Is Betrayal of Conscience the Price of Citizenship?

broken crucifixActs — which ones are protected by law and which are merely permitted by it — are the focus of a decision by the Supreme Court of New Mexico last week.

In a decision that would have confounded the Founding Fathers, the Court found that homosexual acts are protected by law and acts of conscience are merely permitted, even when a particular act (getting married) is not supported by state law and a general act (following the rules of one’s faith) is guaranteed by the U.S. Constitution.

The justification for this decision? Commerce.

The facts of the case are simple. A young Christian couple, Elaine and Jonathan Huguenins, operate Elane Photography, a business specializing in photographing weddings. They declined to provide services for two women planning a “commitment ceremony” (the court’s term — the two women themselves used the term “wedding”) citing their religious beliefs. The women filed a complaint with the New Mexico Human Rights Commission, saying they were discriminated against because of their sexual orientation. The Commission agreed, as did local and appellate courts.

The Huguenins argued that it was the behavior of the two women — the fact that they were holding a wedding-like ceremony — that they objected to, not the sexual orientation of the women. The photographers said they would provide portraits and similar services to gay clients, but that photographing a same-sex wedding implies both accepting it as possible and endorsing it as a positive good. Because the Huguenins don’t accept that people of the same sex can marry and believe that sexual acts between people of the same sex are sins, they said that being required to photograph the wedding would be “compelled speech” — the equivalent of requiring them to say they endorse that people of the same sex can and should marry if they so desire.

Sweeping aside both case law and sense, the Supreme Court of New Mexico said that owning a business  in New Mexico requires exactly that. New Mexico’s Human Rights Act (NMHRA) states that homosexual people are a protected class, the court wrote, and there is no distinguishing between homosexual acts and a homosexual orientation.

“The NMHRA requires that Elane Photography perform the same services for a same-sex couple as it would for an opposite-sex couple,” the court wrote. “[T]he fact that these services require photography stems from the nature of Elane Photography’s chosen line of business.”

In other words: If you don’t want to photograph gay weddings, get out of the wedding photography business.

The court also rejected the Huguenin’s claim of “compelled speech,” although Jordan Lorence of Alliance Defending Freedom, the couple’s lead attorney, says case law stretching back to the 1940s has established that photography is a form of speech and that even when paid to do so, a person cannot be compelled to express something that violates his or her beliefs.

“A wedding-like ceremony communicates an idea,” he explained. “When you hire someone to photograph it, you’re saying ‘We want you to convey the message we are making in our ceremony.’” The Court’s decision, he says, would compel the Huguenis to do just that.

In their ruling on the compelled speech claim, the justices wrote that compelled speech can only be claimed when the government does the compelling. In this case, they said, it wasn’t the government compelling the photographers to “speak.” Neither, they said, were the prospective clients compelling the Huguenins to speak.

Instead, the Court ruled, “commerce” compelled the Huguenins to attend the ceremony and create celebratory photographs to commemorate it. They were free to voice their disapproval, the Court said, through means such as “a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” But they were not free to act on that opposition.

“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,” wrote Justice Richard Bosson, the only member of the Court to write a separate concurring opinion. But “in the… world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs.”

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Gail Finke


Gail D. Finke is an author and mother living in Cincinnati, where she writes for The Catholic Beat at Sacred Heart Radio.

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  • Bill Kifer

    This is scary. If the state can compel you to engage in commerce in violation of your moral integrity, it can certainly forbid you to do so because of your moral integrity.

    The advent of the latest age of martyrdom.

  • Frank

    Scary, indeed. Much prayer is required as we enter into this “brave new world” of tolerance for everything — except Christian morals!

  • therese

    Thank you for writing about this case. The court’s decision will eventually impact most private businesses. How will the independent-minded Christian earn a living? Our consciences tell us we cannot work in schools where soon we will have to act as if so called same-sex marriages are normal. Nor can we enlist in the military or work at other govt. entities. Counselors are not free to provide reparative therapy if an individual requests it or refrain from same-sex couples counseling. Pastors will not be free to decline marrying such a couple soon enough.

