The collision between religious freedom and the demands of equality continues, this time in New Mexico.
In Elane Photography v. Willock, the New Mexico Supreme Court ruled Aug. 22 that Elane could not refuse to photograph a same-sex wedding. Since Elane was a business that provided photography services to the general public, it could not, under New Mexico’s Human Rights Act, refuse to provide such services to any of the classes of persons protected under that law.
The court recognized the gravity of its decision; in a “special concurrence,” Justice Richard Bosson wrote, “[t]hough the rule of law requires [ruling against Elane], the result is sobering. It will no doubt leave a tangible mark on the Huguenins [Elane’s owners] and others of similar views.” Indeed it will, but it did not have to be this way, as some of the participants in the case, such as the Becket Fund for Religious Liberty, have pointed out. Instead, the decision leaves religious businesses open to continued attack, precisely because they are attempting to live out their religious beliefs.
New Mexico, like many states, has a law banning discrimination against people based on certain specific characteristics, such as race, religion or sexual orientation, by all businesses that provide services to the public. The Huguenins were contacted by email from a same-sex couple who wanted Elane to photograph a commitment ceremony. The Huguenins, because of their religious beliefs, objected.
Even though the couple was able to find a photographer in time for their ceremony, they still complained to the New Mexico Human Rights Commission, which found that Elane had violated the Hman Rights Act. The case then proceeded through the courts. The Supreme Court found that the Huguenins simply did not have a religious-liberty claim; no one was making them say something contrary to their religious beliefs, and, as a public business, the court found no one would believe the Huguenins endorsed same-sex marriage simply by being hired to photograph one.
This case confronts two central facts of the America experience. First, because of the dominance of “equal rights” and “anti-discrimination” laws, conflicts that could otherwise be handled privately instead are transformed into rights claims. It is unclear, for example, why the couple complained to the government if they were able to find another photographer or why they did not respect the Huguenins’ desire to decide to whom they could offer their services.
The idea that rights claims must be asserted in all circumstances has overwhelmed the tradition American attitude of tolerance towards those whose beliefs differ and has become too engrained in American society to let even the smallest private arrangements escape. This change in attitude is compounded by the fact that, in a pluralistic society, not all rights are protected equally; as the disputes over the HHS mandate show, rights claims can be used offensively to deprive others of their liberty as well as defensively against state claims. Indeed, as this case and the HHS controversy show, a secular liberal state may simply be incompatible with religious liberty as it has been understood in the West for centuries.
The second fact is historical. As the concurrence points out, America has a dark history in excluding portions of the population from the public square, and the concurrence explicitly connects the couple’s claims to those of the civil-rights era. For the New Mexico court, this case is simply a contemporary analogue to the civil-rights cases of the 1960s. If whites excluded African-Americans in the 1960s from their businesses, Christians are attempting to do that today with other groups. In both cases, the state must step in and prevent both groups from exercising their liberty in the name of anti-discrimination.
It is this fact that makes the case difficult for Christians. There is no place for bigotry in American life, and to side with Elane might leave open the possibility, for example, that those with religious biases against Catholics could refuse to serve them. This may be a price to pay for the fullest protection of religious liberty, but it is not one many Americans wish to contemplate.
But the court’s analogy is wrong. In fact, as the Becket Fund notes, religious liberty has long been recognized as occupying a unique place in the American civil landscape. Indeed, New Mexico has a law — the state’s Religious Freedom Restoration Act (RFRA) — expressly designed to provide an outlet for religious persons whose exercise of their religious freedom has been burdened. The court dismissed this argument because it found that that law only applied if the government is a party. Here, since the suit was between private parties, the court found the law did not apply. To the contrary, however, private parties like Elane can invoke the protections of RFRA when a private plaintiff enforces a federal or state law that burdens the religious exercise of people such as Elane.
The New Mexico Supreme Court badly misjudged the application of RFRA and has harmed the Huguenins and all believers in New Mexico. It remains to be seen how aggressive other states will be in forcing their views of equality on religious believers, but the signs are not hopeful.
Gerald J. Russello is a lawyer and editor of The University Bookman.