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Another Disaster for Religious Freedom in the Courts Print E-mail
By Hadley Arkes   
Tuesday, 27 August 2013

Another week, and another disaster for the cause of religious freedom litigating in the courts.  This past week the Supreme Court in New Mexico sustained the penalties meted out to Elaine and Jonathan Huguenin in Albuquerque when they declined to take photographs for the “wedding” of two women. [Elane Photography v. Willock]   The Huguenins were charged with violating a law that barred certain discriminations on the part of people in business, engaged in transactions with the public – in this case a discrimination based on “sexual orientation.”  

The Huguenins were willing to take pictures of all kinds of persons, but they were averse to taking pictures of two men or two women holding hands or engaged in gestures that marked a homosexual relation.  And so it became clear to the judges that, behind the refusal to take photos at a same-sex marriage, was a deep aversion, a disapproval of the homosexual relation, and that is what put the Huguenins in violation of the law.

The Huguenins invoked the claim of religious freedom, and once again the argument played out in this way:  The offense lay in refusing to recognize the rightness of the homosexual relation, and to visit on the couple the sting of reproach.  The protection of the same-sex couple now claimed the moral ground, the ground of rightness, and against those claims the Huguenins offered only religious “beliefs.”

And we must ask:  How many times must we have the same experience played over again before our friends litigating these cases come to the recognition that they need seriously to consider a recasting of the argument?   I have been joined by my friend Frank Beckwith in these columns in making the plea:  that we need to move beyond the claims of “belief” and come forth with the reasoning that would make our position defensible even to those who do not share our religious faith.    

In that move we would recover also the understanding that Benedict XVI sought to restore in the Regensburg Address:  “Not to act in accordance with reason is contrary to God's nature,” for “in the beginning was the logos, and the logos is God.”

But that move would also pose a challenge to the other side as we recover the classic understanding of the moral ground of the law:  those who would impose laws on others need to establish the justification then for overriding the private judgments made by individuals on the things that make their own positions rightful and defensible.


The Huguenins

As the matter comes into play, say, with these cases on “sexual orientation,” we would point out at once that the law gives no clear account of what it would forbid.  The term “sexual orientation” is so abstract that it could include sex with animals or small children. Even the Gay Rights Parades have been reluctant to include the Man-Boy Love Association or the pedophiles.

The activists may retreat to the claim that the “sexual orientation” must be confined to “consenting adults,” but that doesn’t meet the point.  The pedophiles regard their orientation as quite legitimate – for if the matter is merely one of pleasure, the 15-year-old boy knows what gives him pleasure as well as anyone else.   The plain fact is that even the partisans of gay rights admit that certain orientations may be illegitimate.

If we had a man seeking to become an adoptive father, would we not have reservations about putting children into his hands if he acknowledged that he was deeply engaged in sado-masochistic sex or confirmed in the practice of pedophilia?  Which is to say:  Would it not be thoroughly defensible to draw certain morally adverse inferences about someone’s “sexual orientation”?  And would that judgment not translate into adverse judgments in the law – as in denying to this man the privilege of becoming an adoptive father?

But if all of this is tenable, it should be clear that there is no ground of justification for a law that would bar, in a sweeping way, all discriminations based on sexual orientation.  In that case, we would challenge the legislators to come forth with a more precise sense of the wrong they would forbid.  What would they put in place of discriminations based on “sexual orientation”? 

There is no ready or plausible answer.  It cannot be that it is wrong to find fault with “the way in which people achieve orgasmic pleasures,” for that formula could encompass rape as well as many other things from which even liberals recoil. Years ago we were told that this matter of sexuality was mainly a matter of “personal taste” and it would be inapt to cast moral judgments. 

And yet, if it is a matter of taste, then the claim is sufficiently countered by the report that the Huguenins do not share that taste.  If it is a matter now of casting judgments, then the Huguenins deserve to hear the compelling reasons that would justify the law in claiming that there is nothing tenable or defensible in the convictions they hold about the homosexual life and same-sex marriage.

In a comparable way, we would demand that law show what reasons it has for rejecting, as untenable, the reasons held by those who would reject the “contraceptive culture.”  The recasting of our arguments may rightly begin here, in restoring the sense of the moral demands that have to be met by anything calling itself “law.”

