Last Friday, the owners of an Albuquerque photography business petitioned the U.S. Supreme Court to overturn a decision of the New Mexico Supreme Court that says they can’t refuse to do business with same-sex couples on religious grounds.

The petition is somewhat peculiar, in that it claims that Jonathan and Elaine Huguenin have a free speech rather than a religious free exercise right to turn down the business. That’s because, as the New Mexico Supremes made abundantly clear, the current constitutional rule is that you have no free exercise appeal against a neutral and generally applicable state law.

According to New Mexico law, you can’t discriminate against people because of their sexual preference. What the Huguenins claim is that being obliged to undertake the (artistic) photography is “compelled speech.”

Let’s leave this jurisprudential nicety aside. The underlying question is: Should Americans be able to use their religious scruples to refuse to provide commercial services to same-sex couples?

Any answer cannot turn on a court’s assessment of the worth of the scruples — whether the particular religious objection is justified or not. All that the American judiciary is entitled to determine is the sincerely of whoever is making the claim. Thus, writing for the court in Bob Jones v. United States (1983), Chief Justice Warren Burger found that the “sponsors of the University genuinely believe that the Bible forbids interracial dating and marriage.” Even so, an eight-justice majority found that racial equality trumped religious liberty, and the IRS’ decision to take away Bob Jones’ tax deduction was sustained.

If we don’t recognize a religious right to discriminate against, say, the newly elected first family of New York City, why should we recognize a religious right to discriminate against a same-sex couple? Why should the latter be more legally tolerable than the former?

40 Comments

  1. Interesting. The concept of Non-Discrimination against PEOPLE, has now been twisted and warped to mean Non-Discrimination against PEOPLE’S BEHAVIORS. Constitutional freedoms of religion and conscience are getting snipped in the name of gay marriage.

    Christians, what happened to the Huegenin family can happen to YOUR small business, or to your church’s associated business, educational and service agencies, as well. Ultimately, over time, it can even happen against your church as well. In fact gay activists are making every effort to ensure it does.

    This is why you have to take the time to vote against gay marriage laws and gay rights ordinances when they pop up in your hometown or state. If you stay home and let them pass on Election Day, they WILL be used as weapons against you.

    Syndicated Columnist George Will wrote about “Bullies” in reference to pro-gay government bullies going after the Huegenins. Well, those gay marriage bullies aren’t stopping there. You, your business, and even your church, is no longer safe.

    • “How is same-sex marriage different from miscegenation?”

      From a legal and rights perspective, it isn’t. Opposition to both came from people who thought God gave them the right to discriminate against others.

      What the Huegenins did was no different from the various businesses who back in the days of Jim Crow refused to serve people of color and claimed it was an exercise of their freedom of association. Same arguments different spin.

      If you hold your business out to the general public, you have to serve the general public. If they wanted to be discriminatory, they should have made their business part of a members only club or not advertised publicly for their services.

      • If the Huegenins had refused to do a birthday portrait, prom portrait, or collegiate-ball portrait of a young man or woman merely because they self-professed to be gay, I’d probably agree with you.

        But that’s the rub — the Huegenins were NOT asked to portrait a particular gay PERSON (or even gay persons) and merely leave it at that. Instead, the Huegenins were asked to do their photography as a specified aid in supporting and celebrating a particular BEHAVIOR (a gay-marriage type of ceremony). A behavior that is absolutely against the Christian religion at all times and places.

        All people ARE created equal. All behaviors are NOT created equal.

        Christians have to take a stand on some issues, they have to agree with their Bibles (for a change), and thus refuse to go with the secular flow, even if gay marriage bullies succeed in removing every last ounce of constitutional religious freedoms. The Huegenins are doing the right thing.
        .

        • You are trying to split hairs in an irrelevant fashion. It doesn’t matter whether it was a portrait or an event. It was a service they provide to the public in a commercial setting. It is no different from if they refused to photograph a black wedding or a Jewish one.

          The government has a vested interest in preventing discrimination in commercial activities as part of its duty to regulate commerce.

          Discrimination in commercial activities is illegal in ANY context and usually spelled out in so many state and federal laws. Religious belief is never a legitimate excuse for it.

