wrong battle for religious rights

April 01--Washington law prohibits discrimination based on sexual orientation or gender identity. It is the heading for a protected class of human beings. Sexual orientation cannot be an excuse to discriminate in hiring, wages, housing, or public accommodation. You are also forbidden to discriminate based on race, creed, sex, religion, national origin, parental status, disability, military service, etc. Those too represent protected classes.

So the state's case against Arlene's Flowers, the Richland shop whose owner refused to sell flowers for a gay wedding because of her "relationship with Jesus Christ," was really open and shut. The shop owner Barronelle Stutzman could not refuse flowers for a gay wedding any more than she could refuse flowers for Catholics or Presbyterians, veterans, Latinos or blacks. Her personal beliefs were not an issue. Her First Amendment right to the free exercise of religion does not include refusing to sell flowers to a gay couple for their legally sanctioned marriage ceremony, when you would sell flowers for just about anything else. The case was decided against Stutzman in Benton County. She was ordered to pay a $1,001 penalty and hereafter treat all customers alike.

Sexual orientation is not a protected class in Indiana. You can, for instance, fire an employee simply because they are a homosexual or suspected as such, as you could in Washington not long ago. Based on the state's new Religious Freedom Restoration Act, businesses could assert a right to "free exercise of religion" and an individual sued for discriminatory practices could use religion as a defense. This is broader than most other states and the namesake federal statute, say legal scholars and analysts who have read the laws (Garrett Epps in The Atlantic; University of Minnesota law professor Dale Carpenter in the Volokh Conspiracy blog). Almost always, businesses like Arlene's Flowers are excluded.

Moreover, they note the conspicuous timing of the Indiana statute make it a salvo in the culture wars. It is a reaction to, among other cases, Arlene's Flowers. "One need only listen to the kinds of examples that RFRA supporters cite as 'burdens' on religion to know that RFRAs nowadays are directed at validating and legitimizing antigay discrimination," wrote Carpenter. "The problem with Indiana's new religious-freedom law ... isn't what's written in the statute; it's the intent with which the statute was written. The laws are now seen, not inaccurately, as targeting gay and lesbian Americans," wrote Brookings senior fellow Jonathan Rauch in Time.

So Indiana deserves the scorn being heaped upon it. Its legislature's refusal to adopt language used in other states to exempt civil rights laws was a leading indicator of intent. Its timing was hideous, with the Final Four upcoming, and the state's businesses and press are rightly in a furor. Backpedaling Gov. Mike Pence said Tuesday he wants to amend quickly what he said needs no amending. Hurry.

Defenders of religious liberty need to choose their battles more wisely than did the legislature of Indiana. The bulk of the issue was decided long ago -- you cannot discriminate in public accommodation based on claims of religious belief. Gay marriage is legal in Washington and Indiana. Gays are for good reason specifically protected in this state, and should be in Indiana. Loading up legal ammunition through the back door, as in Indiana, won't work. Give it up and move on.

Tracy Warner's column appears Wednesday through Friday. Reach him at 509-665-1163 or warner@wenatcheeworld.com.

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Reach Tracy Warner at 509-665-1163 or warner@wenatcheeworld.com.

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