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Colliding causes: Gay rights and religious liberty

Published: Saturday, Feb. 11 2012 1:00 p.m. MST

Supporting and opposing views converge during a demonstration on the issue of Proposition 8 in San Francisco, Thursday, March 5, 2009.

Associated Press

View the Deseret News editorial "Protecting rights of conscience" here.

ALBUQUERQUE — Scrolling through her e-mail inbox on a fall day in 2006, photographer Elaine Huguenin opened a new message from a potential client expecting to rattle off prices, extra travel fees and proofing policies.

But this e-mail was different, and contained a question that would set in motion a series of events thrusting Huguenin and her photography business into court and the center of a new controversy.

Just a few years before, Huguenin had started a home-based photography business in Albuquerque with her husband Jonathan. After years of snapping pictures on summer vacations and taking pictures for family and friends, Huguenin realized it was more than a hobby — it was her calling, her way to visually explain and explore the world.

So when the young Christian couple began "Elane Photography," they agreed to never photograph anything that conflicted with their beliefs.

That's why Huguenin didn't hesitate to respond matter-of-factly to the e-mail from Vanessa Willock who asked about photographing a commitment ceremony with her long-time girlfriend.

"We do not photograph same-sex weddings," Huguenin wrote. "But again, thanks for checking out our site! Have a great day."

Three months later, Willock filed a complaint with the New Mexico Human Rights Commission, which heard the case in January of 2008. At the hearing, Jonathan Huguenin told the commission about their business assumptions:

"We wanted to make sure that everything we photographed — everything we used our artistic ability for, everything we told a story for or conveyed a message of — would be in line with our religious beliefs."

Huguenin explained that taking the assignment would have meant promoting something she believes is morally wrong.

The state's human rights commission was unmoved and found Huguenin guilty of discrimination. She was ordered to pay over $6,000 — the costs of Willock's attorneys.

The decision received little media attention outside of Albuquerque and even now, gay rights advocates brush off the case as an anomaly. But in the five years since that e-mail, Huguenin has become a poster child for the growing conflict between same-sex marriage and the rights of people of faith — a conflict that experts say is negatively affecting the rights of religious individuals and organizations to live their faith freely and without fear of punishment.

Similar cases are popping up across the country, from Illinois to New Jersey, though most only garner a few local headlines and little national attention.

*In 2008, a lesbian couple asked a Methodist group for permission to use an open-air pavilion for a civil union ceremony in Ocean Grove, New Jersey. The church turned down their application, explaining that they consider the pavilion an extension of their church, a sacred place where members and individuals from the community gather for Bible study, Sunday worship services and choir performances, as well as occasional weddings. Soon after, the couple filed a complaint with the New Jersey Division of Civil Rights, and the Church lost a state-provided tax exemption for public areas of recreation or conservation. A few weeks ago, an administrative law judged ruled that the church couldn't discriminate between heterosexual couples and homosexual couples wanting to use their pavilion for weddings because their pavilion had been considered a public place.

*In November, wedding-cake maker Victoria Childress told a lesbian couple who came to her home-based business in Des Moines that as a Pentecostal Christian she would not be able to make a cake to celebrate their wedding, which she defines as the union of one man and one woman. Shortly after, the couple told a local TV station they felt discriminated against, and later mentioned they were contemplating a lawsuit. Even though they chose not to pursue legal action, gay-rights groups have boycotted Childress' business and she says she's been inundated with letters and e-mails from people who either praise her decision or condemn her a bigot.

*And last February, Jim and Beth Walder, owners of Timber Creek Bed & Breakfast in Illinois, were hit with a civil rights complaint when they declined to host a same-sex civil union because of their religious beliefs. They are awaiting a hearing this summer on the allegation of discrimination, and if they lose they could face a hefty fine, similar to the Huguenins'.

"There's a crusade to drive out people with traditional views of marriage and intimidate them in to silence," said the Huguenins' attorney Jordan Lorence of The Alliance Defense Fund, a Christian legal alliance based in Scottsdale, Ariz., that defends the right of individuals to freely live their faith. "That is not pluralistic, not diversity-oriented … and is not consistent with the First Amendment."