 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
 
 
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Comments (24)Add Comment
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written by Achilles, August 27, 2013
This has gone too far, it is sad to see a beautiful young couple stung with a setback like this because of a perversion like ss acts, it is reprehensible, degrading and disordered. Please Mr. Arkes, give us these arguments and let's get to shouting them from the rooftops.
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written by Jack,CT, August 27, 2013
Mr Arkes,
I was totally with you with your first
paragraph but why the hell did you go down the
dark places you did in an ill attempt to make
the point two woman should not be captured hold-
ing hands in a picture?
I happen to agree people should have the right to
refuse any client but LAW is law.One would think
with all your initials ....well
Anyway all the things you listed to "Shock"
the reader simply dilute your opinion,respectfully.
But I happen to agree with your Main Point.
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written by J, August 27, 2013
Religious no.1 but back it up with the science that homosexuality is a behavior. nobody is born this way and no right can be found in the free expression thereof. Would the court mandate they take pictures of a bestiality wedding? man boy? necrophilia? etc..etc...

Go on offensive.....
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written by Rich in MN, August 27, 2013
@Jack CT,
I think Dr. Arkes' point is that we should be demanding of the courts to define exactly the line between unjust discrimination and just discrimination and to delineate the specific criteria that determine said line. This is critical in correcting our current situation in which the word "discrimination" and its 'wheres, whys, and hows' is so nebulously handled by the courts that it becomes a "one size beats all" sort of club. Once the court is made to 'show its hand' regarding the lines and criteria of discrimination, and not play this ad hoc/ad hominem attack game on Christians and others, then the Christians et al will be able to engage those specific reasons with reasons of their own. Dr. Arkes wants to evolve the issue from being a witch hunt to being a debate.
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written by Grump, August 27, 2013
I remember signs posted in private establishments in the old days: "We reserve the right to refuse service to anyone." However, under the rubric of "civil rights," business owners are bound by federal law which grants all people the right to "full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation on the ground of race, color, religion, or national origin."

The Unruh Civil Rights Act in the 1960s was interpreted to provide broad protection from arbitrary discrimination by business owners. Cases decided during that era held that business owners could not discriminate, for example, against hippies, police officers, homosexuals, or Republicans, solely because of who they were.

Cases sometimes are decided by whether the refusal of service was "arbitrary" or whether there was a "special interest" in declining to serve. A court, for example, held that a cemetery could exclude "punk rockers" from a private funeral service. However, that was more the exception than the rule.

While it is unlawful to refuse service to certain classes of people, it is not unlawful to provide discounts on the basis of characteristics such as age and other criteria. Business establishments can lawfully provide discounts to groups such as senior citizens, children, local residents, or members of the clergy in order to attract their business.

It boils down to whether "equal access" to public accommodations outweighs "individual liberties." Clearly, the courts have decided in favor of "equality."

I'm with Professor Arkes in finding such a trend appalling but am not surprised that religious freedom is taking it on the chin these days.

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written by Howard Kainz, August 27, 2013
In a contraceptive culture, where contraception is extolled for all, gays can distinguish themselves proudly as engaging in 100% effective contraception. It would be discriminatory for other contraceptors to pose legal obstacles.
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written by Dennis, August 27, 2013
Lawyers for the righteous have failed us for forty years.
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written by Brian English, August 27, 2013
"The Huguenins"

They certainly don't look like your typical homophobes.
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written by Rich in MN, August 27, 2013
We are losing a war of attrition in the courts, and everybody "who has eyes to see and ears to hear" knows this. When we present a study, the other side presents a study; when we claim their study is advocacy research with flawed methodology, they claim our study is advocacy research with flawed methodology. These kinds of stalemates are winners for the other side. There must be some way of raising the issue in the courts so that actual sociological evidence can be debated and weighed so that the traditional view of marriage is not simply shouted down with the label "animus."
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written by Steve Golay, August 27, 2013
I certainly agree that the approach should steer more towards reason than belief. (The courts are not Church councils in which proper beliefs are given definition along with their perimeters.)

But regarding the hope ". . . that even the partisans of gay rights admit that certain orientations may be illegitimate . . . will win out (and somehow contribute to the argument o reason? In the arena of RETAIL politics will those folks, in the end, be trounced? (As they shunted aside the gay contingent who went about assuring us that all that was being asked for was civil unions and not gay marriage.) Are we sure that the nature of homosexuality does not abhor perimeters and restrictions of sort. (To be charitable, one can exchange "homosexuality" for "the homosexualist movement" - yet, it is the "homosexualist movement" that is being listened to and given standing.)

Could be, that the general, if less informed, (Christian) populace understand that to be the case - that the other side seeks to battle this out based on the triumph of dogma, come hell, fire, and high water; that the other side is set to trounce their other (christian) side - for that is the only battlefield booty that holds any bloody meaning for them).

Christians feel besieged and battered. They are battle weary. What is left - they "reason" - than to pick up the weapon most dear to them, the sharp edged surety of belief, and step onto that muddy bloody battlefield, and have it out.

