A rapidly growing series of conflicts over religious freedom/liberty
involving members of the LGBT
goods and services:
Who are most commonly involved in the conflicts?
The conflict between Elane Photography and a
couple in New Mexico
The term "LGBT" refers to the Lesbian, Gay, Bisexual, Transgender and Transsexual community.
Who are most commonly involved in the conflicts?
On the one hand, there are one or more members of the LGBT community who wish to go to a store or business, often seeking to buy some goods or services for a same-sex wedding. This often includes wedding photography, wedding cakes, wedding gowns, hall rentals, etc.
On the other hand are the owner(s) of the store or business, some of whom are social or religious conservatives. The latter owners occasionally find that they cannot honor such a request because of their religious beliefs about homosexuality and the nature of marriage. Although the conflict occurs most commonly when supplies and arrangements for a same-sex wedding (SSM) are involved, it can happen with any other event as well.
As the number of states that attain marriage equality increases, the number of conflicts will probably increase as well.
2006: A typical example: a high-profile conflict between Elane Photography and a same-sex couple in New Mexico:
In 2006, Vanessa Willock, a lesbian, approached Elane Photography in Albuquerque, NM, asking that they photograph a commitment ceremony written by Vanessa and her partner. It is important to note that:
- The ceremony was not a same-sex marriage. The state did not allow such marriages at the time. As of mid-2013-DEC, some same-sex marriages have been sanctified in New Mexico. However their legality is currently being decided by the New Mexico Supreme Court who are expected to issue a ruling later in 2013-DEC.
- The ceremony also did not involve a civil union. The state did not allow such unions at the time and still doesn't.
- The ceremony was written by the couple themselves as a simple expression of their commitment to each other.
- The ceremony had no significance in New Mexico law. Both before and after the ceremony in 2006, the state government considered the couple to be "legal strangers" -- as simple roommates. The state did not recognize their relationship at all.
Elane Photography is a "public accommodation" in New Mexico. That means that they were in business to supply a service or product to the general public. That makes them subject to the human rights legislation of the state which requires public accommodations to treat all potential customers equally. Companies are not allowed to discriminate against customers on the basis of their race, skin color, religion, gender, national origin, sexual orientation, etc.
The company presumably knew about the human rights legislation in New Mexico, but decided to refuse the contract to take photographs of the ceremony. Because of their religious beliefs, and their faith group's interpretation of key biblical passages regarding same-gender sexual behavior, they felt that they had to reject the contract. They ended up before the New Mexico Human Rights Commission. They were found to have engaged in sexual orientation discrimination which is prohibited under the state Human Rights Law for public accomodations. This ruling was affirmed by the state appeals court and also by an unanimous ruling of the New Mexico Supreme Court. The owners of Elane Photography were required to pay $6.637.94 to the two women to cover their attorneys' fees. 1
The case is somewhat more complex than the usual instance of discrimination against LGBTs by religious conservatives. Elane Photography sells the creative abilities and artistic expression of its co-owner Elaine Nyuguenin. Thus the denial of services involves freedom of expression issues, that are not really present in most conflicts involving retail outlets.
The opinion issued by the New Mexico Supreme Court stated:
"Elane Photography argues that it would have taken portrait photographs and performed other services for same-sex customers, so long as they did not request photographs that involved or endorsed same-sex weddings. However, Elane Photograph’s owners testified that they would also have refused to take photos of same-sex couples in other contexts, including photos of a couple holding hands or showing affection for each other. Elane Photography also argues in its brief that it would have turned away heterosexual customers if the customers asked for photographs in a context that endorsed same-sex marriage."
This is strange testimony by the owners, because it should have been clear to everyone that no same-sex marriage ceremony was involved. It was just a personally written commitment ritual, devoid of legal significance.
The Court's opinion also stated:
"When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA [New Mexico Human Rights Act] in the same way as if it had refused to photograph a wedding between people of different races.
Even if the services it offers are creative or expressive, Elane Photography must offer its services to customers without regard for the customers’ race, sex, sexual orientation, or other protected classification." 7
Justice Richard C. Bosson wrote a concurring opinion, stating that the case:
"... provokes reflection on what this nation is all about. [The company's refusal] no matter how religiously inspired, was an affront to the legal rights of that couple.
All of which, I assume, is little comfort to the Huguenins, who now are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views." 5
Jordan Lorence, Senior Counsel of Alliance Defending Freedom -- a conservative legal defense group -- had defended Elane Photography in court. He said:
"The idea that free people can be 'compelled by law to compromise the very religious beliefs that inspire their lives' as the 'price of citizenship' is a chilling and unprecedented attack on freedom. We are asking the U.S. Supreme Court to make it clear that no American has to abandon their constitutionally protected freedoms just to make a living. No American should be punished or put out of business simply for disagreeing with the government’s opinion on a moral issue."
"Every artist must be free to create work that expresses what he or she believes and not be forced by the government to express opposing views,” added Legal Counsel Jim Campbell. “Should the government force an African-American photographer to take pictures of a KKK rally? A government that can force anyone to promote messages against his or her will is a government out of control."
Lorence and the owners of Elane Photography appear to conclude that to document an event or ritual with pictures automatically implies that they approve of the event or ritual. It could indicate approval. But on the other hand, it might indicate owner(s) a photographic service who absolutely detested the event or ritual but was merely following the Human Rights act of the state.
In contrast, the American Civil Liberties Union argued that:
"... taking photographs for hire is a commercial service subject to commercial regulation. A commercial business cannot solicit customers from the general public to buy its services as a photographer for hire and then claim that taking those photographs is a form of its own autonomous expressive activity." 2
One of the plaintiffs, Willock, issued a statement through her lawyer, saying:
"I am grateful for and applaud the wisdom and thoughtful, thorough work of New Mexico’s highest court. The court has ensured that we may all walk with dignity and participate fully as equal citizens in the business life of our Great State." 5
During 2013-NOV, Alliance Defending Freedom asked the U.S. Supreme Court to accept the case. If they grant certiorari, hear the case, and subsequently decide in favor of the defendants, then the human rights legislation in every state could be profoundly weakened. Public accommodations could then simply claim that their desire to discriminate against a customer -- on the basis of their skin color, race, gender, sexual orientation, etc. -- was based on their personal religious beliefs. If this seems far-fetched, then consider the theological foundation that justified racial segregation in the U.S. South decades ago. It was largely based on the belief that God created all the different races of humans separately, placed them in different locations in the world, and intended that they remain separate forever.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Jordan Lorence, "Fact Sheet: Elane Photography v. Willock," Alliance Defending Freedom, 2013-NOV-18, at: http://www.adfmedia.org/ This is a PDF file.
- "Elane Photography, LLC v. Vanessa Willock," American Civil Liberties Union, 2012-DEC-18, at: https://www.aclu.org/
- "Section 28-1-2 - Definitions," Laws.com, at: http://statutes.laws.com/
- "Section 28-1-7 - Unlawful discriminatory practice," Laws.com, at: http://statutes.laws.com/
- Jacob Gershman, "Photographers Discriminated Against Gay Couple, Court Rules," Wall Street Journal, 2013-AUG-25, at: http://blogs.wsj.com/
- Ryan T. Anderson, "Same-Sex Marriage Trumps Religious Liberty in New Mexico," The Foundry, 2013-AUG-22, at: http://blog.heritage.org/
Copyright © 2013 by Ontario Consultants on Religious
Originally written: 2013-DEC-14
Latest update: 2013-DEC-16
Author: B.A. Robinson