Another Disaster for Religious Freedom in the Courts Print
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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