As they do sink their feet into that mire, at least the fallen bodies of those gays who saw the reason for restriction and perimeters can be stacked up into barricades.

Do they must, for they know what is at stake. For the high flying banner above the enemy reads reads clearly enough, in spite of war's fog: No Law but Consent. The Kids are Ours.

That is their battle prize. Will bet the casino on it - the ordinary Huguenins, unsheathing their sharp-edge beliefs, understand that.
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written by Jacob Morgan, August 27, 2013
The law and the courts need to get out entirely.

Should a Muslim baker be compelled to decorate a cake celebrating the Christian victory at Lepanto? Should an Atheist baker be compelled to decorate a cake celebrating the birth of the world 3,000 years ago, ordered by the village fundamentalist? Should a Wiccian (or whatever) baker be compelled to bake a cake celebrating St Patrick's victory over Druids? Or a cake celebrating the execution of witches in New England?

Should a "gay" photographer be compelled to photograph a party celebrating a former gay going straight? Should a Catholic goods shop owner be sued for not honoring an order for goods to be used in a black Mass from the local Satanic church? Should a surgeon be sued for not providing female circumcision to Muslim parents who request it for their daughters? Is a Baptist photographer to be sued for not photographing the wedding of a break-away Mormon sect's "sister wife" marriage? May a pet shop owner not sell an animal to be used in a voodoo ritual?

Insanity.

What it will come down to is this. No more photographers photographing life-events. No more wedding cakes, just big white cakes with no markings picked up at the counter. Yeah, big victory.


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written by Arthur Henry, August 27, 2013
Dr Arkes' point re rational arguments is indeed correct, if, unfortunately also beside the point.

Not everyone is adequately articulate even if rational enough to make a case beyond the religious point. The simplest illiterate peasant, however, can be religious and serious about his or her faith in it.

Our constitution protects-- becoming protected-- one's freedom to practice that religion barring inarguable physical harm to another human: Human sacrifice as the extreme would not be a freedom permitted... even if we do so 1 million plus times a year. That we cannot, however, refuse to bake a cake on those beliefs, speaks volumes to the nature of the war we are in that is simply too little voiced.
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written by Richard A, August 27, 2013
How hard can it be to find a Muslim photographer or baker in this country, and get him to provide his service to a pair of homosexuals?

Albuquerque has a population in excess of a half-million; the Huguenins can't be the only professional photographers in town. Seems to me you could easily prove that the sexual-perverts' decision to patronize that particular establishment was based on an irrational animus against devout Christians.
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written by Seanachie, August 27, 2013
While one cannot argue with basing legal decisions on "reasoning" rather than "belief", it seems that law advances case by case and subsequently progressive jurisprudential reasoning not always rational. Consider the convoluted reasoning(?) that underpinned Roe V. Wade et al. Seems to me the Huguenins committed a legally tactical error by leading with their well-formed values. What if they merely acted politically correct (played the game) with the plaintiffs by merely having a schedule conflict each and every time the plaintiffs requested their service? I suspect the plaintiffs eventually would have gone away and hired another photographer to record their union; thousands in defense attorney fees would have been saved; and, the Huguenins ultimately no worse for wear.
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written by Michael Baker, August 27, 2013
To appeal to religious freedom against the force of an oppressive law is mindless. The term ‘religious freedom’ lacks objective content. While properly the reality it purports to signify can only ever be the religion founded by God, taken in a context where the majority adheres to any and every religion or no religion, the term means whatever the individual wants it to mean. Indeed, it is not a religious but a Masonic category as you will discover if you read Leo XIII’s Humanum genus, Libertas praestantissimum & Immortale Dei. The problem is not with the application but with the law. If you want to do away with an oppressive law you must have leadership. That means, a bishop of the Catholic Church has to put himself in the gun, inform his congregation from the pulpit that such a law is no law at all but a species of violence and should be disobeyed, and be himself prepared to go to gaol to support his point. That is, you need a bishop who understands why he wears red ! Until that happens the position of true human liberty in ‘the land of the free’ will continue to deteriorate.
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written by Hadley Arkes, August 27, 2013
I want to thank our readers for the comments--or most of them. I'm afraid that our friend Jack CT was not reading very closely: I was simply reporting on what was conveyed in the opinion of the Court--I did not say that I myself thought it was wrong ever to photograph women holding hands. And neither did the Huguenins if we simply read the lines with common sense: evidently they were uncomfortable with two women holding holds or doing something else with an obvious erotic edge to it.