  • DJ

    This is a horrible travesty of justice. Let me see if I have this right: you can live out your faith in private but not in public. In public, you have to violate your right of conscience (private property) because someone else has a right (homosexual lifestyle) that trumps your right (lifestyle). Why didn’t this ‘couple’ hire a different photographer? Oh, I see, that is not the point. The point is to destroy the lives of Christians or anyone who does not believe exactly like they do. And, now they have the ‘law’ to back them into forcing you do something your conscience tells you is deplorable. I get it.

  • Jhn316

    Communism/dictatorship is moving quickly to persecute Christians for their beliefs in the public square. It is part of the “One World” order.
    More to come folks. To destroy religion has been planned for a very long time.
    Homosexuality is being used as a wedge, a divider.
    Create division and upset balance.
    This has happened many times in history.
    God blesses his children with good and satan tries to destroy it.

    Remain faithful to the Lord and do not be discouraged.

  • Barrysullivan1

    This is only a continuation of the persecution of Christians and it will get worse until we throw out the politicians who appoint these judges. They report that millions of Christians stayed home and did not vote because Romney was a Mormon. This is what we can expectif we follow such reasoning. Note I am a Catholic and do not agree with the Mormon theology but not to support Romney on that basis I believe was a tragic mistake.

  • faithandfamilyfirst

    Millions of conservatives stayed home because Romney is a Massachusetts liberal. First, he holds a fundraiser at the home of the CEO of the company that manufactures Plan B. Then, he repeatedly says that he has no plans to do anything about abortion. Then his wife repeats this by assuring people that he has no plans to do anything about abortion. Who knows what he would have done with homosex conduct. If the Repubs ever want to get back in the WH, they better start listening to their base. And, yes, that base is conservative and Christian. The Repub establishment hates that, but it is true. I will not vote for another lib in red.

  • faithandfamilyfirst

    You are absolutely right. “Gay marriage” is not about marriage at all. It is about forcing anyone with an opposing view out of the pubic square.

  • Barrysullivan1

    I have been described as being “A little right of the Pope” since I was in high school so I share your conservatism and want of electing conservatives. The problem in the last election is that although we were not sure what course Romney would take (e.g would he nominate conservative judges?) we knew Obama would not. If Obama gets one more liberal supreme court justice to replace one of the conservatives it won’t matter who we elect as president. The US will be over as we know it. This is why I held my nose and voted for Romney.

  • Michael Ryall

    I agree that aggressive secularism – often implemented by the judicial branch of government – is boldly ratcheting up its war on the Christian faithful. This story is certainly consistent with that. What this article does not address, though, is the analogous example of refusing service based upon race (ostensibly due to some odd-ball religious principle or another). Is that ok? Or, are we ok with gays refusing service to Catholics in the restaurants they run? Please don’t flame – I am sincerely curious what, exactly, distinguishes these cases. Until I hear a sensible general legal principle that works both ways, I’m inclined to feel a bit ambivalent about this particular case.

  • catholicexchange

    This assumes that there is no moral difference between race and sexual lifestyle, but there is. Race is simply a set of physical characteristics–there are no objective grounds for discriminating based only on that, and there is now ample legal precedent for preventing such discrimination in society. On the other hand, sexual lifestyle has a moral dimension, and therefore there are all kinds of laws that govern it in our society; for instance, nobody can legally have sex in public, nobody can legally have sex with a child, etc. These laws have their basis in America’s religious heritage, which is primarily Christian; it’s because of this moral dimension that people look to their religious beliefs to judge how to react in situations like the one in the article. Furthermore, the right of individuals to practice their religion is indeed protected by law. If you are looking for a general legal principle, we would suggest the 1st Amendment to the Constitution.

  • Michael Ryall

    Hi, thanks so much for your thoughtful reply. I’m a little bit hesitant to push this discussion further because I know it inflames passions and, frankly, I’m exactly with you on the unrelenting assault on our religious freedom that comes from all quarters these days. Still, since you have taken the time to reply …

    If I try to follow your argument, 1) race and sexual lifestyle are different because – according to our faith – the latter is immoral; 2) there are laws governing sexual conduct based upon this morality; 3) the photographers in this story were just following their ethics; and 4) the 1st Amendment.