          So if I say that no Catholics are allowed in my store, it would be perfectly OK with you since being Catholic is a behavior. One easily changed. =)

          But that is not how the law works. Free Exercise does not allow people to be a law unto themselves nor give excuse to cause harm to others.

          As for taking a stand, you are supporting institutionalized bigotry. It drips with hate, dishonesty and ignorance. There is nothing Christian or Christlike in such a stance.

          • Interesting question, for indeed one of the New Mexico justices wrote that refusing to work for a same-sex marriage was equivalent to refusing to work for a mixed-race message.

            As a black man, I personally find it wrong to withhold wedding-related services from mixed-race couples for religious reasons, but (1) the claimed equivalence/analogy has clear and huge flaws, and (2) the reality is that THEIR religious choice and their freedom of religion and conscience is protected by no less than the U.S. Constitution, even if that makes gay activists upset.

            Briefly, gay-marriage is NOT equivalent to mixed-race marriage, for the same reason that being gay is not equal to being black. Homosexuality does not fall under the federally protected classes such as race, religion, gender. Behavioral choices are not the same as genetic DNA. You are (genetically) born black or white or other racial classifications, but you are not born gay, there are no confirmed genes for “gay” or” lesbian” or “bisexual.”

            So there is no equivalence after all. The New Mexico justice is wrong. And the attempted analogy, utterly fails.

            Long story short, to answer your question, the business you referred to, would be acting in a wrong manner from a biblical standpoint, but yet acting WITHIN their U.S. constitutional rights. If THEIR religious freedoms get clipped in the name of gay marriage, then yours and mine are goners as well.

          • @ DocAnthony
            Religion is a personal choice yet enjoys the full protections of the Constitution. Yet one cannot use it as an excuse to deny goods and services for sectarian reasons.

            Your argument is ultimately infantile. Gay black. Lots of aspects of people are not the same as racial ones, yet subject to discrimination. Our laws protect them all the same. Refusing to do business based on some aspect of the person is discriminatory behavior no matter what the aspect is.

            “Long story short, to answer your question, the business you referred to, would be acting in a wrong manner from a biblical standpoint, but yet acting WITHIN their U.S. constitutional rights.”

            You got it backwards.

            Segregation and anti-miscegenation laws have long had religious roots. It IS justified from a Biblical standpoint. Yet it can’t be justified on such grounds under the law, ever. Your right to free exercise of religion ends when it harms another person. There is no fundamental difference between using your stance to excuse violating anti-discrimination laws and using it to excuse human sacrifice.

        • Doc,
          Let’s say I’m a photographer and a certain type of Christian who believes that the Roman Catholic Church is the Whore of Babylon described in the Book of Revelations, that the Pope is the anti-Christ, and that all Catholic sacraments are satanic rituals that are “absolutely against the Christian religion at all times and places.” Would it be ok for me to refuse to take a photo of a little girl in her first communion dress?

        • That Bible was not written yesterday by an English-speaking/writing person with a degree in History. The most relevant parts were written by Hebrew-speaking people a limited number of whom could read and write both. It was written in the context of Israel of the then day. The then day involved hostile Egyptians, Medes, Assyrians, and Babylonians. There was one thing which Israel aways needed: more soldiers. And more soldiers come from more babies. And more babies do not come from same-sex congress. The Bible is thus open to an interpretation that the problem was not theological, but practical, or theology influenced by the obvious needs of the society of the day.
          Today, in the United States, we do not need masses of infantry. And we are facing various problems suggesting that the number of mouths we need to feed can become an issue, especially if global warming promotes additional desertification. Possibly even God wants fewer babies right now.

          • God made them male and female, be fruitful and multiply. God breathed, Jesus affirmed, case closed.

  2. Black Civil Rights leaders already see the parallel.
    http://www.naacp.org/news/entry/naacp-passes-resolution-in-support-of-marriage-equality

    https://www.google.com/search?q=black+civil+rights+leaders+marriage+equality&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a

      • Why do you have to lie so badly?

        Every ignorant right winger trots out Alveda King as the alleged example to counteract the overhwhelming support of marriage equality by Civil Rights Leaders.

