Nobody believes that people should not have religious freedom. The question is how do we best protect both civil liberties and religious freedom. —Evan Wolfso
In a conflict between a gay couple’s nondiscrimination rights under New Mexico law and a photographer's religious beliefs, the U.S. Supreme Court stepped aside on Monday, refusing to hear the case, at least for now.
At stake was the case of photographer Elaine Huguenin, who was fined $6,638 in New Mexico after she declined to photograph a same-sex commitment ceremony. Huguenin argued that wedding photography is storytelling, and that coerced “expressive speech” violated her First Amendment protections.
“Something that should never be beyond the pale in this country is free speech — no matter what the speech is, whether you agree with it or not,” said Austin Nimocks, senior counsel for the Alliance Defending Freedom, an Arizon-based religious liberty legal organization, which represented Huguenin in the case.
Noting that the Supreme Court has long upheld rights to engage in “the most vile and disgusting speech,” Nimocks argued that a court that upholds the right to anti-Semitic or racist speech would be oddly positioned if it allowed a state to coerce speech from an artist.
Gay rights proponents widely hailed the court’s decision not to hear the case, viewing it as a confirmation of New Mexico's antidiscrimination law. Huguenin's supporters, meanwhile, said that accommodations must be found in the political arena.
“You never know why the court grants or denies certiorari,” Nimock said. “What is clear is that it is not up to the people and legislators of New Mexico to remedy the law to be more tolerant toward speech protections."
Space for politics
Ed Whelan, president of the Ethics and Public Policy Center and a prominent traditional marriage advocate, called the court’s decision to not hear the case “disappointing but hardly surprising.” The court usually looks for some kind of conflict between lower courts, and is likely waiting for the conflict to distill, Whelan said, and will often stand back until the issues develop more fully.
The ADF is purely a legal defense fund, he said, and does not engage in politics, so once the courts wash their hands of it, the ADF's job is done.
And that’s just fine with Jonathan Rauch, a senior fellow at the Brookings Institution and a prominent gay rights advocate. The Supreme Court’s refusal to hear the case is significant, Rauch said, precisely because it allows breathing room for the states to work out these issues on their own.
“The big news is that the court is saying it is too early to respond to this issue with a hammer,” Rauch said. “The court is saying it’s premature to issue a constitutional standard on this for the next 50 to 100 years.”
Civil rights logic
Rauch differs from some gay rights supporters in that he hopes for a political accommodation that stops short of the kind of total victory that drives disagreement off the field.
But Evan Wolfson, president of Freedom to Marry, one of the driving forces in the gay marriage movement, sees the New Mexico dispute as a "distraction" promoted by gay marriage opponents who are losing the main battle and trying to muddy the water.
“Nobody believes that people should not have religious freedom,” Wolfson said. “The question is how do we best protect both civil liberties and religious freedom.”
In Wolfson’s view, there is an unbroken line running from the 1964 Civil Rights Act barring racial discrimination in public accommodations such as hotels or restaurants, the rise of gender equality laws in the 1970s, and now the move in states like New Mexico to extend the same protections to sexual orientation.
“What’s being challenged,” Wolfson said, “is the logic of civil rights and nondiscrimination laws. When you open a business and hold yourself out as open to the public, everyone has the ability to go into that business and be served without discrimination. This is very different from what we are free to believe. When you open a business to the public you serve the public.”
Rauch disputes Wolfson’s linking of the New Mexico dispute to the 1964 Civil Rights Act. “There is a social re-negotiation happening in a healthy way,” Rauch said, “but politically we are nowhere near the kind of consensus that had emerged by the 1960s on racism.
“It is still possible to say that women have a different role and should say home with young children,” Rauch said, “and there are still clubs for men and clubs for women. There are no bombs going off, no kids not going to school.
“Race is different from everything else in America,” Rauch said, “and when you compare anything else to race, you are making an analytical mistake.”
But equation of race and sexual orientation does not surprise Whelan.
“They routinely equate support for the position on gay marriage that Barack Obama claimed just two years ago with supporting bans on interracial marriage," Whelan said. "Their aim is to stamp out any dissenting views on what marriage is."
Reversing the photography case makes an interesting thought experiment, Whelan suggests.
“Wouldn’t we respect the rights of a gay photographer to refuse to provide services to a couple getting married in a church that refuses to allow gay marriage?” he asked.
In either case, Whelan asks, why would the couple want to be photographed by someone who did not want to be involved? And as Nimocks points out, the record shows that the couple quickly found a photographer willing to shoot the event at a lower price than Huguenin.
But it wasn’t really about finding a photographer, Rauch argues. “It was about the sting of being told to get out of the shop." (The exchange between the photographer and the customer occurred via email, in this case, so Rauch's comment is metaphorical.)
Whelan’s political balancing, if he had his way, might involve rethinking how we collectively view such stings, and with it the whole structure of antidiscrimination policy.
Whelan agrees with Rauch that racial discrimination holds a distinctive place in the American political psyche but he argues that other types of discrimination might be better left to market forces. Reaching accommodation in a diverse society might, he said, require even relaxing protections against religious discrimination, for example.
“Many of us think that being discriminated against on religious basis is ugly,” Whelan argued. “If you are an employer who dislikes Catholics or Mormons, that’s ugly behavior on your part. But we believe the market will provide a corrective by valuing the very people whom you devalue.”
“The Supreme Court’s denial of certiorari here allows the debate to go on,” Rauch said. “I have no significant doubt about the outcome. In a few years there will be very few places that will discriminate against gays.”