Justice will not be served until those who are unaffected are as outraged as those who are.
—Benjamin Franklin—
Equal rights for all, special privileges for none.
—Thomas Jefferson—
Key point: We must stand with men and women like Jack Phillips and Barronelle Stutzman. They are showing us how to contend for liberty and unalienable rights in a nation that apparently has forgotten what these rights are, and how important they are.
Part 1 is available here.
Recently, on July 2, 2021, the Supreme Court of the United States refused to hear the case of Barronelle Stutzman, the Washington florist who had been sued for turning down an opportunity to provide and arrange flowers for the same-sex “wedding” of a long-time customer and friend. She turned down the work politely, and the one requesting her services said he understood. She declined because of her religious convictions about what marriage is and what it means, not because of any animus toward anyone or any group.
As we’ll explain in a moment, when the Supreme Court made its decision not to hear Barronelle’s case, Barronelle already had lost twice before the Washington State Supreme Court. The refusal of the Supreme Court to hear her case left in place the decision of the Washington State Supreme Court. That decision was extremely unjust, and it represents a complete failure of the judicial system in the United States. Ironically, near the top of the Supreme Court building in Washington DC we can read the phrase Equal Justice Under Law. Sadly, it’s an ideal from which the court appears to have departed for several decades, and the departure seems recently to have accelerated.
The Meaning of Marriage and the US Judicial System
A bit of background information about judicial overreach with regard to homosexuality and same-sex “marriage” is in order. On December 8, 2017, I released the first of a series of articles at Word Foundations titled “Myths that Led to the Recognition of Same-Sex Marriage in the United States.” At Christmastime, I was able to publish two Christmas-themed articles that related to the series but that technically were not a part of it. I completed the series on myths with the release of part 10 on April 13, 2018. In that series and elsewhere, I warned that Americans are ceding the millennia-old definition of marriage to the courts in general and to the US Supreme Court specifically. Judges and justices have absolutely no authority to rewrite laws or to redefine marriage, but they do so and did so; and they acted without regard for the devastating consequences of their actions.
Just a few weeks later, on Monday, June 4, 2018, the Supreme Court released its decision in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Commission. While it was good news that Jack Phillips, a Colorado cake artist, won his case, the decision was rendered on narrow grounds. I said at the time,
Jack Phillips won, but he won on a technicality. The ruling is narrow and limited, not in terms of the number of justices who voted for it [7-2 in Jack’s favor], but in terms of its scope. Jack’s beliefs were respected in this case, but only because he was mistreated in the Colorado Civil Rights Commission’s application of the law.
The court dodged the question of whether or not Jack Phillips’s First Amendment rights had been violated. Yet the decision in Jack’s case should have been a slam-dunk victory for religious liberty based the First Amendment to the US Constitution. Conservative blogger Matt Walsh tweeted this about the decision.
Do not call this “a huge win for religious liberty.” It simply isn’t, That is an inaccurate and misleading statement. This is a huge win for Jack Phillips, specifically, but it does precisely nothing to help the general cause of religious liberty.
Do not call this "a huge win for religious liberty." It simply isn't. That is an inaccurate and misleading statement. This is a huge win for Jack Phillips, specifically, but it does precisely nothing to help the general cause of religious liberty.
— The Honorable Matt Walsh (@MattWalshBlog) June 4, 2018
The State that Redefines Marriage One Day Will Reshape Everything it Touches the Next
Here’s the reality that was operative in 2018 and remains operative, even to probably a greater extent, today.
Government’s recognition of same-sex marriage has officially normalized both homosexuality and same-sex marriage, making objections to them, even the most polite and cordial objections, unacceptable. While as yet not everyone will be prosecuted for objecting to these, an increasing number of individuals will be. And multitudes more will be persecuted—ridiculed and maligned in the public square.
Literally weeks before the Obergefell ruling that redefined marriage was issued in 2015, Princeton University Professor Dr. Robert George issued an important warning.
Hear it and weep!
Still, we must never give up fighting for religious liberty and conscience rights — in every arena where they are threatened.
