Elane Photography: ‘Paying The Price’ For Religious Freedom?

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[This story originally appeared in the November 2013 issue of Citizen magazine.]

Elaine Huguenin and her husband Jonathan never wanted to become the poster children for religious liberty in the United States.

But seven years after declining to shoot a same-sex commitment ceremony in Taos — citing their Christian beliefs — that's exactly what the Huguenins, owners of Elane Photography in Albuquerque, have become. In late August, the New Mexico Supreme Court ruled unanimously that the couple had to choose between operating their business and living according to the convictions of their faith.

The last paragraph of the decision — coming at the tail end of a four-page concurring opinion penned by Justice Richard C. Bosson — is nothing short of chilling.

"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," he wrote.

"In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship."

But according to the U.S. Constitution, that's a price too steep for anyone to be expected to pay, says Jordan Lorence, senior counsel for the Alliance Defending Freedom (ADF), which has been on the case since the outset.

"The core of what's happening to the Huguenins is basically a government action to suppress dissent and force affirmation to a specific set of beliefs," he tells Citizen. "This is a threat to basic First Amendment freedoms.

"Anyone who sees the importance of civil liberties has to be concerned about that."

Elaine Huguenin knows the stakes, and she and her husband are willing to take this case as far as they need to.

"In the U.S., we don't go through that much persecution. We aren't getting burned at the stake right now," she told Citizen in 2009, during the only interview she ever granted about the case outside of an ADF newsletter. "But this is persecution for our faith. If we paid somebody off so we wouldn't have to go through this, it would be backing down. It's not something that we're about to do."

That's why the Huguenins are asking the U.S. Supreme Court to settle the matter once and for all — for everybody. Because one thing's for certain: Conscience rights and free speech must apply to everyone equally if they are to apply to anyone at all.

Truth and Consequences

The crux of the issue in Elane Photography is the way the state Supreme Court defines the term "public accommodation." It is, Lorence says, an incorrect application of laws stemming from the Civil Rights era; the New Mexico Human Rights Act was passed in 1978.

"Public accommodations are usually referring to uniform products — stuff you sell or eat," he explains. "There was a real problem in the South of black people not being able to find a place to eat or stay, driving miles and miles in the middle of the night, and that's where this started."

But over the years, the concept of "public accommodation" has been broadened in many places to include virtually any kind of business. Tim Schultz, state legislative policy director at the Washington, D.C.-based Ethics and Public Policy Center (EPPC), confirms that about 20 states have laws like New Mexico's, where even businesses selling an inherently artistic or expressive product could be treated like sandwich shops.

"There are some commercial professions — a speech writer, a tattoo artist, an advertising agency — where there is no standard product and you have to negotiate," Lorence explains. "You have to come to a meeting of the minds to achieve (the goal). To apply a public-accommodations law to that situation is just a very bad fit."

The state Supreme Court did give the Huguenins a couple of options if they want to remain in business: Though they must photograph any homosexual couple seeking their services for same-sex unions, the court said, they don't have to allocate as much of their time to those jobs as to heterosexual weddings if they don't want to. They also can put a disclaimer on the company Web site saying they personally disapprove of same-sex unions.

That "sounds like an unnecessary imposition on the sincere religious beliefs of others—and a great way to wind up with lousy wedding photos," writes law school instructor Tamara Tabo of Texas Southern University.

In a recent blog, Tabo, who is not a social conservative, recognizes the holes in the court's logic. "Who wins in any meaningful sense (with a disclaimer)?" she asks. "Would gay and lesbian couples actually hire such a photographer, even if they knew that by law they couldn't be denied service? Is proving a political point worth ending up with terrible wedding pictures? How is that a satisfying conclusion for either the religiously motivated business owners or the same-sex couples who want their blessed days recorded and celebrated?

"Strong-arming others who differ on fundamental matters of faith and conscience should be something our society does cautiously and rarely, when at all," she concludes. "In cases like Elane Photography, neither side is served well by doing so. Sadly, ironically, this does little more than encourage less tolerance among people who disagree. Not more."

Unflattering wedding photos are the least of what might happen once a Christian business owner posts a disclaimer like that, though. This summer, Aaron and Melissa Klein were forced to close their bakery, Sweet Cakes by Melissa, in Gresham, Ore. Like the Huguenins, they cited their Christian beliefs when refusing to make a cake for a same-sex ceremony. Afterward, they faced death threats from gay activists and a boycott that didn't target only them.

"In Gresham, they threatened to boycott the (bakery's) suppliers — and then they called up the suppliers," says Bruce Hausknecht, Focus on the Family's judicial analyst. "They were pressuring everyone all the way up the chain. Economic warfare seems to be one of the tools in the LGBT box."