        Alveda King is NOT a civil rights leader nor has any direct relation to the Civil Rights movement other than by family relationship. (She is the niece of MLK) She is one of the few Black right wingers out there making rounds to deflect the oft-substantiated criticism of racism and bigotry being rife among them.
        http://www.rightwingwatch.org/category/people/alveda-king

        • I recall reading that Alveda King said that her uncle was a supporter of the traditional family. Wasn’t he a serial adulterer? I also recall reading something he wrote saying that if a woman’s husband was cheating on her, she was somehow at fault.

      • Mark Silk

        Doc,
        “Homosexuality does not fall under the federally protected classes such as race, religion, gender.” Legally, this is irrelevant. Homosexuality is a protected class in New Mexico, and since the 1990 Smith decision (authored by Justice Scalia), there can be no free exercise claim against neutral and generally applicable state law (which New Mexico’s law unquestionably is). Whether or not homosexuality is something one is born with (a matter of ongoing dispute), homosexuality per se is no more behavior than heterosexuality is; both are simply expressions of sexual identity. That’s why the Catholic church does not consider the former a sin. My point, however, does not have to do with the nature of racial versus sexual identity, but with the legal justification for religiously based discrimination. So even stipulating that homosexuality is a chosen identity (like religiosity), there is no permissible basis for disallowing religiously based discrimination against mixed-race couples but allowing it against same-sex couples.

        • I understand what you’re saying (and thanks for your replies!). Let me briefly point out that I believe your argument depends upon the presence of a statewide gay rights ordinance such as New Mexico’s — a law which arbitrarily (but legally) equates being gay with being black/female/religion etc. Also, I believe that it is the only state lacking a state statute or constitutional provision explicitly addressing same-sex marriage.

          So legally, the NM situation is what it is, but in OTHER states, that legal argument is not necessarily going to be true.

          • Mark Silk

            No doubt, the legal terms will vary, at least for a while, from state to state — and with the feds. One important aspect of current jurisprudence is that under the 1993 Religious Freedom Restoration Act, the Smith rule has been held not to apply to federal laws. Thus, it is likely that the Supreme Court will not enforce the ACA contraception mandate on the grounds that it is a neutral law of general applicability. Be that as it may, however, there remains the issue of differentiating sincerely held religious objections to SSM from sincerely held religious objections to miscegenation. What I would emphasize is that the fact that someone happens to have a religious objection to an anti-discrimination law does not alone entitle a person to an exemption. And American courts are not entitled to decide that a religious objection to SSM is more religiously valid than a religious objection to miscegenation.

          • Race is a socially constructed category. Have they identified a “black” gene? Racial categories differ by time and place. We no longer talk about “mulattos”. I have heard and read of “black” people who could pass for white or Hispanic, and did so. Therefore, can we assume that black people who could pass and do not are choosing to be discriminated against?

  3. “All people ARE created equal. All behaviors are NOT created equal,” is one comment above that provides a good introduction to a theme that occurred to me recently.

    Underlying this whole LGBT debate is a basic dispute of material fact, if you will. Namely, is a LGBT relationship a matter of inherent biology, or a matter of ‘selfish’ individual choice. I am personally aware of some sexual orientations being a psychological effect on the individual in question of abuse of a sexual nature when a child, teaching the child that sexual penetration is abysmally awful. That fact suggests psychiatric treatment could be relevant.

    I am also aware of individuals whose first sexual stirrings were of a same sex nature. I know of psychiatric opinion that sexual orientation is in most cases as inherent as color of hair and eyes. Where that is the case, the idea of same sex ‘permanent union’, a formation of a partnership for life, is socially beneficial in the sense of discouraging socially undesirable promiscuity, and generally trending toward stability. The label ‘marriage’ is desirable for stability and a sense of societal approval. though that label is causing some groups to have a hemorrhage.

    In any event, it is wrong to dismiss LGBT as ‘behavior’, as if subjectively every participant is simply expressing warped decisions.

  4. cheryl clifton

    I wish to comment with 1 John 4:11.”Dear friends, since God loved us that much, we surely ought to love each other.” As a body of Christ we may not always be in agreement, to deny services based only on that the individuals are not conducting them selves in a way that we may disagree with,limits both the indviduals and the people offering the sevices an opertunity to grow in Christ.

