Home/Rod Dreher/Religious Liberty, Artistic Freedom Rollback In New Mexico

Religious Liberty, Artistic Freedom Rollback In New Mexico

A unanimous ruling by the New Mexico Supreme Court held that a Christian photographer violated the state’s human rights law by declining to photograph a lesbian commitment ceremony. More:

In an unanimous decision, the state Supreme Court said the business’s refusal in 2006 to photograph the ceremony involving two women violated New Mexico’s Human Rights Act “in the same way as if it had refused to photograph a wedding between people of different races.”

 … Elaine Huguenin, who owns Elane Photography with her husband and is the business’s principal photographer, refused to photography the ceremony because it violated her religious beliefs.

The court rejected arguments that the anti-discrimination law violated the photographer’s right to free speech and the free exercise of religious beliefs.

A lawyer for the business, Jordan Lorence of the Alliance Defending Freedom, sharply criticized the ruling and said an appeal to the U.S. Supreme Court is under consideration.

“Government-coerced expression is a feature of dictatorships that has no place in a free country,” Lorence said in a statement. “This decision is a blow to our client and every American’s right to live free.”

Justice Richard Bosson wrote that the business owners “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 a people,” Bosson wrote in an opinion concurring with the court’s ruling. “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.”

Note well that the libertarian Cato Institute and prominent law professors Eugene Volokh and Dale Carpenter — all supporters of same-sex marriage — had filed a friend of the court brief on behalf of the photographers, arguing that artists must not be compelled by the state to use their talent in ways that violate their conscience. There is simply no way not to see photography as an art. The New Mexico court disagreed. New Mexico does not have same-sex marriage; the ruling was not on marriage law, but anti-discrimination law. Still, the importance of this ruling is that it’s another example of courts establishing in jurisprudence that homosexuality is exactly like race for purposes of non-discrimination — that is, that the only reason to discriminate against homosexuals is irrational animus, as the US Supreme Court has been holding.

I would have granted First Amendment protection to an artist wishing to discriminate on the basis of race, or any other protected category. To compel a writer, photographer, painter, composer, or what have you, to put her talent into the service of something that violates their conscience is a serious wrong. If a gay photographer believed in good conscience that he could not photograph the wedding of Christian fundamentalists, then I think he absolutely should have the right to refuse, on First Amendment grounds.

When I worked as an editorial writer for The Dallas Morning News, from time to time I had to write editorials taking a position I didn’t believe in, because that was the board’s decision. That was fine; it was part of the job. But I told my editor early on that I could not, in conscience, write an editorial supporting abortion rights, which the paper backs. She understood, and was generously accommodating to the line in the sand I drew around abortion. Besides, as a general principle, she preferred to assign all editorials to writers who fully believed in the position the board was taking, on the commonsensical view that a person who totally believed it would be more likely to do the best job. Again, this didn’t always happen, and there were times when some of us had to advocate in the voice of the board for positions we personally may not have entirely agreed with. In those cases, the assignment was a good exercise for us as writers and thinkers.

Similarly, I do not understand why a same-sex couple would make an issue of the wedding photographer turning them down, especially given that there were other wedding photographers in their city, Albuquerque. Do they really want their ceremony photographed by someone who doesn’t want to do it? It’s possible that the photographer, as a matter of professionalism, would have put her conscience objections aside, and done her best. But even so, who would want to take that risk?

Anyway, given the nature of this business — that it involves artistic expression — I can’t see this ruling as anything beyond government mandating expression in violation of the First Amendment. I hope the plaintiffs appeal to the US Supreme Court, but I have no idea if they stand a chance of prevailing.

Ryan Streeter T. Anderson adds:

Indeed, for many supporters of redefining marriage, such infringements on religious liberty are not flaws but virtues of the movement. [Emphasis mine. — RD]

Citizens must insist that government respect those who continue to stand for marriage as the union of a man and a woman. When he “evolved” on the issue last year, President Obama insisted that the debate about marriage was a legitimate one, that there were reasonable people of good will on both sides.

Obama explained that supporters of marriage as we’ve always understood it (a male-female union) “are not coming at it from a mean-spirited perspective. They’re coming at it because they care about families.” He added that “a bunch of ’em are friends of mine . . . you know, people who I deeply respect.”

But in a growing number of incidents, government hasn’t respected the beliefs of Americans. Citizens must insist that government not discriminate against those who hold to the historic definition of marriage. Policy should prohibit the government — or anyone who receives taxpayers’ dollars — from discriminating in employment, licensing, accreditation, or contracting against those who believe marriage is the union of a man and a woman.

We also must work to see marriage law reflect the truth about marriage. If marriage is redefined, then believing what virtually every human society once believed about marriage — that it is the union of a man and a woman ordered to procreation and family life — would be seen increasingly as an irrational prejudice that ought to be driven to the margins of culture. The consequences for religious believers are becoming apparent.

It is happening. Don’t believe you when they say it’s not, or it’s not serious.


about the author

Rod Dreher is a senior editor at The American Conservative. A veteran of three decades of magazine and newspaper journalism, he has also written three New York Times bestsellers—Live Not By Lies, The Benedict Option, and The Little Way of Ruthie Lemingas well as Crunchy Cons and How Dante Can Save Your Life. Dreher lives in Baton Rouge, La.

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