For years now, a central argument of those in favor of same-sex marriage has been that all Americans should be free to live and love how they choose. But does that freedom require the government to coerce those who disagree into celebrating same-sex relationships?
A growing number of incidents show that the redefinition of marriage and state policies on sexual orientation have created a climate of intolerance and intimidation for citizens who believe that marriage is the union of a man and a woman and that sexual relations are properly reserved for marriage. Now comes government coercion and discrimination. Laws that create special privileges based on sexual orientation and gender identity are being used to trump fundamental civil liberties such as freedom of speech and the free exercise of religion.
These laws add sexual orientation and gender identity (dubbed SOGI) to the list of protected classes such as those grouped by race, sex, and national origin. Unfortunately, these sexual orientation and gender laws have serious flaws. They frequently fail to protect the civil liberties of Americans, especially our religious liberty. These SOGI laws tend to be vague and overly broad without clear definitions of what conduct can and cannot be penalized. The definitions can be entirely subjective: Boise and other cities in Idaho now prohibit even indirect acts that make another person feel he is being “treated as not welcome.” And increasingly these local SOGI laws have criminal penalties, unlike the landmark Civil Rights Law of 1964.
Under the newer laws, family businesses — especially photographers, bakers, florists, and others involved in the wedding industry — have been hauled into court because they declined to provide services for a same-sex ceremony that they viewed as a violation of their religious beliefs.
Yes, Americans must be free to live and love how they choose, but we should not use government to penalize those who think and act differently. Protecting religious liberty and the rights of conscience does not infringe on anyone’s sexual freedoms. All Americans should remain free in the public square to act in accordance with their beliefs about marriage without fear of government penalty.
In addition to the well-known examples of Christian adoption and foster-care agencies that have been forced to stop providing those services because they object to placing children in same-sex households, the examples below show how government has penalized citizens trying to run their businesses in accordance with their beliefs.
The case of Elaine Huguenin and her husband, Jon, is perhaps the best-known example of violations of religious liberty at the state level. The Huguenins’ case has progressed the furthest and might soon make it to the U.S. Supreme Court. As described previously on NRO, the Huguenins run Elane Photography, a small business in Albuquerque, N.M. In 2006, the couple declined a request to photograph a same-sex commitment ceremony because, as Elaine explains, “the message a same-sex commitment ceremony communicates is not one I believe.”
Elane Photography didn’t refuse to take pictures of gay and lesbian individuals, but it did refuse to photograph a ceremony that ran counter to the owners’ belief that marriage is the union of a man and a woman (a belief that New Mexico law endorses). Other photographers in the Albuquerque area were more than happy to photograph the event.
But in 2008, the New Mexico Human Rights Commission ruled that the Huguenins, by declining to use their artistic and expressive skills to communicate what what occurred at the ceremony, had discriminated based on sexual orientation. The commission ordered them to pay $6,637.94 in attorneys’ fees. The ruling cited New Mexico’s human-rights law, which prohibits discrimination in “public accommodations” (that is, “any establishment that provides or offers its services . . . or goods to the public”) based on race, religion, and sexual orientation — among other protected classes.
At the end of 2013, the New Mexico Supreme Court upheld the Human Rights Commission. It concluded that under the state’s sexual-orientation and gender-identity law, the First Amendment does not protect a photographer’s freedom to decline to take pictures of a same-sex commitment ceremony even when doing so would violate the photographer’s deeply held religious beliefs. Justice Richard C. Bosson, in a concurring opinion, made the additional claim that requiring the Huguenins to relinquish their religious convictions was permissible as “the price of citizenship.”
Elane Photography has petitioned the U.S. Supreme Court for review of its case.