Deadly Myths, and Facts that Far too Few Understand
In Jack Phillips’s situation, the Supreme Court decided in favor of Jack without ruling directly on whether or not his First Amendment rights had been violated. However, in Barronelle Stutzman’s situation, the court avoided the question of constitutionality by refusing to hear her case. Since she repeatedly had lost in the lower courts, this meant depriving her of her constitutional rights, even at the state level.
In just a bit, we’ll return to the issue of the Supreme Court’s refusing to rule directly on the constitutionality of a case that clearly involves a violation of First Amendment rights. For now, let’s return to the Word Foundations series of articles on myths leading to same-sex marriage. It is critical that Americans understand that the Founders of this country never intended the judicial system, including the Supreme Court, to act as it has, with the authority it has been allowed to exercise.
Part 1 of the 10-part series on myths deals with “Myths Relating to the Courts, Government, Law, and the US Constitution.” We discussed four specific myths in that initial article. The following is an adaptation of the original list of myths vs. facts as presented in the original article. (Only minor changes have been made.)
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- Myth #1: Marriage is a government construct over which government and government alone has oversight.
- Fact: Marriage—the lifelong union of one man and one woman—is not at all a government construct, but an institution that preceded government, and an institution that preceded the United States government by thousands of years. Moreover, marriage and the family is society’s most important and most basic institution. Despite any and all appearances and sentiments to the contrary, without healthy marriages and healthy families, societal stability cannot be maintained.
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Myth #2: The federal government, especially through its court system, has absolute authority over marriage.- Fact: This myth is completely unconstitutional. Courts do not have authority to make laws. Moreover, the Tenth Amendment of the US Constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The Constitution is silent about the matter of marriage, and that alone places marriage out of the reach of the federal judiciary, including but not limited to the Supreme Court.
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- Myth #3: The government bestows rights; therefore, the government can take them away.
- Fact: The Declaration of Independence is correct when it affirms the self-evident truths “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….” The government never will admit to taking away rights—only to granting them. Yet, in the very act of creating rights, it violates 1) the definition of rights held by the Founding Fathers, and 2) the Bill of Rights, and therefore the Constitution. Further, government-fashioned rights inevitably trample on the inherent, God-given rights of others.
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Government, in the very act of creating rights outside its authority, tramples on the inherent, God-given rights of others.
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Myth #4: The Supreme Court is the final arbiter of disputes in the United States.- Fact: The Founders of our country never intended that the Supreme Court of the United States would acquire the power it now has. Often, we hear that the Framers established “equal” or “co-equal” branches of government—executive, legislative, and judicial. Even if it were true the Founding Fathers intended for them to be equal (and evidence to the contrary exists), our government has departed from this principle. The courts have stepped way beyond their constitutional authority.
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Barronelle’s Harrowing Journey and the Injustice she Encountered at the End
Against this backdrop, let’s consider Barronelle Stutzman’s case. Barronelle is a resident of Washington State. She is the owner and operator of Arlene’s Flowers, that is, if she hasn’t yet lost everything due to the court’s decision against her. Like Jack Phillips, she turned down the opportunity work at a same-sex wedding. Barronelle was sued. Her case made it to the Washington State Supreme Court, where the justices ruled unanimously against her. However, after it ruled in Jack Phillips’s case, the US Supreme Court sent Barrnelle’s case back to the Supreme Court in her home state. It directed the court to reconsider its ruling against Barronelle in light of SCOTUS’s decision favoring Jack Phillips. John Stonestreet of BreakPoint noted that we should not be surprised that the Washington Supreme Court ruled against Barronelle a second time; it was “not about to admit it had decided anything wrongly.” Alliance Defending Freedom, which represented Barronelle, said at the time,
Without even holding an oral argument, the state court came back [on Thursday, June 6, 2019] with the same result, repeating verbatim much of what it said in its original decision rather than reconsidering the case as the U.S. Supreme Court directed.…
Washington’s highest court read the Masterpiece Cakeshop decision as narrowly as possible, saying that the U.S. Supreme Court’s condemnation of government hostility toward religion applies only to adjudicatory bodies and no other branch of government. As ADF attorneys explain, other U.S. Supreme Court decisions say the exact opposite. In fact, Stutzman’s argument that the state attorney general showed hostility toward religion is what caused the U.S. Supreme Court to send the case back in the first place.
