Yesterday, in the consolidated cases of State of Washington v. Arlene's Flowers and Ingersoll v. Arlene's Flowers, a Washington state court judge held that a small wedding vendor defendant engaged in impermissible discrimination in seeking to honor her religious beliefs and not support the promotion of a same-sex wedding ceremony with her services.

In granting the plaintiffs' motions for summary judgment, Judge Ekstrom of the Benton County Superior Court elevated nondiscrimination laws over free exercise and free speech rights.

In holding that "[f]ree exercise is not . . . without its limits," Judge Ekstrom relied on the Supreme Court's proclamation in Reynolds v. United States that "[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? The permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances."

True, the Supreme Court in Reynolds stated as much.

Equally interesting is the language from Reynolds which Judge Ekstrom excised from his quotation:

"Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed."

I don't know why Judge Ekstrom chose to describe the Free Exercise Clause by quoting from Reynolds. Perhaps he thought it was his best source of authority; that seems unlikely though given that the decision is over 100 years old and is criticized right and left as "outdated." Perhaps he thought he was being clever by using another case involving a rejection of religious rights in the context of sexuality.

If the latter, it's quite ironic that the authority a judge relies on in restricting the rights of religious objectors to same-sex "marriage" is the same authority upholding limits on traditional marriage for the good of society.

For the Court in Reynolds rejected a free exercise challenge to a law criminalizing bigamy, and in doing so, noted the state's significant interest in regulating marriage:

"it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal."

Today, if a state tried to uphold its natural marriage laws by relying on Reynolds it would be criticized loudly and clearly.

Regardless, Reynolds actually proves the utility and workability of strict-scrutiny religious rights frameworks being debated today, as the hypothetical human sacrifice and burning of the dead scenarios mentioned in Reynolds clearly would be barred by a compelling government interest, while other religious rights not seeking to override a compelling government interest would be protected under such frameworks. This is precisely the balance needed to sort out valid religious rights claims from invalid ones, and protect conscience objections like those of Ms. Stutzman -- especially since judges like Judge Ekstrom won't.