    The first part of your answer, in which you invoke moral distinctions, seems to suggest a claim that Christianity has a greater-then-equal status under US law because these laws stem from Christian traditions. Presumably, that’s not what you meant – not least of all because we like equality under the law regardless of race or creed. However, if it’s not what you meant, then you cannot insist upon a distinctly Christian interpretation of the law.

    Second, your last comment seems to suggest you think that the 1st amendment trumps anti-discrimination laws (your comment was a bit snarky, but I’m trying to take you seriously here and this is the crux of the issue, isn’t it?). If so, we’re in a world of hurt because, the day that becomes the accepted interpretation of the 1st Amendment, the secularists will declare secularism to be the national religion … and then we’re cooked.

    If you owned a restaurant, you would have to serve everyone who came through the door, homosexual or otherwise. Precisely because of that legal standard, the fact that you serve hamburgers to gay people could in no way be an endorsement of homosexuality. Indeed, the 1st Amendment guarantees your right to call that lifestyle as you see it … publicly and frequently (say, by blogging here). I just don’t see the difference viz the photographers. If they want to engage in conscientious civil disobedience, great (my guess is that we Christians will be forced to do more and more such acts in the days ahead). But, standing up for your beliefs also implies accepting the consequences.

  • catholicexchange

    Hello again Michael,
    Yes, your presumption is correct–that isn’t what I meant. Christianity cannot, according to the Constitution, have greater-than-equal status; but there is also nothing in the Constitution that suggests our country should be a sort of religion-free zone where laws are made without reference to religious principles. That would go against our founding and (what I perhaps naively think) is still at the core of our nation’s heart.
    No, I don’t think the 1st Amendment trumps anti-discrimination laws–that’s up to better legal minds than mine to explore what’s just when there is tension between the two. However, that brings us back to this particular case, which I think is not so very complex. Your analogy still doesn’t really hold, since we’re not talking about people refusing to serve food to a homosexual couple in a public restaurant. First: who knows if they are homosexual? Who would care to ask, really? Unless they are displaying affection, of course–that might be a problem. Regardless, the case in the article is quite a few degrees more serious: people being forced to condone the so-called ‘marriage’ (a theological impossibility) of a homosexual couple by helping them celebrate it with photos. This clearly cuts into the religious beliefs of the photographers; in fact, you seem to admit as much in your last couple of sentences. But is the answer, then, as you write, to basically tell them, “well, suck it up, because that’s the price you have to pay for standing up for your beliefs”? Shouldn’t we be striving to protect their religious beliefs? That was certainly a primary motive behind the 1st Amendment, and behind much of what America’s founders fought for. I find it especially galling when we consider that the homosexual couple might just as easily have gone to any number of more sympathetic photographers, but instead they made it a point to turn the whole thing into a vicious witch-hunt against the photographers, effectively ruining their business and hurting their families. That isn’t the rule of law–that’s just bullying.
    Very sorry that got so long-winded. God bless.

  • Michael Ryall

    Hi catholicexchange (are you Gail?),

    Thanks for your thoughtful reply. I’ve been thinking about it over the past day or so. My sense is that we agree on the meta-issues to which this incident is attached. For example, I am in fervent agreement that the constitution most certainly does not require that the country to be a religion-free zone or – as Father Baron of Word on Fire recently put it – that faith is OK as long as it be relegated to the status of a hobby. The secularists are on the warpath and we need to fight back hard with heads high and hearts raised to God. (I really want to be clear on that.)

    That said, we need to pick our battles carefully. Given the litany of unambiguous outrages we face every day, it isn’t clear to me that this case is a battle worth fighting. This is the narrow sliver upon which we have a difference of opinion.

    You dismiss my analogy too quickly. I say that because, presumably, it is an analogy that both the gay community and the judges in this case would argue is exactly relevant. If we think not, then we need clear logic why not. Otherwise, we need to pick a different battle.