The debate over same-sex marriage has been centered on equality, but Lorence and others — including those who support non-discriminatory hiring and housing policies for gays — worry that the push for tolerance in the name of equality is going too far, forcing individuals of faith to compromise their religious beliefs.

Just this week, the U.S. Ninth Circuit Court ruled that Proposition 8 — an amendment to California's constitution defining marriage as the union of one man and one woman — was unconstitutional. Supporters of the Proposition have been labeled bigots and even attacked, and their churches have been picketed and vandalized.

Catholic Charities of Illinois lost millions in state funding when they refused to place children with homosexual couples. Catholic Charities of Massachusetts stopped doing adoptions in 2006 for the same reason, and in Michigan, graduate student Julea Ward was kicked out of a counseling program because she declined to promote homosexual relationships in discussions with a gay client.

"Our nation, for a very long time, has treated with great deference and respect the views of people who believe in traditional morality, but now they're no longer being listened to or treated like they're fully capable of participating in the national debate in some way," said Bill Duncan, director of the Marriage Law Foundation, a Utah-based non-profit. "The conflict between legal recognition of non-marriage relationships is going to be the most significant, immediate challenge to the ability of religious believers to act on their beliefs in the public square."

LEGAL PROTECTIONS

For many people, the discussion about same-sex marriage is still a somewhat amorphous moral argument, says Luke Goodrich, an attorney with the Becket Fund for Religious Liberty, based in Washington, D.C. That is, until he explains what is happening to people like Elaine Huguenin, Victoria Childress and the Ocean Grove Methodists.

"(Then they say), 'Oh wow, I go to a church that has a pavilion,' or 'I had a wedding photographer,'" Goodrich said. "They see that wherever same-sex marriage is legalized without religious liberty protections, it's going to have these problems."

Six states or districts have legalized same-sex marriage — Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont and Washington D.C., with a handful of additional states that allow same-sex civil unions. Washington is set to become the seventh state to legalize same-sex marriage after its Senate and House recently passed such a bill. The governor plans to sign the bill Monday.

"Same-sex marriage hasn't been legalized in many places, but in only a few years a few concrete examples (of religious liberty conflicts) have arisen," Goodrich said. "We have every reason to expect there will be more examples in the future."

However, gay-rights advocates dismiss this "sky is falling" mentality and say conflicts like the Huguenins' are under-representative and over-cited.

"It's a right-wing talking point to stoke up fears for something that's not a problem," said Evan Wolfson, president of Freedom to Marry, a group dedicated to promoting same-sex marriage. "There's only one or two isolated examples (of clashing) as to how this has even been an issue. We settled this question in the country decades ago when businesses were saying 'We don't want to serve blacks or Jews, Latinos, Mormons,' and (the country) said 'No, when you're a business opening your doors to the public, you have to serve everyone. That's (called) non-discrimination in a democratic society.'"

But in a review of more than 1,000 state laws prohibiting discrimination on the basis of sexual orientation, gender or marital status, the Becket Fund for Religious Liberty discovered that 350 of those laws would be triggered, or become applicable for lawsuits, by the recognition of same-sex marriage.

That means that when individuals of faith decline to host a same-sex wedding in their catering hall, or refuse to provide health insurance benefits for a same-sex spouse, they can, and likely will be sued under one of those now-active 350 "anti-discrimination laws — laws never intended for that purpose," according to the 2009 report.

After all, when anti-discrimination laws were written, same-sex marriage wasn't even an issue, explains Robin F. Wilson, a law professor at Washington and Lee University School of Law and a co-editor of the 2008 book, "Same-Sex Marriage and Religious Liberty: Emerging Conflicts."

Back then, discrimination was about "burgers and taxis," Wilson says. "If I'm gay and you don't want to hand me a burger at Hardee's, it's hard to explain why — there can't be any real, moral conviction about a hamburger, it evinces an anti-gay animus."

But now, the issue is much broader than just getting lunch or a ride — it's about defining marriage, a topic that evokes deeply held religious beliefs. So, if someone doesn't want to participate in a same-sex wedding, whether they're a baker, a photographer or a town clerk, that doesn't necessarily mean they're anti-gay, Wilson says, it just means they have religious objections to participating in, and by extension condoning, same-sex marriage.