  5. This will further divide the church and lead to substantial losses in the civic and legal arena for those making a stand on this issue. The science behind all this will go on being debated and remain inconclusive, and personal opinion and experience will remain the interpreter of what is right and good. Meanwhile, the name-calling will continue by people who have lost the ability to debate in a respectful and informed fashion. Blog posts are the worst for this (myself included – ha, ha). Still, God’s truth stands firm through it all as unchangeable, perfect and good for all mankind.

  6. Deacon John M. Bresnahan

    Using the race card to promote gay “marriage” is totally fraudulent. Being black (or white) is not a behavior. Forget a few leaders–according to exit polls Black Californians were the backbone of the defeat of gay “marriage” there (partially because of anger at bogus exploitation of race.) Sadly, none of this really matters for, of course, our court dictators inevitably rule our lives.

    • To say nothing of the dictatorship of our elected officials! In Hawaii today, Gov. Neil Abercrombie signed marriage equality into law. Mahalo, Hawaii.

    • Being black or white may not be a behavior, but dating or marrying someone of another race most certainly IS a behavior. Should antidiscrimination law turn a blind eye if the Huguenins cite religious belief to support their decision to happily photograph the marriages of black couples or white couples or Asian couples or Hispanic couples, but categorically refuse to photograph the weddings of any sort of mixed-race couple?

      And religion is certainly a behavior. What if they refused to photograph mixed-fait or Jewish weddings because of their understanding of their Christian beliefs? Should this be permitted under antidiscrimination law?

    • People who complain about “the race card” are not denying their bigoted attitudes or behavior. They are just showing they are thin skinned about being called out on it. It is perhaps one of the dumbest arguments that gets bandied about the right-wingsphere.

      According to polls after Prop 8 was passed, the majority of people who voted for it regretted the decision. Plus it violated the state’s constitution.

      Of course civil liberties are not subject to majority rule. All discriminatory laws are passed by a majority. It does not make them constitutional nor just. Civil liberties are designed to protect minority groups from having their liberties and human dignities stripped away by the majority.

      The reason so many tried amending state constitutions to prevent marriage equality is because they know that popular opinion is rapidly working against them. Without scorched earth legislative nonsense to remove a simple majority from the equation, they will eventually lose the power of having their prejudices given color of law.

      If people like yourself were capable of a rational, secular (not complete bullcrap) argument in favor of your position, then the courts would be a little more favorable to your position.

  7. Notice how the Christians just ignore all Mark’s questions and babble on about genes, behaviour, morality, the bible, etc. They have all their talking points down but have no clue what they mean or how the law actually works. The supreme irony in all this is, like Mark stated, religion IS a choice and behavior but they are so determined to deny gay people any dignity whatsoever that they have to reduce us to sexual acts. Frankly, its so transparent and dehumanizing that they just look foolish to those who don’t share their sectarian commitments.
    Also, these cases have almost nothing to do with gay marriage per se – they are actionable under state non-discrimination statutes that have been on the books for over a decade or more and gay marriage isn’t even legal in the state in question. What they are really wanting is to role back both Smith & Bob Jones decisions so that religion will trump laws of general applicability. Its the same theory that the Catholic bishops make against obamacare. In fact, the religious right bitterly fought the Bob Jones decision, which involved interracial marriage and dating.
    Taken to its logical conclusion, this theory of allowing affirmative carve outs for religious objections would reek havoc on all kinds of laws, particularly federal civil rights laws. Any business owner could claim a religious objection to justify discrimination against racial minorities, for example.

    • The genes, behavior, morality and the Bible that Christians babble on about are important issues for a society to wrestle with. This is normal tension that has always been present in any culture and has been necessary in establishing and maintaining the moral foundations of any society. Only now, our society-at-large is growing less religious (Christian) and is finding success at pushing the bounds of traditional norms. The tide has clearly turned and civic and legal changes in the name of fairness and equality will eventually affect those seeking any kind of religious exemption. As those who push back against these changes for religious reasons, they will undoubtedly face fines, tax penalties, discrimination lawsuits and be found guilty of hate crimes. At this point, I would expect some complications to arise as the courts and political system must then face this kind of response, and like it or not, it will prove to be much more difficult than miscegenation.

