Written by Ryan T. Anderson, The Heritage Foundation
Last Thursday, the Supreme Court of New Mexico ruled that the First Amendment does not protect a Christian photographer’s ability to decline to take pictures of a same-sex commitment ceremony—even when doing so would violate the photographer’s deeply held religious beliefs. As Elaine Huguenin, owner of Elane Photography, explained: “The message a same-sex commitment ceremony communicates is not one I believe.”
But New Mexico’s highest court, deciding an appeal of the case, agreed with the New Mexico Human Rights Commission and ruled against Elane Photography, concluding that neither protections of free speech nor free exercise of religion apply.
Elaine and her husband Jon, both committed Christians, run their small photography business in Albuquerque, N.M. In 2006, she declined the request to photograph a same-sex commitment ceremony. In 2008, the New Mexico Human Rights Commission ruled that by declining to use its artistic and expressive skills to communicate what was said and what occurred at the ceremony, the business had engaged in illegal discrimination based on sexual orientation.
The commission ruled this way based on New Mexico’s human rights law, which prohibits discrimination in public accommodations (“any establishment that provides or offers its services … or goods to the public”) based on race, religion and sexual orientation—among other protected classes.
Elane Photography didn’t refuse to take pictures of gays and lesbians, but only of such a same-sex ceremony, based on the owners’ belief that marriage is a union of a man and a woman. New Mexico law agrees, as it has no legal same-sex civil unions or same-sex marriages. Additionally, there were other photographers in the Albuquerque area who could have photographed the ceremony.
Groups supporting Elane Photography filed friend-of-the-court briefs. The Cato Institute argued that, under the First Amendment, photographers have freedom of speech protections against government-compelled artistic expressions. The Becket Fund argued that New Mexico’s Religious Freedom Restoration Act protects the “free exercise” of Elane Photography. The Alliance Defending Freedom—the lawyers defending Elane Photography—also argued that the First Amendment’s free exercise clause protects their client.
Thursday’s decision highlights the increasing concern many have that anti-discrimination laws and same-sex marriage run roughshod over the rights of conscience and religious liberty. Thomas Messner, a visiting fellow at The Heritage Foundation, has documented multiple instances in which laws forbidding discrimination based on sexual orientation, as well as laws redefining marriage, already have eroded religious liberty and the rights of conscience. Indeed, earlier this year, the United States Commission on Civil Rights held an entire hearing on conflicts between nondiscrimination policies and civil liberties such as religious freedom.
In a growing number of incidents, government hasn’t respected the beliefs of Americans. Citizens must insist that government not discriminate against those who hold to the historic definition of marriage. Policy should prohibit the government—or anyone who receives taxpayers’ dollars—from discriminating in employment, licensing, accreditation or contracting against those who believe marriage is the union of a man and a woman.
We also must work to see marriage law reflect the truth about marriage. If marriage is redefined, believing what virtually every human society once believed about marriage—that it is the union of a man and a woman ordered to procreation and family life—would be seen increasingly as an irrational prejudice that ought to be driven to the margins of culture. The consequences for religious believers are becoming apparent.