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Religious Tolerance logo

Same-sex marriage (SSM) in New Mexico:

2013-NOV: Human rights case involving Elane
and a same-sex couple is
appealed to the U. S. Supreme Court.

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Discussion of his item is continued from the previous essay

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Elane Photography v. Willock appealed to the U.S. Supreme Court:

Alliance Defending Freedom (ADF), a conservative Christian legal defense group, filed a petition for certiorari with the U.S. Supreme Court, asking them to accept an appeal of the decision of the state Supreme Court. According to Breitbart News:

"Gay rights, religious liberty, and free speech collide in a case offered this morning to the U.S. Supreme Court. If the justices take this case, it will be a defining case on American's freedom to speak and act according to their religious beliefs when those beliefs include that marriage is between a man and woman. 1

We have difficulty understanding this position because:

  • No same-sex marriage was involved in the case. The photographs were to be taken of a lesbian couple, who were reciting promises in an informal ceremony -- that they had written themselves -- in the presence of their friends and family. The ceremony was of great emotional significance to the couple involved, but was completely devoid if any legal or religious status or significance. A close parallel to this commitment ceremony might be a dating couple who had mutually decided to "go steady" and date each other exclusively, and later told an assembled group of their friends and family. The case involving Elane Photography LLC did not involve a marriage or a civil union ceremony or any other state recognition of the couple's relationship. None of these existed in New Mexico in 2006.

  • The case did not involve freedom of speech. Presumably, the proprietors could have freely indicated their religious disapproval of the couple's relationship -- to the couple, to the couple's friends and family, and to anyone else -- and would not have run afoul of the state human rights laws, as long as they had agreed to take the photos.

The U.S. Supreme Court was expected to vote on whether to accept the case during 2014-JAN. If it were to accept the case, hold hearings, and later issue a ruling that overturned the decision of the state Supreme Court, it is conceivable that their ruling could drastically weaken the human rights legislation found in all or almost all states. At least in theory:

  • It might allow restaurants to say that they will not serve meals to customers whose skin color is too dark, or

  • Allow clothing stores to refuse to sell shirts to any customers who were born in Canada, or

  • Allow banks to refuse to open a savings account because the customer is a Roman Catholic, or

  • Allow office supply companies to refuse to sell pencils to women, etc.

All the company would have to do is to say that to provide their service or sell their products to everyone without discrimination would violate their religious beliefs. That is, their religious faith requires them to discriminate against one or more groups in the community. Such a ruling by the U.S. Supreme Court would have a profoundly damaging effect to women, sexual minorities, and others, as well as on the level of harmony throughout the country.

On the other hand, if the U.S. Supreme Court were to uphold the state Supreme Court's ruling, then human rights legislation throughout the U.S. would be greatly strengthened.

Also, if the U.S. Supreme Court decided to not grant certiorari -- that is, it would not agree to accept the appeal -- it would let the decision of the state Supreme Court stand. This would strengthen existing human rights legislation to a degree.

Breitbart News quoted one Justice in the New Mexico Supreme Court as having said of the owners of Elane Photography:

"The Huguenins are free to ... pray to the God of their choice… But there is a price, one that we all have to pay somewhere in our civic life."

The Justice presumably meant that even if our religious beliefs considers a certain group -- as defined by their religion, skin color, national origin, gender, sexual orientation, etc. to be sub-human, a group unworthy of a full set of rights, profoundly evil, or a group to be shunned, when a person is in a business providing goods and services to the general public, they are required to treat everyone decently and to not discriminate.

The fundamental question is whether religious freedom in the U.S. goes beyond religious belief, religious assembly, and religious speech to also include the freedom to denigrate people or discriminate against them on religious grounds. Religious freedom is involved, but it is the religious freedom to discriminate.

A close parallel to the Elane Photography case is sometimes seen among religious conservatives where parents will on very rare occasions deny medical attention to their sick child and totally rely upon praying to God for a cure. When this has resulted in the death of the child, parents have sometimes been charged and convicted of child neglect. The basic question is the same: religious liberty gives people the freedom to believe anything they wish. They have the right to freely associate with others holding the same beliefs. In the U.S. they have the freedom to express these beliefs in speech and writing. However, there are occasionally limitations on whether they can act on these beliefs when others would be hurt or discriminated against. Some of these limitations are contained in state human rights laws.

