When 43 Catholic dioceses, schools, and institutions filed suit against the Obama administration to block the HHS mandate, they reiterated for all Americans the importance of preserving “our first, most cherished liberty”: religious liberty, as guaranteed in the First Amendment. But while national attention lingers on that specific clash, fresh assaults on religious liberty carry on elsewhere.
The latest battleground is New Mexico. In 2008, the New Mexico Human Rights Commission found Elane Photography, an Albuquerque photography studio co-owned by Elaine Huguenin and her husband, Jonathan, guilty of discrimination on the basis of sexual orientation for refusing to photograph Vanessa Willock’s same-sex “commitment ceremony.” The court ordered the business to pay $6,600 in attorney’s fees.
If it was little surprise that the commission found in favor of Willock, it was a shock when, last month, the New Mexico Court of Appeals upheld the ruling. The three-judge panel rejected Elane Photography’s claim that forcing the business to photograph the same-sex ceremony against its conscientious objections constituted “compelled speech” in violation of the owners’ federal and state rights. It also rejected the Huguenins’ claims to protection under the First Amendment’s “free exercise” clause and the New Mexico Religious Freedom Restoration Act.
“I felt like Atticus Finch,” Jordan Lorence, the Huguenins’ attorney, told NRO. “There is so clearly an injustice here.” Lorence is a lawyer for the Alliance Defense Fund, an organization of Christian lawyers specializing in religious-freedom cases.
The court dismissed the appeal that was based on the state’s Religious Freedom Restoration Act as inapplicable in a dispute between “private parties,” apparently failing to recognize that the law should certainly apply to a dispute with the Human Rights Commission, whose ruling and damages Elane Photography was appealing. The court based its decision, in large part, on the technical distinction that a photography studio qualifies as a “public accommodation,” defined in the New Mexico Human Rights Act as “any establishment that provides or offers its services . . . to the public,” such as a shop or a restaurant, “but does not include a[n] . . . establishment that is by its nature and use distinctly private.”
But isn’t a photography studio’s product different in kind from the products of, say, a burger joint or a shoe store? Neither the commission nor the court believed so. While the studio “does exercise some degree of control over the photographs it is hired to take,” the court wrote, “this control does not transform the photographs into a message from Elane Photography.” The court labeled the business, instead, “a mere conduit for another’s expression,” thereby denying it any free-speech protections available under the First Amendment.
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.