In addition to giving Washington Attorney General Bob Ferguson [who went after Barronelle in court] a free pass for religious hostility because he is not a judge, the Washington Supreme Court opinion ignored everything else that Masterpiece Cakeshop—and more recent U.S. Supreme Court decisions…had to say about free speech and expression, ADF attorneys point out. Those opinions [which they specifically named in their statement] provide strong support for Stutzman’s claim that states can’t force creative professionals who serve everyone to celebrate events or express messages that violate their faith.
In the end, when the case made its way back to the US Supreme Court, none of this mattered to six Supreme Court justices, two of whom — Kavanaugh and Barrett — had been appointed by President Trump. Barronelle Stutzman is now bereft of justice, even though the Court should have welcomed her case. You don’t have to be a legal expert to understand that Barronelle’s First Amendment rights had been violated, just as had Jack Phillips’s First Amendment rights. Even so, Justices Kavanaugh and Barrett did not join Justices Thomas, Alito, and Gorsuch in voting to hear Ms. Stutzman’s case. Daniel Horowitz rightly contends,
Arlene’s Flowers v. Washington State was the perfect vehicle through which to clarify that Masterpiece is a categorical protection for business owners under the First Amendment. As such, for Barrett and Kavanaugh not to join Thomas, Alito, and Gorsuch in taking up the case is as telling as it is unforgivable.
Yet, even when one doesn’t consider the big picture but looks solely at the horrific journey Barronelle Stutzman has endured, what should have happened at the High Court is self-evident. As John Stonestreet said in the opening of his BreakPoint commentary,
On Friday, [July 2, 2021,] in an act of what can only be described as dereliction, the Supreme Court of the United States refused to hear the case of Arlene’s Flowers, Inc. vs. Washington. In refusing to hear this case, the Court has failed to bring clarity to a situation it ultimately created.
In refusing to hear Barronelle Stutzman’s case, the Supreme Court has failed to bring clarity to a situation it ultimately created.
—John Stonestreet of The Colson Center for Christian Worldview and BreakPoint—
For his part, Family Research President (FRC) Tony Perkins was blunt: With its
latest failure to take up what should be a clear-cut case, the Supreme Court is leaving believers out in the cold when it comes to protecting their constitutional right to hold religious views and live out those views in the public square. This latest action is also leaving conservatives wondering how a court with three constitutionalist picks from President Trump and a 6-3 overall conservative majority could drop the ball so badly when it comes to defending the most fundamental and deeply held freedoms enshrined in the Constitution.
In other words, the justices (at least six of them, including the liberal ones as well) shirked their duty to even consider whether or not Barronelle’s constitutional rights had been violated. Why does the Supreme Court even exist when six out of nine justices refuse to do their jobs when a case like Barronelle’s comes before them?
A Pattern of Abuse
Returning to the big picture, we see that it isn’t just Barronelle Stutzman who has been denied her constitutional rights. It’s also Tom Rost of Harris Funeral Homes in Michigan. Amy Stephens, an employee of the funeral home who had been born a male and hired as a male by the funeral home, eventually insisted on presenting as a woman, even while working as an employee serving grieving families. in that case as well, the court ruled against First Amendment rights. At issue was
the definition of the word “sex” in Title VII. Does the law prohibiting employment and workplace discrimination based on sex also prohibit employment and workplace discrimination based on gender identity? In other words, does the term “sex” include gender identity? Certainly it didn’t in 1964 [when Title VII became law]. If the term sex is reinterpreted by the Supreme Court to include gender identity, the Supreme Court effectively will have rewritten, not merely interpreted, the law. Constitutionally, in the United States, only legislative bodies such as Congress have the authority to write or rewrite laws.
Well, the Court did essentially rewrite the law, and Neil Gorsuch, who had been appointed by President Trump, effectively rewrote it. FRC President Tony Perkins said this:
In 2018, Justice Gorsuch wrote, “Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost.” That’s exactly right — and exactly what the justice did not do when the court issued his opinion on homosexual and transgender “rights” on Monday.