Breitbart News reports that the:

" ADF specifically challenges the New Mexico [Supreme Court] ruling for violating the Huguenins’ First Amendment right of free speech, since it compels Elane and Jonathan to convey a message approving of gay marriage which is contrary to the Huguenins’ beliefs.

The ADF's lead counsel in the case, Jordan Lorence, said:

“The First Amendment protects all Americans from government coercion forcing them to promote ideas they don’t support. Those in power should not misuse public-accommodation laws to punish those who decline to affirm the prevailing liberal orthodoxy on marriage."

The ADF concludes that the New Mexico Supreme Court’s decision is in conflict with the First Amendment to the U.S. Constitution. Their petition to the U.S. Supreme Court states:

"Such disregard for the constitutional rights of these professionals threatens to drive them from the marketplace. Not only would that limit the expressive options available to the public, it would cost these individuals their livelihoods. Whether the First Amendment permits this result is a question that warrants this Court’s review."

Again, we find these difficult to understand for three reasons:

  • No same-sex marriage was involved in the case. The ceremony involved was an informal commitment ceremony written by the couple. Even though the ceremony was of great significance to the couple, it totally lacked any legal significance or formal theological significance. Unfortunately, many articles in the media report that Elane Photography refused to photograph an actual same-sex marriage, not a personal commitment ceremony. This seriously clouds the issue.

  • There appears to be no reason why the owners of the photographic service could not have retained their disapproval -- and even expressed their disapproval -- of anything involving a same-sex relationship and still have met the very specific requirements of the human rights legislation by accepting the photography contract. An analogous case would be a lawyer being asked to represent a client who had been charged with a crime. The lawyer is certainly free to disagree with the criminal act and yet agree to defend the client. Agreeing to represent the client in no way indicates that the lawyer approves of the client's behavior.

  • The New Mexico Supreme Court found that Elane Photography is a public accommodation. 2 That is a reasonable conclusion, since they are in business to supply photographic services to the public. Since the state has human rights legislation in place affecting public accommodation, the only conclusion an observer could rationally reach if the company had accepted the contract was that they were operating in conformance with the law. There would be no obvious indication whether the company approved of the actions of the lesbian couple or not.

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Does the Golden Rule apply here?

The mention of the "Golden Rule" in a previous essay refers to the Christian Ethic of Reciprocity which defines how humans should treat each other. It is found in various places in the Bible, including:

  • "Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets." Matthew 7:12, King James Version.

  • And as ye would that men should do to you, do ye also to them likewise." Luke 6:31, King James Version.

It is also found in all the major religions and many of the philosophical and secular systems of morality.

As applied to the Elane Photography, LLC v. Vanessa Willock case, if Elaine Huguenin had wanted to have her engagement photographed, she would have hoped that she would not have been rejected by a commercial photographer. So too, when Vanessa Willock asked for photographic coverage of her commitment ceremony Huguenin could have elected to follow the Golden Rule and accept the request. After all, since same-sex couples in New Mexico during 2008 were not allowed to marry or enter into a civil union or domestic partnership, a commitment ceremony would have been similar in significance to an engagement ceremony. But she seems to have elected to not follow the Golden Rule and to disobey the human rights legislation by rejecting the request. The ruling by the state Supreme Court simply indicates that in such cases, the Golden Rule is mandatory for persons "in a public accommodation."

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Ken Klukowski, "Same-sex marriage, religious liberty collide in case presented to supreme court," Breitbart, 2013-NOV-08, at:
  2. Ken Klukowski, "New Mexico Court: Christian Photographer Cannot Refuse Gay-Marriage Ceremony," Family Research Council, 2013-AUG, at:
  3. Lawrence Hurley, "Supreme Court declines free speech, gay marriage case," Reuters, 2014-APR-07, at:

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Copyright © 2013 by Ontario Consultants on Religious Tolerance
Originally written: 2013-AUG
Latest update: 2013-DEC-04
Author: B.A. Robinson

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