SAN DIEGO, September 21, 2013 — New Mexico may not yet be on the list of states which legally recognize gay marriage, but that didn’t stop the state supreme court from ruling against a photographer who refused to take pictures of a same-sex wedding. The United States Constitution’s First Amendment did not stop them either.
Some New Mexico counties hand out marriage certificates to same-sex couples. Some do not. The neutral nature of its state-wide law is a source of conflicting opinion. New Mexico does not literally comment upon same-sex marriage one way or the other.
In the meantime, as if playing a game of leap frog, the NMSC ignored New Mexico’s current situation and skipped ahead to affirm a right that goes beyond a marriage license: They have essentially ruled that same-sex couples have a right to any wedding photographer they choose, even a photographer who objects for religious reasons.
The business in question is Elane Photography, a small home-based company run by Elaine Huguenin with her husband and co-owner Jonathan. Elaine chose not to photograph a same-sex ceremony. She felt that doing so would run contrary to her religious beliefs, something she and Jonathan agreed they would never allow inasmuch as they view their business as an actual Christian ministry.
“We wanted to make sure that everything we photographed — everything we used our artistic ability for, everything we told a story for or conveyed a message of — would be in line with our religious beliefs.”
Huguenin’s convictions were tested when an email from Vanessa Willock expressed interest in hiring Elane Photography to do a photo shoot of a “commitment ceremony” between her and a girlfriend.
“We do not photograph same-sex weddings,” Huguenin explained by email. “Again, thanks for checking out our site! Have a great day.”
Her message said nothing demeaning. Certainly those words could never be confused for hate speech. Neither was the same-sex couple forbidden to have their ceremony photographed by a different company. There were plenty of other photographers to choose from. Elaine Hugeuenin had reason to believe the matter was settled.
She was wrong. Three months later, Vanessa Willock filed a complaint with the New Mexico Human Rights Commission. They found Huguenin guilty of discrimination and ordered her to pay Willock over $6,000.
The case eventually went to New Mexico’s Supreme Court, which ruled last month on behalf of the lesbian couple, stating that Huguenin’s refusal “violated the NMHRA (New Mexico Human Rights Act) in the same way as if it had refused to photograph a wedding between people of different races.” They added that this was “the price of citizenship,” even when religious convictions are involved.
What about Elaine Huguenin’s rights of speech and freedom of religion? These concerns were raised by the Alliance Defense Fund, a non-profit organization that specializes in defending religious liberty and is currently representing Elane Photography.
ADF Senior Counsel Jordan Lorence said, “Government-coerced expression is a feature of dictatorships that has no place in a free country … The idea that free people can be ‘compelled by law to compromise the very religious beliefs that inspire their lives’ as the ‘price of citizenship’ is a chilling and unprecedented attack on freedom … Americans are now on notice that the price of doing business is their freedom. We are considering our next steps, including asking the U.S. Supreme Court to right this wrong.”
Unfortunately, the U.S. Supreme Court hasn’t shown a lot of sympathy itself lately to those who espouse traditional marriage. It might be fair to ask if their recent decisions striking down part of DOMA and refusing to hear an appeal for Prop. 8 emboldened New Mexico’s Supreme Court.
Whatever their inspiration, NMSC does not view its late August ruling as a violation of the First Amendment. They insisted that New Mexico’s anti-discrimination laws do not contradict free speech because no law forces “Elane Photography to either speak a government-mandated message or to publish the speech of another.”
The court also pointed out that Elane Photography could advertise that they were personally opposed to same-sex marriage should they so desire, hence, no violation of the First Amendment.
Ironically the court is merely expressing its own opinion about the rapport between religious freedom and society at large. That opinion, like all opinions, is protected under the very amendment in discussion. But when a judge turns an opinion into a decision based upon an “interpretation of the law,” it may be appropriate for Americans everywhere to re-read the First Amendment’s religion statement and see if it really needs any special interpretation.
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise there-of.”
When a businesswoman believes that by photographing a gay wedding she is disobeying God; when this same woman is ordered by judges to violate her convictions or face a penalty, isn’t the free expression of her religion being prohibited? Can a judge demand something that Congress itself cannot demand?
In any event, Elaine Huguenin’s remaining court affirmed free speech may not be around much longer for her or anybody else. That too, is on the radar of militant gay activists. They have not been shy about stating their ultimate agenda. It’s just that most people in our country haven’t been listening.
As far back as 1987, gay rights spokesman, Jeff Levi talked with sobering honesty to the National Press Club in Washington.
“We are no longer seeking just a right to privacy and a protection from wrong. We also have a right — as heterosexual Americans already have — to see government and society affirm our lives.”
How do you insist that an entire society affirm something without challenging freedom of speech? What about those who cannot in good conscience affirm a homosexual lifestyle for religious or other reasons? When one group of people demands affirmation, how does the First Amendment apply to everybody?
Unless Americans figure out the answer to this question soon, we may find ourselves drifting with the same tide that pulled away Ireland, England, Norway, Canada and Sweden. Those countries already restrict verbal criticism of homosexuality.
Will this happen in America too? Probably. Where there is smoke, there is fire. When government feels free to interfere with religious actions, what will stop it from regulating religious speech or any other kind of speech?
Under fair conditions, a majority of American citizens could speak loudly until the government starts paying better attention to the Constitution. Unfortunately, fair conditions are waning. Matters of religious freedom are less likely to be determined by the majority and more likely to end up as court rulings in the fine tradition of New Mexico.
A recent Rasmussen Poll indicates that the public would probably have vindicated Elane Photography.
Rasmusssen specifically asked, “Suppose a Christian wedding photographer has deeply held religious beliefs opposing same sex marriage? If asked to work a same-sex wedding ceremony, should that wedding photographer have the right to say no?”
Eighty-five percent said the photographer should have the freedom to say no. But public opinion is fast giving way to judicial activism. The tail is wagging the dog.
Americans need to wake up. Any citizen, gay or straight, liberal or conservative, Republican or Democrat, should take heed and realize that New Mexico’s decision is a poisonous assault upon our First Amendment freedom. Liberals may find the ruling convenient at this particular moment but what happens when a future court decision removes some other freedom?
Our country needs to have a serious dialogue which revisits the checks and balances between our judiciary and the other two branches of government.
Perhaps we can begin by asking Rasmussen and similar pollsters to pose a new question: Ask our men and women in uniform if they are sacrificing their lives and spilling blood to fight for an oligarchy, or a free society governed by a constitution and Republic.
Actually, we already know the answer.
This is Bob Siegel, making the obvious, obvious.
Associated Press, Deseret News and ABA Journal contributed to the news details of this article.
Bob Siegel is a radio talk show host and columnist. Information about his radio show can be found at bobsiegel.net.
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