The U.S. Supreme Court today rejected a request to consider Elane Photography v. Willock, a case brought by a wedding photography business that had been penalized for violating a New Mexico law against discrimination on the basis of sexual orientation. After the New Mexico Supreme Court unanimously rejected its free speech and religious liberty claims, the company appealed to the U.S. Supreme Court on the grounds that taking pictures is expressive activity protected by the First Amendment, and that the government has no right to force a photographer to take a particular picture. The Supreme Court declined to take the case.
People For the American Way is committed to religious liberty, freedom of expression, and LGBT equality, and recognizes that people who support both religious freedom and full legal equality for LGBT people can and do disagree on where lines should be drawn in such cases. A small business person who wants to run a business that reflects their values can be a sympathetic figure. Some believe a mom-and-pop company whose owners have religious objections to same-sex marriage should have the right to turn away a gay couple under those circumstances. But it is hard to identify a legal principle by which a business covered by an anti-discrimination law would be allowed to ignore the law on the basis of the owner’s religious beliefs on marriage, but not on the basis of his religious beliefs on segregation or gender inequality.
The tension between the rights of a business owner and the ability of a legislature to ban discrimination as a matter of public policy finds eloquent expression in New Mexico Supreme Court Justice Richard C. Bosson’s concurrence in the Elane Photography case. The court unanimously upheld a finding by the state’s Human Rights Commission that refusing to provide services to a same-sex couple had violated anti-discrimination law. Bosson wrote that the court’s ruling means that the business owners “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.”
More from Bosson’s opinion:
On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins [the business owners] 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. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life…In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs , so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.
Bosson’s opinion recognizes that there are competing interests at play and that can make line-drawing difficult. He treats the religious liberty questions respectfully.
Of course, that hasn’t stopped Religious Right from portraying the decision, and Bosson’s opinion, as pure tyranny. A lawyer for the Alliance Defending Freedom called the decision “a blow to our client and every American’s right to live free.” Cases in Colorado and Oregon involving bakery owners that declined to make a wedding cake for a same-sex couple and faced punishment for violating anti-discrimination laws have generated similar rhetoric.
Most Americans do not see tyranny in the balancing act that legislatures and courts are engaged in. They believe the principle staked out in PFAW Foundation’s Twelve Rules for Mixing Religion and Politics: it is legitimate for government to require religious organizations and individuals to abide by rules and regulations that promote the common good. A poll conducted by Third Way and HRC just before the U.S. Supreme Court decision overturning the Defense of Marriage Act found that 68 percent of Americans believe that small business owners should not be allowed to refuse service to gays or lesbians, regardless of their religious beliefs. When asked specifically about wedding-related services like catering, flowers, or cakes, nearly as many – 64 percent – were opposed to laws that would allow small businesses to deny services based on their religious beliefs.