      • Keep telling yourself that if it makes you feel better.

        My point was right wing Christians aren’t interested in rational discourse – it is all right wing hysteria. You are a prime example when you rant about fines, hate crimes, etc.

        Frankly, right wing christians are a small minority now and they will have to adjust to this change – they can’t enforce their morality through the law any longer. So, have fun talking to jesus …

        PS – The fact that you think gay rights are “worse” than racism for christians to “handle” is telling.

      • “At this point, I would expect some complications to arise as the courts and political system must then face this kind of response, and like it or not, it will prove to be much more difficult than miscegenation.”

        Miscegenation and segregation did not die quiet deaths in our society. They were fought tooth and nail. Especially by people who thought discriminatory behavior were rights guaranteed by God. Eventually they relent in the face of modernity.

        I would expect in about 1-2 generations, the Christian sects who fought against marriage equality so vigorously will take credit for its acceptance in society through post-hoc revisionism. They will reference the progressive churches which supported it and ignore their role in its opposition. Like what they do right now with religiously sanctioned racism. It all gets swept under the rug as memories fade.

      • Also, society has already moved past your talking points about genes, behaviour, bible, etc. That is why you aren’t having any success convincing people outside your sectarian religion!

  8. I think this is an interesting argument made by the photographers. It isn’t quite as cut and dry as people are making it to out be. If they ran a coffee shop or a movie theater, of course it would clearly be wrong and would be illegal (in New Mexico) for them to refuse service to a gay couple.
    Aside from the legal aspect, it seems to me that although it might be in bad taste and would not be something I would do, it is somewhat reasonable to refuse to perform photographic services for a gay marriage. They shouldn’t be forced to attend a gay wedding or event in the same way you can’t force gay people to attend a straight wedding.
    The argument that photography is art and being forced to doing business with gays would be “compelled speech”, whether you consider photography an art or not, is valid enough to be considered and debated, regardless of the outcome.

    For the record I’m a straight Christian, but think people should generally be allowed to do whatever (or whomever) they want as long as they aren’t hurting any one (and have consent).

      • i hadn’t actually thought of that.

        But to be honest I wouldn’t want a racist person at my wedding any way, much less for them to be entrusted to take my photographs. And I’m sure there are Jewish photographers to be found. The larger point I’m trying to make is that why would you even want them to do the job? Even if you think you’re making some sort of point, you aren’t changing they’re mind.

        I think they should do the job, but the fact is that they don’t want to, so why should the couple even want them to do it? Why give your money to these people.

      • etseq:
        You also completely miss the point concerning their tactic of calling it “compelled speech”. Regardless of their intent I found it to be quite clever and I think it has a decent chance of standing up in court.
        I don’t think anybody would think of it as ok to force a painter to paint a gay couple, or a singer to sing about gay love. Like I said, this is a very specific situation and isn’t so cut and dry.

        And by the way, by lumping all Christians in a group (in your other comments) you’re just as bad a person as any homophobic right-winger.

        • I have zero sympathy with anyone who is anti-gay, just as I do with people who are racist or sexist. It doesn’t matter how they justify it – religious or otherwise. Religion is a not static but a social phenomenon that changes over time. It is embedded in specific cultures and both reflects and contests the values of the larger social and political systems. Indeed, within any social category, including religion or even specific religions, there is a wide range of beliefs that compete and drive these changes. Thus, religion can be used for good or ill, it can reflect the most noble aspirations, as well as the most base prejudices, of humanity. Religion is a vehicle for wars, colonialism, and the oppression of minorities, including dissenting religious sects but it is also the source of inspiration for many social movements to contest the same evils.
          My point is that religion is not a trump card to be used in political debates over legal rights and gay people, the majority of whom are religious, are not going to roll over just because someone gets their feelings hurt when called out on their bigotry. Hurt feelings are the price you pay when you enter the political arena and the pale in comparison to the actual harm to minorities that discrimination causes. Don’t want to be called a bigot? Don’t act like one…

  9. I don’t think you can equate same-sex marriages in any way with interracial marriages. The essence of a marriage is that it is between a man and a woman, Race does not invalidae this essence..

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