    The argument that it is a good analogy runs something like this. When you put up a shingle, open for business, in the US, you don’t get to screen customers based upon race, creed, gender, etc. These guys set up a photography business. Apparently, one of their services was taking wedding pictures. Now, in providing this service, the photographers were not asked to sign a statement condoning gay marriage, nor to bless the ceremony, nor to participate in the ceremony in any way. They were not asked to post the photographs on their web site. In fact, I’m sure the copyright to the photos would belong to the customers, not photographers. So, it’s hard to see how they constitute “speech” on the part of the photographers – these would have been private property for the sole use of the clients.

    I understand that the notion of gay marriage runs deeply counter to the faith of the photographers (and ourselves). What I don’t see is how providing their professional services to gay people, equal to any other client, requires them to violate their faith (my guess is that people of greater theological authority than I could have a long debate about what, exactly, constitutes the correct Christian response in such circumstances). I mean, why stop with gay marriage? Are they OK with marriages outside the Church? Or remarriages of people whose divorces are not recognized by the Church? And while we’re at it, what about mortal sins beyond marriage? Were services provided to those people? If so, why not these as well?

    The argument that the restaurant example doesn’t hold because a proprietor does not know whether a customer is gay or not — i.e., that the issue is knowledge of a person’s state of grace in some sense — is not correct. If a gay couple walks into your restaurant and announces their sexual preferences — or better — inform you that they are picking up hoagies to pack over to their gay wedding reception, I am fairly certain you don’t get to deny them service.

    I agree that the homosexual couple were vicious. My guess is that they felt their civil rights were being violated. From my previous comments, it’s not obvious to me they weren’t. Regardless, dealing with jerks – hateful bullies at that – is not a justification for discrimination.

    One final thought (and then I’ll shut up on this topic). It seems that Pope Benedict was prescient in predicting Christianity becoming once more like it was at the time of Christ — a minority faith facing an avalanche of unrelenting persecution. This concern is echoed by many of the contributors to the most recent issue of First Things (e.g., Reno’s article). Given that potential future, we need to be particularly careful about where we stand on issues like lawful discrimination … you can be sure any precedents set will be turned against us with a vengeance. I don’t want the atheist heart surgeon to refuse to treat me because saving Christians violates his credo. Just sayin’ …

    I apologize for the length of this note … I’m not used to this form of short-form discourse. But, I appreciate the chance to practice :))

    Peace in Christ

  • Gail Finke

    Hi Michael, I am Gail — the other responder was someone from the CE staff. You raise a lot of good points. The ultimate answer I want to give is the one I make in the essay — gay marriage should not be legal in the first place. It redefines marriage (which one can and should argue that states do not have the ability to do) and also violates people’s freedom of religion. Likewise, to make homosexuals a protected class does not simply mean, as most good and decent people think, that Cousin Joe can’t be fired from his job because he’s gay. It means that schools must teach toddlers sex between two men or two women is normal, and that Cousin John can be fired from HIS job for saying it’s not.

    To make a law that deliberately violates religious freedom and then pretend to be surprised that people want to break it is either a deliberate attempt to destroy religious freedom or a complete misunderstanding of what religion is. Either one is troubling, for many reasons.

    You asked what the difference is between this Christian couple not wanting to participate in a gay wedding and a hypothetical couple not wanting to participate in a wedding of a mixed-race couple because of the rules of some weird sect. That’s a valid question and I’m sure you want to know more than the obvious difference that the teaching that homosexuality is morally wrong is the ancient, unchanged teaching of Christianity and Judaism before it and the teaching of a sect is just that, the teaching of a sect. (Though many modern Christians and Jews don’t accept that teaching, they are the ones that have changed — the teaching has not. And while some Christians have interpreted their faith to prohibit inter-racial unions, they did so only by interpreting it their own way — there is no ancient teaching that prohibits inter-racial unions). The principle of not being forced to violate one’s religion is the same, even if one’s religion is stupid.