But on the main strands of controversy, some our friends remind me of a questioner once in an audience in Georgetown. He asked, "Isn't there some alternative to reason?" And I asked in turn, "What are you offering? Did you want to dance?" The judges are trying to assemble reasons to justify their decisions. Did our friends simply want to sing or dance or yell uplifting sentiments at these judges? Or meet them on their own terms by showing what is specious in their reasoning? Of course there is no more guarantee of success here as in any other part of life, and I certainly share the bleak sense of our readers as to the witlessness that has gripped so many of the so-called "educated classes" in this country. But I'd simply remind our friends that whether the best arguments we can make finally win or lose it is important that we understand ourselves the most compelling arguments that may be made for our position.
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written by Bedarz Iliaci, August 28, 2013
Reasoning works when the two parties share some premises. But the very premises are being denied here.

If the secular world does not accept the Catholic or natural law premises, then perhaps the only option if to take refuge in 'beliefs'.
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written by Jack,CT, August 28, 2013
Prof Arkes,

I am not sure how to respond to you.
I will say this I think my feelings on the matter

are mainstream and speak to more than 50% of the
United States.
I have two children and as a health care provider and
not a writer I certainly make decisions fast and on the
fly to save lives and at times my writings reflect the same
fast script,so my apology for offending you.

I am a craddle Catholic and do agree with the doctrine of our faith make no mistake,thanks for a very good article and I promise to wait and pause" before posting my arttic-
ulations of how i feel,God Bless
You
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written by Rich in MN, August 28, 2013
@Jack CT,
Please cut yourself some slack! You responded as I try to do: with honesty, in good faith and with a dash of emotion. We all can misread/misinterpret things sometimes!

At the risk of overanalyzing Dr. Arkes' combox remarks, I found it most interesting (telling?) when Dr. Arkes noted: "The judges are trying to assemble reasons to justify their decisions." Does this suggest a dogmatism in judicial thinking that will not be shaken by even the most compelling arguments to the contrary? If that is the case, then we are "out dogmatized" on SCOTUS. Dancing (even Riverdancing) before the judges will do no good (after all, they are SCOTUS and Riverdancing is Irish). Instead, we should all sing to the judges -- let's all sing "The Impossible Dream."
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written by Louise, August 28, 2013
Seanachie, I have to admit that you expressed my thoughts. WHy pick a fight unless there is no alternative; especially in this judicial environment? To have a scheduling conflict could mean anything, and one could come up with a scheduling conflict at a moment's notice and not even need to take refuge in a mental reservation! For example, one could decide that any time a job comes up that one doesn't want to do, one will schedule time in front of the tv! Who needs to know what the scheduling conflict is? No one. I'm not criticizing the brave couple but sometimes discretion is the better part of valor.
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written by Jack,CT, August 28, 2013
@Rich in MN: Thanks so uch and another great point~
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written by Manfred, August 29, 2013
Dr, Arkes: Have you colnsidered giving seminars to the Thomas More Society and other law groups which are defending citizens on these matters?
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written by Michael McDermott, August 29, 2013
Conscience Rohming Astray

Hmmm... Lets See if I can find an analogy.

How about If I buy a generic birthday cake from a Jewish Bakery and they sell it to me, and then tell them I want Them to put "Happy Birthday Ernst Rohm" in frosting...

(Rohm was the world famous Boy Raping Homo-Anal Coprophile Pederast who founded the Homo-Nazi party - and led its Homosex Terrorist Storm Troopers in beating Germany in to "Tolerance'; as well as the 'Hitler Youth' after they destroyed the Boy Scouts - until assassinated in 1934 by his syphilitic prostitute protégé / boyfriend Hitler)

Can I Sue them if they Refuse - because Rohm is a famous (and Heavily Censored) Homo-Anal World Historical Figure and refusing would 'Reflect Adversely" on his sexuality?

Rohm died After opening Dachau under his command, but Before the Death Camps were built (after the Nuremberg laws) and started specifically targeting Jews?

In other words -because Rohm was a Homo-Anal Coprophile who died Before the Holocaust - Does that count more than his starting up the 'party'?

Is an Ernst Rohm Birthday Cake a matter of Affirming Homosex Pride, to be Ordered by the Courts...

- Or a deal breaker - and treated unlike the disapproval of Behaviors by other members of his Misandrist / Exterminationist / Pederast Bund - by those Wedding Photographers.?

After all - If they have No Right of Conscience in what they Must Support, why should anyone else - like Jewish or Catholic citizens?
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written by Jim, September 30, 2013
Another "victory" for the Obama police state, hatred of religion and religious freedom for Americans, and for the court system ordered to carry out this insanity. If you're looking for common sense to prevail, look elsewhere.

What prevails is ignoring The Constitution, stupidity, a "party line" of TOLERANCE only of one political viewpoint (worship of the state and its edicts), and the destruction and transformation of the US government into that of the former USSR.

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