In 2007, a boardwalk pavilion in Ocean Grove, New Jersey lost its tax-exempt status after its owners, a Methodist organization, declined to allow same-sex couples to reserve the space for their weddings on religious grounds. The tax exemption was granted as part of a program to encourage owners of private property, such as the Ocean Grove beachfront space, to open their land to public use. The rest of the Methodist organization’s land retained its tax-exempt status.
It wasn’t equivalent to a church losing its exemption for denying its chapel for use in a same-sex wedding ceremony, but it was nonetheless concerning for defenders of religious liberty and the separation of church and state. It was sure to be only the beginning of such challenges, especially as acceptance of same-sex marriage increased. And now another domino has fallen. As the Wall Street Journal reports, the New Mexico Supreme 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…. 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.”
The Methodist owners of the boardwalk pavilion were participating in a government program, and were told they had violated the public nature of that program. In the case of Elane Photography the court found, as Sterling Beard points out, that the photographers’ policy violates the state’s human-rights law that “prohibits a public accommodation from refusing to offer its services to a person based on that person’s sexual orientation.”
Challenging the ruling doesn’t necessitate a belief that private businesses are not subject to anti-discrimination laws. But the ruling suggests that the owners of Elane Photography’s Christian beliefs are now classified as discriminatory under the state’s human-rights laws, threatening to put church and state in open–and open-ended–conflict. The part of the court’s decision that has received the most attention is this:
At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.
In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.
The Huguenins are told by the courts that documenting and commemorating in pictures and words a ceremony that violates their religious beliefs is, though private enterprise, a public accommodation. And they are further told that their compulsion in this practice is “the price of citizenship”–in other words, the court thinks the Huguenins’ beliefs are not only technically discriminatory, but anti-American.
The truth is, the Huguenins challenged on free speech as well as free exercise grounds, and they attracted the support of legal scholars who support same-sex marriage but also value free speech. Eugene Volokh, Dale Carpenter, and the Cato Institute filed an amicus brief on the Huguenins’ behalf, arguing that photography is clearly protected under the First Amendment as creative expression:
Of course, when a photographer tells a couple that she does not want to photograph their commitment ceremony, the couple may be offended by the photographer’s disapproval. But the First Amendment does not treat avoiding offense as a sufficient interest to justify restricting or compelling speech. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989).
The fact that people have a constitutional right to engage in writing, singing, photography, and the like also responds to the argument that people who do not want to photograph same-sex commitment ceremonies should just stop photographing weddings. Creating expressive works such as photographs (unlike delivering food, driving limousines, or renting out ballrooms) is a constitutional right. People who want to preserve their First Amendment rights to be free from compelled artistic expression cannot be required to surrender their First Amendment rights to engage in artistic expression in the first place.
Additionally, the court’s decision is a pertinent reminder that those making such decisions on American law and practice will often be ignorant of the religious doctrine they are dismissing, and that this ignorance will be a factor in rulings that impact religious Americans. The New Mexico court, for example, decided it had precedent to infringe on religious practice in the U.S. Supreme Court’s ruling striking down Virginia’s anti-miscegenation laws. The New Mexico court quotes the trial judge in Virginia justifying a ban on interracial marriage by saying that God created the different races of man and put them on different continents, and that the “fact that he separated the races shows that he did not intend for the races to mix.”
The New Mexico court follows up with this comment:
Whatever opinion one might have of the trial judge’s religious views, which mirrored those of millions of Americans of the time, no one questioned his sincerity either or his religious conviction. In affirming the Lovings’ convictions, Virginia’s highest court observed the religious, cultural, historical and moral roots that justified miscegenation laws.
That is a gross distortion of Christian belief by ignoring the difference between a Virginia judge assuming the intent of God and the wedding photographers following doctrinal text. One doesn’t have to share the Huguenins’ faith to see the flimsiness of the connection or worry about the effects of setting judicial precedent by relying on such a fundamentally dishonest rendering of the subject–to say nothing of how insulting it is to Christians to make such a comparison in the first place.
Nor should anyone underestimate the damage that can be done by judicial rulings on religious freedom that are propelled by hostility and ignorance to both religious practice and constitutional law.