To protect those people, Wilson and her colleagues — who vary on their opinions of whether same-sex marriage should be legalized but who all support religious exemptions — wrote out several examples of protections and sent their ideas to New York legislators during their recent discussion of the issue.

The professors suggested that small business owners, individuals and religious organizations be protected against lawsuits if they refuse, on religious grounds, to help with a same-sex wedding or provide benefits or housing to same-sex couples.

(Such protections would be nullified if the gay couple couldn't get the good or service somewhere else without significant hardship — for example, the only tuxedo shop for 400 miles couldn't refuse to serve a gay couple.)

Thus far, legislators have only allowed exemptions for members of the clergy or big religious organizations.

While such protections are often touted as generous, they're actually "fake," says Wilson, since bishops, priests, rabbis and other religious leaders are already protected under the First Amendment from being required by the government to perform marriages that violate their tenets.

Yet some people of faith accept the clergy exemption gratefully, figuring that something is better than nothing, said Barrett Duke, vice president for public policy for the Southern Baptist Ethics and Religious Liberty Commission.

"If we (clergy members) take that carve-out to protect our own professional integrity, we are giving up the fight for the sake of all the faithful folks in our congregation who aren't going to get any protections," he said.

Duke worries that without sufficient religious protections in same-sex marriage laws, parents won't be able to speak up against changes in school curriculum that include teachings about homosexuality and same-sex marriage, as is happening in California, or that employees who share their opinions against same-sex marriage may face penalties or even the loss of their jobs. Duke even questions whether people of faith will have a harder time running for public office, "because if same-sex marriage is legal and they oppose same-sex marriage, they could be accused of not being able to fulfill the requirement of upholding all of the law."

THE CORE OF THE ARGUMENT

For many individuals, the question of same-sex marriage creates an unbridgeable opinion divide, an issue where little can be solved by trying to find common ground.

Yet others are pushing toward a compromise, trying to ensure the rights of all.

"Sexual orientation and marriage and religion are just part of human identity, the very core of who people are and there ought to be a way to protect both," said Douglas Laycock, a professor at the University of Virginia School of Law and co-editor with Wilson of "Same Sex Marriage and Religious Liberty: Emerging Conflicts."

"We can't get there when gay rights views religion as their enemy, and with some good reason, because religion has acted like their enemy," he said. "Nor can we if religion views same-sex relations as horrible, terrible, immoral. Until we're willing to apply the American tradition of 'live and let live' to this dispute, I don't think we're going to get to religious liberty protections as the solution to the disagreement."

Laycock said the problem right now is that each side wants liberty for itself but nothing for the other side, which not only prevents progress, but also creates bitter feelings. So rather than holding out for a total victory, both sides should look for ways to give and take.

There have been some harmonious steps, like the ordinance passed by the Salt Lake City Council in 2009, which outlawed discrimination against gay and lesbian couples for housing and employment rights.

"The (LDS) Church supports this ordinance because it is fair and reasonable and does not do violence to the institution of marriage," LDS Church spokesman Michael Otterson said in a City Council meeting.

"It is also entirely consistent with the Church's prior position on these matters," he continued. "The Church remains unequivocally committed to defending the bedrock foundation of marriage between a man and a woman. I represent a church that believes in human dignity, in treating others with respect even when we disagree — in fact, especially when we disagree."

In the end, both sides should be in favor of protecting liberty and the rights of conscience, says Thomas Berg, a professor of law and public policy at the University of St. Thomas School of Law at Minnesota. After all, same-sex marriage supporters are asking that society "make room for people to live consistent with their identity and not just do it in the closet," Berg said. "Marriage is really a recognition of a right to live out your identity in public. The religious objector makes the same claim; they don't want to be limited to following their faith in the church."

Back in New Mexico, the Huguenins are gearing up for spring wedding shoots and an unscheduled but looming future court date. They're also trying to stay positive amid the hateful e-mails and negative blog posts.

"They are just trying to live their lives according to their Christian convictions," said Lorence, their ADF attorney. "They are not on any sort of crusade to hurt anybody. (This) whole concept of discrimination … is being used as a weapon to silence people who have differing views on hotly contested cultural issues."

EMAIL: sisraelsen@desnews.com

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