Acts — 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.”