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Monday, August 26, 2013

The Threat to Religious Freedom

I've written before of the potential threat to religious freedom posed by legal recognition of "gay rights" and "gay marriage" (see, e.g., here). Although there have been complaints filed against certain businesses (generally sole proprietors) for refusing to provide services to homosexual couples, we did not previously have a legal opinion (at least that I am aware). As of last week, however, the New Mexico Supreme Court has issued an opinion holding a photography studio (it was an LLC) liable for discrimination for refusing to provide photography services to a homosexual couple. The Wall Street Journal reports:

New Mexico’s highest court ruled Thursday that the owners of an Albuquerque wedding photography company violated state law when they turned away a lesbian couple who wanted to hire them to take pictures of their ceremony. 
Upholding a lower-court ruling, the New Mexico Supreme Court held that the company’s refusal was an act of discrimination. They rejected the argument of the devout Christian owners of Elane Photography who claimed they had a free speech and religious right not to shoot the ceremony. 
... Under the New Mexico Human Rights Act, it’s unlawful for a public accommodation to refuse to offer its services to someone because of the person’s sexual orientation. The same law also prohibits discrimination on the basis of race, religion, color, national origin, ancestry and gender. 
“When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races,” the court stated in its opinion. 
“Even if the services it offers are creative or expressive, Elane Photography must offer its services to customers without regard for the customers’ race, sex, sexual orientation, or other protected classification,” the court said. 
Elaine Huguenin and her husband Jonathan, the owners of the company, argued that shooting the ceremony would have conflicted with their fundamental religious tenets and given the impression that they were supportive of gay marriage. 
The Alliance Defending Freedom, which represented the photographers, said the decision amounted to government-enforced coercion. “This decision is a blow to our client and every American’s right to live free,” stated the group’s senior counsel, Jordan Lorence. 
... “When you open a business, you are opening your doors to all people in your community, not just the select few who share your personal beliefs,” said Louise Melling, deputy legal director of the American Civil Liberties Union, in a statement. The ACLU filed a brief in support of Ms. Willock.
 Without going into the details of the court's decision, the court found that the photography studio had violated the New Mexico law providing protection against discrimination on the basis of sexual orientation. The court also held that the studio and its employees' rights to freedom of speech were not violated because the statute did not require the studio to engage in or prohibit any speech, and did not require the studio to espouse a government message. As to freedom of religion, the court held that the freedom of religion did not outweigh the requirement to follow religiously neutral laws. In his concurring opinion, though, Justice Bosson echoed the statements of the Supreme Court in the 1890 Davis v. Beason decision. Justice Bosson wrote:

 In a constitutional form of government, personal, religious, and moral beliefs, when acted upon to the detriment of someone else's rights, have constitutional limits. One is free to believe, think and speak as one's conscience, or God, dictates. But when actions, even religiously inspired, conflict with other constitutionally protected rights—in Loving the right to be free from invidious racial discrimination—then there must be some accommodation. Recall that Barnette was all about the students; their exercise of First Amendment rights did not infringe upon anyone else. The Huguenins cannot make that claim. Their refusal to do business with the same-sex couple in this case, no matter how religiously inspired, was an affront to the legal rights of that couple, the right granted them under New Mexico law to engage in the commercial marketplace free from discrimination.
I have two points about the New Mexico Supreme Court's decision and Bosson's concurring opinion. First, it is not clear that "sexual preference" anti-discrimination statutes are religiously neutral. I would suggest that since opposition to homosexuality is overwhelmingly based on religious beliefs, the statute is, in reality, a burden on religions, notwithstanding its supposedly neutral wording.

Second, although Bosson's concurring opinion discusses the balancing between conflicting constitutional rights, there is, in fact, no argument or holding that the lesbian couple was exercising a constitutional right. Rather, the whole case was based upon a violation of New Mexico statute.

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