The past decade has seen a great deal of back-and-forth in the conflict between religious advocates of traditional marriage and supporters of gay rights. In recent years, LGBT activists have made serious headway in pushing state legislatures to include sexual orientation in state anti-discrimination laws. For the most part, these reforms have been well intended and have had positive effects for gays and lesbians. However, religious advocates have had their victories as well: court cases like Hobby Lobby v. Sebelius have favored religious concerns, and expanded state-level efforts to pass laws protecting religious beliefs have also made serious headway. However, a new situation in Washington State is pushing the boundaries of this conflict in a way that could have serious consequences for people of faith nationwide: personal liability in court for religious beliefs deemed to be discriminatory.

The Case’s Development

Arlene’s Flowers and Gifts, owned by Baronelle Stuzman, was was sued in 2013 for refusing to sell flowers to a longtime customer, Robert Ingersoll, who had planned a gay wedding. According to Stuzman, she “just took his hands and said, ‘I’m sorry. I cannot do your wedding because of my relationship with Jesus Christ.'” The encounter prompted a number of threatening calls and emails to Stuzman, and ultimately resulted in two separate lawsuits from the Washington State Attorney General and the American Civil Liberties Union.

Stuzman was charged with violating state anti-discrimination laws, which in part prohibit businesses from interfering with “[t]he right to engage in commerce free from any discriminatory boycotts or blacklists” on the basis of sexual orientation. In layman’s terms, this means that Stuzman was legally barred from refusing to sell flowers to Ingersoll on the grounds of her religious beliefs because they are deemed to be de facto discrimination. (We saw similar legal arguments before in cases like United States v. Windsor, in which the Supreme Court hinted at its conclusion that the only explanation for why a person may oppose gay marriage is invidious discriminatory intent.)

This case arose at the same time that other high-profile discrimination cases were coming up in the news. Bakeries in both Colorado and Oregon were sued when they declined to provide cakes for gay weddings. The Colorado bakery stopped selling wedding cakes after their lawsuit, and the Oregon bakery was forced to close shop altogether. A photographer in New Mexico who refused to photograph a gay wedding ultimately lost her legal battle as well, and the Supreme Court declined to hear the case on appeal this past year.

Legal Implications

This latest development in Washington State makes the case of Arlene’s Flowers and Gifts distinct. In each of the previously mentioned lawsuits, the named party has been the business itself rather than the business owner. This made sense, as the actions defined by the law as discriminatory arose from the aggrieved party’s interaction with the business. Here, however, the judge in the case has allowed Stuzman individually to be named as a defendant. Superior Court Judge Alexander Ekstrom’s ruling held that

the plain language of both the [Consumer Protection Act] and [Washington Law Against Discrimination] provide for both individual and corporate liability, and that there is no need to “pierce the corporate veil” to find individual liability for Barronelle Stutzman in either matter.

To again rephrase in layman’s terms: Washington state law allows individuals, not just the businesses they own, to be held liable for actions they take that violate state anti-discrimination laws.

The implications for religious individuals are truly scary: if activists in other states try to implement laws similar to those Washington State, state courts will be able to hold business owners who refuse to support gay weddings financially liable for their individual actions. In other words, because Stuzman “just took [Ingersoll’s] hands” and personally expressed her family’s religious beliefs about gay marriage, the court will be able to go after her own personal finances to pay for damages, fines, and attorneys’ fees. Other small business owners could theoretically also be targeted in the same way: where an owner’s personal actions and beliefs are related closely enough to the actions and policies of their business, activists could use courts to destroy them personally rather than just go after their businesses.

How We Got Here

For many people who are unfamiliar with the legal system, this situation may seem ludicrous. Religious liberty, after all, is a fundamental First Amendment right. How did the legal system in America get to the point where such an action on the part of a state was even permissible?

In short, American law has created a bizarre void in which states can be more oppressive of religious beliefs than the federal government.