    But I can’t answer that question because I am not a lawyer and lot of the answer has to do with case law, which has established a framework for determining when one’s religious freedom rights are violated and when they’re not. The NMSC declared by this ruling that once you enter commerce in ANY WAY, you have no religious freedom rights. I think this is an outrageous claim and the potential consequences are immense.

    As far as the couple’s claim to compelled speech goes, it’s a difficult one to understand but think of it this way. If you own an event photography business and I come in and want to hire you to document my Skinhead rally and annual cookout, do you have the RIGHT to say no? Of course you do, although the same things apply — I would own the photos I purchased, and my Skinhead friends and I would have our own password protected portal to look at your website to proof which of the group shots and portraits we wanted. You could refuse the job, and if you did it would be because you did not want to participate in my event and do work that would implicitly say what a fun time it was and what great folks we are — that is how photos count as “speech.” You have that right because Skinheads are not a protected group. But because these clients were gay and thus part of a protected group, the wedding photographers did not have the same right to say no.

    The questions, then, remain: Should homosexuals be part of a protected group and should “marriages” between homosexual people be legal? As long as all we do is fight about the outcome of the answers to those being yes, the squabbles will be over small points like compelled speech and whether or not something is a substantial violation of a right. Is that what we want?

  • Michael Ryall

    Hi Gail,

    Thanks so much for sharing your thoughts and elaborating on the themes in your article. Having entered the faith very recently and having never practiced constitutional law, I’m afraid I am quickly reaching the boundary of my comfort zone with respect to this issue.

    That said, logic is an area in which I do consider myself reasonably well-versed. What strikes me about your article and reply is the conflation of Christian morality with the right and proper functioning of democratic governance over a culturally heterogeneous society. The latter must operate on general principles that can be successfully applied across the spectrum of cultures and beliefs. Part of the definition of “successful” is, presumably, finding the right balance between individual liberty and social cohesion. Once The People have expressed their will regarding an issue like gay marriage, government must proceed to implement it in the right balance.

    In a democracy, if one wants the law to go in a particular direction, then one needs to convince one’s fellow citizens. Thus, if your intended thesis is that gay marriage should not be legal, then you should present convincing arguments to that effect. The issue raised by the event in this article (and upon which you opine) is the proper balance of religious liberty against the implementation of a law legitimately enacted. Conflating the morality of the law (and, hence, the question of its very existence) with the government’s attempt to implement it in a balanced way, does not lead to increased clarity on either dimension.

    Now, I agree that forcing a public business to provide services to people who violate the religious sensibilities of the proprietors is an infringement of religious freedom. But, the issue here is one of balance – we do not, as a society, accept the proposition that individual rights always trump social cohesion (far from it). So, what is the right balance in this case? Remember, our answer has to be in terms of general principles for a properly functioning democracy – not in terms of the particular moral code *we* wish an errant society would have adopted instead.

    My own view is that government must tread very carefully on handing out discrimination rights. Giving businesses the right to discriminate on the basis of the legally acceptable beliefs and behaviors of others opens a Pandora’s box of potential trouble – not least, trouble for Christians (who are now routinely demonized in the public square and would quickly find themselves on the wrong end of any such rights).

    Indeed, forget about the narrow legal definition of protected class. I would go so far as to say that, in your skinhead example, our view should fall on having to provide services to them. As long as someone’s actions are legal, if you operate a public business, you serve them the same as everyone else – regardless of the basis upon which you find them odious. I don’t see any other principle that works for stable democratic governance writ large.

    In closing: 1) perhaps gay marriage isn’t a lost cause but, if not, arguments must be presented at a level that convinces a whole lot of people who presently aren’t; 2) aggressive state infringement of the religious liberties of Christians is a serous issue – and there are good, blatant examples to be raised that do get entangled in grey areas (which I believe this case does).

  • QuoVadisAnima

    As did I, but I agree with faithandfamilyfirst – Romney did not fail because he was a Mormon – yes, I know there were a very few who did not vote for him on that basis, but they were only a single digit fraction of the margin by which he lost – but Romney lost mainly because he was unable to convince conservatives that he would be anything more than just a slower ride to sodom.