Elaine Huguenin said it best, commenting on the HRC proceedings in 2008: “The way the commission talks about this, it reduces me to a gumball machine.” Coins in, pictures out. But wedding photography, as Lorence tried to argue before the court, is not that simple: It is an “expressive artistic” endeavor that requires the careful application of skill. Willock implicitly acknowledged this in her initial e-mail to Elane Photography, asking for a photographer who would be willing to help “celebrate” the ceremony. It’s not a stretch to imagine that an artist would have rendered the ceremony differently had Willock asked for someone to “interpret” or “glorify” it.
In its desire to prop up the same-sex-marriage agenda, though, the court has rejected that distinction and, in doing so, established a shocking precedent: Not only photographers but writers, videographers, graphic designers, and a host of others who market their services can now be legitimately forced by the government to work on behalf of causes with which they disagree.
The case is ripe for hypotheticals: An atheist web programmer asked to create a megachurch’s Internet site? A Muslim graphic designer asked to create an advertisement for a hot-dog stand? According to the court’s decision, the government has the right and the responsibility to force each to participate, despite his conscience objections. And in cities like Seattle, Wash., and Madison, Wis., where discrimination statutes extend to political affiliation, the government’s coercive power could force an ad agency to work on behalf of the American Nazi Party or the Communist Party U.S.A.
But why rely on hypotheticals when a growing number of cases like this are coming before courts nationwide?
In March, Hands On Originals, a T-shirt business in Lexington, Ky., refused to make shirts for an upcoming gay-pride parade. In response, the Gay and Lesbian Services Organization of Lexington filed a complaint with the Lexington Human Rights Commission.
Or, from the opposite side: New Mexico liberals have cheered the courage of Antonio Darden, a Santa Fe hairdresser who earlier this year publicly refused to cut Governor Susana Martinez’s hair because of her opposition to same-sex marriage. “If I’m not good enough to be married,” he told the Santa Fe New Mexican, “I’m not going to cut her hair.” By the standard set in the wedding-photography case, the governor could file a discrimination complaint against Darden, as the Huguenins’ attorney pointed out in a New Mexican op-ed.
Elane Photography plans to appeal its case to the New Mexico Supreme Court and, if necessary, to the U.S. Supreme Court. But it’s not merely a matter of overturning an unfavorable ruling. The implications of the decision are staggering. “It needs to be reversed,” Lorence argues, “as a matter of ordered liberty.” The decision could be used to effectively bar those opposed to same-sex marriage (or any other liberal cause) from the marketplace.
Add to Elane Photography and Hands On Originals organizations such as the Ocean Grove (N.J.) Camp Meeting Association of the United Methodist Church, sued for barring a same-sex civil-union ceremony from its property, and individuals such as Don Mendell, a Maine school counselor investigated for endorsing traditional marriage in a 2009 campaign ad, and it becomes clear that threats to religious liberty are not isolated incidents. They signal a nationwide assault on the same right at stake in the battle against the HHS mandate: the right of businesses and private citizens to abide by the dictates of conscience, free from government coercion.
And while it is certainly not clear that as goes New Mexico, so goes the nation, if liberal activists and their judicial backers can chip away at conscience protections in cities and states, they will eventually succeed at the federal level.
— Ian Tuttle is an editorial intern at National Review.