how is this process of recognition a multifaceted process that involves legal, social, and political change?

I. Introduction: (10 points) Throughout the semester, we saw how different groups struggle for political, legal, and social recognition. Again, how is this process of recognition a multifaceted process that involves legal, social, and political change? In the end, how is the process a balance of conflicting rights?

II. Body I: (15 points) Start your essay by describing the “Puritan Mistake”, “New Puritanism”, and the general conflict between SOGI anti-discrimination laws and religious liberty. How is this a question of drawing a line between religious liberty/free speech and religious privilege over discrimination? How does the multidimensional nature of this conflict impact the ease of resolution – your answer should include words like Strict Scrutiny/compelling interest, significant/ intermediate scrutiny, and rational basis? Using the quotes I provide below as well as the book, explain how the Smith, Hobby Lobby, and Obergefell cases complicate the resolution to this problem. How is the resolution of this problem both a legal and a political process – be specific?

“Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. But to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs” (Justice Scalia in Smith v. Oregon 1990).

“The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438; Griswold v. Connecticut, 381 U. S. 479 –486. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed (Justice Kennedy in Obergefell v. Hodges 2015).”

III. Body II: (30 points) Provide a brief summary of the arguments of Corvino and Anderson/Grigis from your text concerning the balance between SOGI anti-discrimination laws and religious/free speech liberties (be sure to use page numbers to illustrate that you read the book). How do they frame the question differently? What impact do the different approaches have on their ultimate solutions (be sure to address their notions of dignity, political and legal rights, and their various definitions of who is being discriminated against)? That is, you must address their proposed resolution to the conflict between SOGI anti-discrimination laws and religious/free speech rights, as found on pages 81 & 203-204. What do you believe to be two strengths and two weaknesses of each argument as a whole and their ultimate solution (here you may want to use their responses to each other but use page numbers if you do)?

IV. Body III: (35 points) Read the facts as I provide below. Using your argument above with a focus on their proposed resolutions, how would Corvino and Anderson/Girgis resolve this case? Would their recommendations change if the case did not involve an “elaborate custom floral design”? If so, how? Using a reaction to their proposed resolutions, provide your assessment of how this case should be resolved. In your own words, who should win this case and why – you will get extra points if you include Supreme Court case law we discussed? Is this a simple matter of the government enforcing equality or compelling speech or religious practice? Do you adopt, Corvino or the Anderson/Girgis position or something else (libertarian, progressive, or conservative positions)? In other words, give me your opinion of who should tolerate whom and why? Do you base your resolution on the law, politics, moral/ethical issues, or your own bias? Be honest; there is no right or wrong answer here.

Barronelle Stutzman – a seventy-two-year-old grandmother – has been a floral design artist for over forty years. Her Christian faith teaches her to love and serve everyone, and she practices that faith in the floral business she owns.

For more than nine years, Barronelle designed original works of floral art for Robert Ingersoll and his partner Curt Freed to mark anniversaries, birthdays, Valentine’s Days, and other important events. App.318-19a; 384-85a; 404-05a. But when Robert asked Barronelle to design the flowers for his same-sex wedding ceremony, Barronelle took him to a private place, took his hand, and respectfully declined “because of [her] relationship with Jesus Christ.” App.321a. Robert said he understood, they talked about his wedding, and Barronelle referred him to three nearby florists. App.322a. Before he left, they hugged. Id. The Attorney General of the State of Washington responded by suing Barronelle under the WLAD and the Washington Consumer Protection Act (“WCPA”). The ACLU also filed suit on behalf of Robert and Curt.
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Barronelle hires LGBT employees and serves LGBT clients on a regular basis, App.306-07a, 312-13a, and she had a “warm and friendly” relationship with Robert for over nine years, designing dozens of arrangements for him and Curt. App.404-05a; 416a. But part of Barronelle’s wedding business involves attending and facilitating the ceremony itself and Barronelle simply could not reconcile her faith with *3 celebrating and participating in a same-sex wedding. App.307a; 314-21a.
Nor does this case concern mere unexpressive conduct. Floral design’s place as a visual art form is well-recognized and longstanding. Ikebana or kadō, one of the three classical Japanese arts of refinement, is the disciplined art of flower arranging….1

Barronelle intends all of her custom floral designs to convey a message, but none more so than her original wedding arrangements. Part of her creative process involves meeting with the couple several times – often for hours – to learn about them, their story, their tastes, and desired aesthetic. App.315a; 434-35a. Inspired by such factors as the season and location of the wedding, and colors and themes the *4couple have chosen, Barronelle creates original floral arrangements using artistic principles that range from proportion, color, space, and line to texture, harmony, and even fragrance. App.315-16a; 331-33a. These custom floral designs communicate Barronelle’s vision of the couple’s personalities and the mood or feeling they want their wedding ceremony to reflect. App.315-16a; 332-33a. Through her distinctive floral designs, Barronelle celebrates the couple’s particular union, which requires not only that she invest herself creatively and emotionally in their wedding ceremony, but also that she dedicate herself artistically to memorializing and formalizing it in three-dimensional form. App.314-16a; 333-34a….

In sum, Barronelle is an artist with a conscience who cannot separate her artistic creativity from her soul. Her objection is not to any person or group with a particular sexual orientation but to creating expression that celebrates a view of marriage that directly contradicts her faith. App.318-21a. That is why she sought to explain her religious beliefs about *5 marriage to Robert privately in a kind and gentle way. App.321-22a. Such philosophical disagreements among friends are commonplace in our pluralistic society….

V. Your “Final” Conclusion: (10 points) What are the benefits and dangers of putting the definition of rights and compelled toleration (this goes both ways) in the hands of a political process (i.e., let the States and Congress choose between SOGI anti-discrimination laws, RFRA’s, and an Equality Act ) or the decisions of SCOTUS applying its interpretation of the Constitution? What are the costs and benefits of resolving a conflict of rights based on a political vs. a legal process? Ultimately, who will win this struggle? Can compromise and toleration win out?