In 1990, the Supreme Court ruled in Employment Division v. Smith that the First Amendment did not offer protection for religious beliefs against laws that were neutrally passed and generally applicable to everyone. (In legal terms, this level of analysis is commonly referred to as “rational basis” judicial review.) Specifically, the court ruled that the Free Exercise Clause

does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.

Congress responded in 1993 by passing the Religious Freedom Restoration Act, which protected religious freedom unless there was a “compelling interest” for doing so, and the law in question used the “least restrictive means” to achieve its end. (In legal terms, this is referred to as “strict scrutiny” review.)

However, the Supreme Court responded by issuing two more rulings that, taken together, narrowed RFRA and its application to only those actions taken by the federal government. The first was City of Boerne v. Flores, in which the Supreme Court asserted that RFRA was not a proper use of Congress’s power under the Fourteenth Amendment. The second was Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, which enforced RFRA’s compelling interest and least restrictive means standards to the federal government when the Department of Justice tried to enforce drug laws against a church that consumed narcotic tea as a sacrament.

These rulings, taken together, produced a gap in the level of protection for religious beliefs offered under the law: while the federal government was bound to more stringently protect religious liberties, states were given a much lower protective standard under Employment Division v. Smith and could infringe upon religious liberties so long as it was under the auspice of an otherwise neutral and general law. While this split standard has had serious implications for the issue of gay marriage, it has had implications for other aspects of religious practice as well. For example, cities around the country have been banning feeding the homeless, arresting or fining those individuals who don’t comply. In Florida, a judge had to temporarily stop police from arresting or citing people for feeding the homeless when opposition to the measure became too severe.

The Fight Ahead

If Washington State’s legal standard allowing individual business owners to be named as separate defendants in their businesses’ anti-discrimination lawsuits is enacted in other states, this will create a massive burden for religious individuals seeking to honor their beliefs through the conduct of their businesses. Though the corporation is designed as a legal entity to protect owners from liability, those protections will no longer apply to religious adherents. This will be most problematic for small business owners like Stuzman who directly manage and control the businesses affairs: because they interact directly with their customers, it is more likely that they specifically will be viewed as enforcing the “discriminatory” belief against someone, and they will be more likely to be held liable as an individual owner. Not only will the legal costs of these cases frequently force these companies to close, but more individuals will be penalized and could even face bankruptcy for their religious beliefs.

There are, thankfully, some options available to religious adherents who want to protect their liberties. Legal scholars, watchdog groups, and advocates must remain vigilant and watch out for either activist judges or zealous legislators who attempt to craft law that opens business owners up to personal liability for religious beliefs. Attorneys and parties who are forced to fight this legal battle can also use current law to their advantage. The Supreme Court ruled in Church of Lukumi Babalu Aye v. City of Hialeah that even laws appearing to be neutral and generally applicable are unconstitutional if they can be shown to have been passed with the intent of attacking religious beliefs and practices. Where evidence exists in particular cases that religious beliefs motivated the passage of an anti-discrimination statute, that evidence must be used to aid in an individual’s or business’s defense.

The Broader Scope

This case in particular has me divided: while I support the right that LGBT individuals have to advocate for their rights in our multifaceted and pluralistic society, I also support the right that people of faith have to take actions guided by their religious beliefs. America was founded with religious liberty as a core principle; while those rights have had to be balanced over time, that core principle has never changed. Thus, while I don’t want to see anyone faced with unfair or unjust discrimination, I also respect the importance of protecting the right of all individuals to not support activities with which their faith or beliefs compel them to disagree.

I can’t escape from the question raised by the lesbian t-shirt printers from New Jersey: would we want to rely on the same anti-discrimination laws punishing religious business owners now to compel gay individuals to support anti-gay endeavors or events? Absolutely not.

While Christians in particular may be blessed if they are persecuted, that doesn’t mean that people of faith shouldn’t respond to this new legal challenge. With enough time and effort, we will be able to reach a legal and cultural point where both the rights of LGBT individuals and the rights of religious believers will be respected and maintained in healthy balance. Until then, religious believers of all stripes should stand together and push back against unjust laws like these, wherever they arise.