In Bostock [the case that included Amy Stephens and Harris Funeral Homes], Justice Gorsuch wrote that the Supreme Court “normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.” He even admits that when the Civil Rights Act, the basis of the court’s action, was enacted in 1964, the term “sex” referred “only to biological distinctions between male and female.” But then, he writes, this is just a “starting point” and concludes that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
What?!? This is judicial abuse, pure and simple. And no Supreme Court justice ever ought to be allowed to get away with it.
But there’s more. The Court also recently sided with Gavin Grimm, a transgendered individual who was born a female but who identifies as a male. She insisted on using the boys’ bathroom at her school in Gloucester County in Virginia, and she sued to be able to continue doing so. She now has graduated, but the Fourth Circuit Court ruled in her favor. The Supreme Court refused to hear the case and in doing so let the lower court’s ruling stand. Only Justices Thomas and Alito voted to hear it.
How is it that we have come to a place where, in a case like this, only two justices are willing to do their jobs? Whatever happened to the privacy rights of children in public schools, children and teens who do not want the restroom assigned to their particular sex to be invaded by a biological member of the opposite sex? So much for their rights!
David Horowitz cites yet another fairly recent, and very disturbing, Supreme Court decision. Amy Coney Barrett wasn’t on the court in May of 2020, but at the time, the court considered granting a stay that would have prevented the ruling by the Ninth Circuit Court of Appeals from taking immediate effect. The Ninth Circuit had decided that turning down a prisoner’s request for sex-change surgery and hormone therapy to transition to a member of the opposite sex was “cruel and unusual punishment.” Guess how many justices supported the stay. Only two: Thomas and Alito.
Howowitz expressed well the frustration of a great many of us when he wrote, “How the other three GOP appointees, especially Roberts and Kavanaugh who seem to worship precedent, could allow a ruling like this to stand is stupefying.”
The Court Has Abandoned its Duty; We Must Fulfill Ours
Unless something changes, I do not believe we can expect the Supreme Court to uphold the Constitution. Of course, we must never stop trying to convince the court to do so. Our efforts must be multi-faceted. We must work at both government and grassroots levels. Ultimately, it is We The People who can and will return our country to its foundational principles. I don’t know everything we need to do, but I do know some things.
One of our duties is to support people like Barronelle — people who have put everything on the line because they love God and the things of God. We need to be angry that she and others are being denied their constitutional rights, and we need to resolve to do all we can (however limited our influence may be) to restore them.
Second, we need to pray. Pray for people like Barronelle Stutzman and Jack Phillips. Mention them during time allotted for making prayer requests in the Bible study classes you attend. Men and women like Jack and Barronelle are on the front lines of the battle to preserve freedom and liberty in America. Pray that God would grant them strength and favor, and that He would bless their public stand for marriage and for Christ.
Third, we need to educate ourselves and others about rights. We need to be able to explain to people why the constitutional rights of Barronelle Stutzman have been violated, and why the rights of homosexuals who are demanding that she serve them have not. To accomplish this, it is critical that we come to understand the nature of our constitutional rights. Further, we must learn and share with others what government’s responsibility is with regard to those rights.
Toward these ends, I want to encourage you to read part 3 of a series I’ve titled “Principles of Liberty: Highlighting the Bedrock Tenets on Which the United States of America Was Founded.” Part 3 is available as in a PDF file here. I wrote the series during July of 2019. A year later, I released a five-session Bible study series that explores the biblical roots of the same ten principles highlighted in the article series. The Bible study is titled “Principles of Liberty: Ten Biblical Truths Embedded in the Declaration of Independence.”
Finally (and this is not by any means an exhaustive list), we must resolve to uphold the principles the Founders upheld with the same resolve and tenacity that they upheld them. Put simply, we must “Recapture the Spirit of ’76.” What does that mean? I explain in this article, but I don’t want to overwhelm you by asking you to read something more. Instead, I’ll invite you to read it as you have time and opportunity — especially if this post has intrigued you, burdened you, and given you a desire to take a stand.
As we seek to uphold with renewed resolve the principles on which our nation was founded, may He grant us the grace He gave to the Founders of America nearly two-and-a-half centuries ago…
…and the grace He already is showcasing in folks like Barronelle Stutzman and Jack Phillips.
Copyright © 2021 by B. Nathaniel Sullivan. All rights reserved.
top image credit: Lightstock
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