"They have killed our business through mob tactics," Aaron Klein told Fox News. "It's a sad day for Christian business owners and it's a sad day for the First Amendment."

Land of Disenchantment

And the problems with the New Mexico Supreme Court's ruling don't stop there: The U.S. Supreme Court, says Lorence, has already ruled that adding disclaimers to speech the government compels doesn't justify the compellation.

And then there is the troublesome fact that a broad swath of people, from gay activists all the way up to the New Mexico Supreme Court, assume that the kind of "compromise" and "tolerance" Bosson mentions in his opinion must be provided only by Christians or social conservatives.  

Take, for example, the case of the Santa Fe hairdresser who made headlines last year when he refused to do Gov. Susana Martinez's hair. Upon finding out Martinez, a Republican, does not personally support same-sex marriage, Antonio Darden, who is homosexual, left her a voicemail saying not only would he never do her hair again, but "I am going to let all gay people know (to) stop serving you, stop providing you with what you need."

And earlier this year, ADF President and CEO Alan Sears endured a situation very similar to what Vanessa Willock did when she contacted Elane Photography in 2006: While at a conference in Laguna Niguel, Calif., this summer, Sears asked his hotel to recommend a professional who could shoot a photo his family could use on their Christmas cards later. The hotel obliged — but the photographer (who ordinarily shoots weddings) responded to Sears's email by saying, "While I appreciate your inquiry, I oppose the goals and interests of your organization and have no interest in working on its behalf."

The difference, in both the Martinez and Sears cases, is that when professionals refused service based on their personal convictions, no one complained to the state Human Rights Commission. Rather, the patrons simply took their business elsewhere, and the individuals' rights were upheld.


In such a politically charged climate, where might help come from? One possibility could be the U.S. Supreme Court — but it's a long shot.

Lorence thinks there's a good chance the Court will take the Elane Photography case. "The Supreme Court has a great concern for freedom-of-speech rights," he says, pointing out that even Westboro Baptist Church — the Fred Phelps-led clan from Kansas that is perhaps best known for picketing American soldiers' funerals — won an 8-1 decision there. "So I have some hope that the Supreme Court would take this case and rule the right way."

Therein lies the rub. Hausknecht says the issues ADF plans to argue are "not clear winners," given a 1990 Supreme Court ruling that only minimally protects religious freedom. Paul Becht, an Albuquerque lawyer who filed an amicus brief in Elane Photography (see "State of Confusion," page 20), calls it "a Hail Mary."

The ruling in question, Employment Division v. Smith, held that religious freedom only rarely provides exemptions from a "neutral law of general applicability" — one that applies to everyone, regardless of their motivations, religious or otherwise. In other words, if the free exercise of one's religion is only collateral damage, and not the intended target, the law is probably going to pass constitutional muster.

"That shocked everybody at the time," Hausknecht says. "That's why when they passed the Religious Freedom Restoration Act (RFRA) in 1993, it was done by a coalition of everyone in Congress. But unfortunately, the Supreme Court later declared that the federal RFRA doesn't apply to the states, so a lot of states were left to either pass one themselves or accept the decision in Smith. So now you've got about half the states with court decisions or statutes saying they will apply the rule so that all religious exercise" is protected. 

Though New Mexico has a RFRA, passed in 2000, the high court failed to apply it in Elane Photography. And other states — including California, Colorado, Connecticut, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New York, Oregon, Vermont, Washington and Wisconsin — could find whatever religious-liberty protections they do have are similarly at risk, based on the way their public accommodations laws are written.

That means it's up to state legislatures to provide better conscience protections for people of faith in the public square — either by passing new laws or amending existing ones.

"If the people of New Mexico think their people aren't protected by their own state law," Hausknecht says, "we're kind of stuck with it until the legislature repeals or rewrites it."

Such reforms could prove very popular with voters if they're explained clearly. In a July survey of 1,000 adults, Rasmussen Reports found 85 percent of respondents believe a wedding photographer who opposes same-sex marriage on religious grounds has a right not to shoot that ceremony. Only 8 percent disagreed.

Launching those efforts will take work — and a lot of bipartisan agreement.

"We know what the politics of religious freedom are, but the worst thing would be for this to be seen as a Left-Right issue," the EPPC's Schultz tells Citizen. "It's got to transcend party affiliation. I protect religious freedom for people I disagree with. You've got to protect it, or a lot of bad things happen. It's got to be on both sides of the aisle and for people of all faiths." 

Citizen Editor Karla Dial is a native New Mexican.


To find out how strong religious-freedom protections are in your state — and what you can do to make them stronger — contact your state family policy council. Visit http://www.focusonthefamily.com/socialissues/articles/state-family-policy-councils for more information.

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