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Clashing Claims
Should public-accommodation law trump all religious liberty?

Elaine Huguenin

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The Supreme Court of New Mexico yesterday ruled that the First Amendment does not protect a photographer’s right to decline to take pictures of a same-sex commitment ceremony — even though doing so would violate the photographer’s deeply held religious beliefs. As Elaine Huguenin, owner of Elane Photography, explained: “The message a same-sex commitment ceremony communicates is not one I believe.”

But New Mexico’s highest court, deciding an appeal of the case, ruled against Elane Photography, concluding that neither protections of free speech nor of free exercise of religion apply.

Elaine and her husband, Jon, both committed Christians, run their small photography business in Albuquerque, N.M. In 2006, she declined a request to photograph a same-sex commitment ceremony. In 2008, the New Mexico Human Rights Commission ruled that the business had engaged in illegal discrimination based on sexual orientation by declining to use its artistic and expressive skills to communicate what was said and what occurred at the ceremony.

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The commission ruled this way according to New Mexico’s human-rights law, which prohibits discrimination in public accommodations (“any establishment that provides or offers its services . . .  or goods to the public”) on the basis of race, religion, or sexual orientation — among other protected classes.

Elane Photography didn’t refuse to take pictures of gays and lesbians, but only of such a same-sex ceremony, because of the owners’ belief that marriage is a union of a man and a woman. New Mexico law agrees — it has no legal same-sex civil unions or same-sex marriages. Additionally, there were other photographers in the Albuquerque area who could have photographed the ceremony.

Groups supporting Elane Photography filed friend-of-the-court briefs. The Cato Institute argued that, under the First Amendment, photographers have freedom-of-speech protections against government-compelled artistic expressions. The Becket Fund argued that New Mexico’s Religious Freedom Restoration Act protects the “free exercise” of religious liberty. The Alliance Defending Freedom — the lawyers defending Elane Photography — also argued that the First Amendment’s free-exercise clause protects their client.

Today’s decision highlights the increasing concern many have that anti-discrimination laws and the pressure for same-sex marriage will run roughshod over the rights of conscience and religious liberty. Thomas Messner, a visiting fellow at The Heritage Foundation, has documented multiple instances in which laws forbidding discrimination based on sexual orientation, as well as laws redefining marriage, already have eroded religious liberty and the rights of conscience. Indeed, earlier this year, the United States Commission on Civil Rights held an entire hearing on conflicts between nondiscrimination policies and civil liberties such as religious freedom.

After Massachusetts redefined marriage to include same-sex relationships, Catholic Charities of Boston was forced to discontinue its adoption services rather than act against its principles by placing children with same-sex couples. Doctors in California were successfully sued for declining to perform an artificial insemination on a woman in a same-sex relationship. Owners of a bed and breakfast in Illinois were sued for violating the state antidiscrimination law after declining to rent their facility for a same-sex civil-union ceremony and reception. A Georgia counselor was fired after she referred someone in a same-sex relationship to another counselor.

In fact, the Becket Fund reports that “over 350 separate state anti-discrimination provisions would likely be triggered by recognition of same-sex marriage.”

Elaine Huguenin herself explained the concern with these government provisions: “If it becomes something where Christians are made to do these things by law in one state, or two, it’s going to sweep across the whole United States  . . . and religious freedom could become extinct.”

Georgetown University law professor Chai Feldblum, an appointee to the U.S. Equal Employment Opportunity Commission, argues that the push to redefine marriage trumps religious liberty concerns: “[F]or all my sympathy for the evangelical Christian couple who may wish to run a bed and breakfast from which they can exclude unmarried, straight couples and all gay couples, this is a point where I believe the ‘zero-sum’ nature of the game inevitably comes into play. And, in making that decision in this zero-sum game, I am convinced society should come down on the side of protecting the liberty of LGBT people.”

Indeed, for many supporters of redefining marriage, such infringements on religious liberty are not flaws but virtues of the movement.

Citizens must insist that government respect those who continue to stand for marriage as the union of a man and a woman. When he “evolved” on the issue last year, President Obama insisted that the debate about marriage was a legitimate one, that there were reasonable people of good will on both sides.

Obama explained that supporters of marriage as we’ve always understood it (a male-female union) “are not coming at it from a mean-spirited perspective. They’re coming at it because they care about families.” He added that “a bunch of ’em are friends of mine . . . you know, people who I deeply respect.”

But in a growing number of incidents, government hasn’t respected the beliefs of Americans. Citizens must insist that government not discriminate against those who hold to the historic definition of marriage. Policy should prohibit the government — or anyone who receives taxpayers’ dollars — from discriminating in employment, licensing, accreditation, or contracting against those who believe marriage is the union of a man and a woman.

We also must work to see marriage law reflect the truth about marriage. If marriage is redefined, then believing what virtually every human society once believed about marriage — that it is the union of a man and a woman ordered to procreation and family life — would be seen increasingly as an irrational prejudice that ought to be driven to the margins of culture. The consequences for religious believers are becoming apparent.

— Ryan T. Anderson is the William E. Simon Fellow for Religion and a Free Society at The Heritage Foundation and co-author, with Sherif Girgis and Robert George, of the book What Is Marriage? Man and Woman: A Defense.



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