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The Judicial Cheapening of Conscience Print E-mail
By Francis J. Beckwith   
Friday, 13 September 2013

As my esteemed colleague Hadley Arkes has already pointed out on this page, the New Mexico Supreme Court recently issued a judgment against Elaine Huguenin and her husband, Albuquerque photographers, who, for reasons of religious conscience, could not employ their artistic talents and resources in order to help celebrate a same-sex commitment ceremony. They, in other words, thought any remuneration they would have received from their prospective client was not worth the harm that participating in the ceremony would have brought to their souls.

Several writers, including Hadley, have explained the shortcomings of this decision, and what it portends to the future of religious liberty. In line with those critiques, I would like to expand the scope of that analysis a bit by singling out certain comments in the court’s opinion that reveal a cast of mind that defenders of religious liberty will have to confront in the foreseeable future, and which we ignore at our own peril.

The Huguenins, as they did in the lower court, argued that they had not violated New Mexico’s prohibition on sexual orientation discrimination since it was the ceremony, and not the sexual disposition of the two parties, that was the ground of their judgment. For they would have declined photographing heterosexual same-sex actors merely simulating a same-sex commitment ceremony as part of the filming of a movie.

The Court rejected this reasoning: “[W]hen a law prohibits discrimination on the basis of sexual orientation, that law similarly protects conduct that is inextricably tied to sexual orientation,” and thus includes all the cultural accoutrements of that orientation.

Yet the statute that allowed the Huguenins to be sued for sexual orientation discrimination also prohibits “any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services because of. . .religion.” But when we apply the court’s reasoning to this part of the statute, the Huguenins’ distinction between client and ceremony makes perfect sense.

Imagine, for example, an Orthodox Jewish photography firm that closes every week from late Friday afternoon through all-day Saturday. An engaged Catholic couple calls the firm to procure its services. The couple neglects to mention that their wedding is scheduled for Saturday, October 4, 2014. Although the firm initially offers to photograph their wedding, it declines once it is told the date. It is not only the Sabbath, but Yom Kippur.

The couple realizes that if they were Orthodox Jews, this conflict would have never arisen, for they would have chosen a date consistent with the beliefs of the photographers. Although Catholic marriage is “conduct that is inextricably tied” to Catholicism (it is, after all, one of the seven sacraments), and although the photography firm is declining its services because it cannot in good conscience participate in any non-Jewish ceremony on any Saturday, let alone Yom Kippur, no one would conclude that the firm is invidiously discriminating against Catholics.


          St. George before Diocletian (Ubisi Monastery mural, c. 1350)

For we know that it is not the couple’s Catholicism that is the reason for the firm’s refusal. Rather, it is the religious conscience of the firm and its ownership – and what it requires of one who wants to serve God with authenticity – that is the reason for the firm’s refusal.

In fact, if the Catholic couple followed the example of the lesbian couple that sued the Huguenins, and filed a complaint against the Jewish firm to a state “human rights commission” in order to extract some kind of “justice” for not acquiescing to their demands, we would rightly think of the Catholic couple as intolerant religious bullies. 

If the New Mexico Human Rights Commission were faced with such a case, its solution would be clear. First, the commission would point to section 11 of the New Mexico constitution: “Every man shall be free to worship God according to the dictates of his own conscience, and no person shall ever be molested or denied any civil or political right or privilege on account of his religious opinion or mode of religious worship.”

Second, because “acquiring, possessing and protecting property” is an inherent right under that same constitution (section 4), the state has no authority to conscript the liquid assets of the Jewish firm for following “the dictates [their] own conscience,” for to do so would be to deny them a “civil or political right or privilege on account of [their] religious belief.”

Third, since it is reasonable to believe that the firm is not discriminating against the Catholic couple because they are Catholic, the Jewish firm has not engaged in invidious religious discrimination, and thus it is not violating the state’s anti-discrimination statute. 

Such reasoning was available to the three tribunals that heard the Huguenins’ case, and yet none of them employed it. Why? I suspect it is because they just don’t understand what it means for a religious believer to be moved by a conscience under an authority he cannot disobey. Justice Richard C. Bosson, for example, writes in his concurring opinion: “The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice.”

But a “God of your choice” cannot ground a religion of conscience. If one’s religious beliefs are equivalent to mere commodities – selected as one would choose an automobile or a Home Depot tool box based on one’s tastes and needs – then these beliefs cannot point beyond themselves to a higher authority over which the “chooser” is not sovereign. 

A “God of your choice” is as adequate to ground conscience as a gang of burglars would be qualified to author a body of property law. 

 
 
 
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Comments (10)Add Comment
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written by Jack,CT, September 13, 2013
Beckwith, were you fatigued or .....when you
wrote this weak cup of tea!!lol, you are
forgivin either way.

I respect you very much and your work i just
can not understand all the attention TCT has
devoted to this Topic in general?
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written by Pay, September 13, 2013
Jack,
Not enough attention is devoted to it. It is one of the central issues of our time. How can you not see it?
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written by Rich in MN, September 13, 2013
Dr. Beckwith, thank you (and Dr. Arkes) for your vital work which, as you put it so well, we ignore at our own peril. Please continue to keep us informed!
Your "movie" comparison is a fascinating one because it suggests that we can discriminate against people based on their profession (and those actions inextricably tied to the exercise of their profession), based presumably on the COURT's understanding of vulgarity and obscenity. For example, Michael Douglas and Matt Damon recently finished shooting on a film about Liberace that apparently contained some sex scenes between the two men. Hollywood put the kibosh on the film's release for fear of alienating the general public to homosexuality by revealing too many of its realities. But what if the director had wanted to hire the Huguenins to take on-set stills of the making of the film for promotional reasons? There is nothing illegal about what happened on the set; it simply violates what the Huguenins (and many other people) would regard as appropriate behavior. In fact, even if the director were shooting a movie about Elizabeth Ann Seton, I am guessing that the Huguenins might still refuse to photograph it if the photographs must include scenes of Seton and her husband being sexually intimate. While, even in the case where there is nothing indecent about their intimacy -- to the contrary, it is the fullness of their sacramental union -- there can be something indecent about dragging it outside of the privacy of the two people and God.
I wonder what the court will consider its 'endgame' in this whole matter? What will the court finally compel under its understanding of anti-discrimination? If the North American Man/Boy Love Association (NAMBLA) wins some anti-discrimination cases, will the Huguenins be required to photograph their ceremony? And many combox readers might think I am being facetious or carrying things "ad absurdum" if I mention the possibility of Timmy and Lassie having a commitment ceremony that is protected by anti-discrimination law. However, I would guess that, just a few decades ago, mentioning gay marriage as the "slippery slope" at the Lee Marvin "palimony" trial, or at no-fault divorce hearings, would have been considered engaging in scare-tactic hyperbole as well.

Dr. Beckwith, please keep up the vital work on our behalf!!!
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written by Athanasius, September 13, 2013
I suspect that a court would not force a photographer to accept a job filming pornography because it violated their conscience, so it would seem that some conscience norms do exist. The real issue here is that the leftist liberals have specifically taken gay marriage as their cause. They approach the world from a different metaphysics.

And here we see the inherent weakness in American freedom. The Founders wrote documents that assumed Judeo-Christian metaphysics, but many of our institutions have been taken over by people with a completely different world view. This shows that you cannot have a coherent society that gives equal footing to vastly different metaphysical systems.

Christianity created the West, but now Liberalism has taken over. Meanwhile, Islam now rules with an iron fist in the Middle East. Simple calls for religious freedom will work in the long run. We need to reconceive our founding documents in light of Christian metaphysics, whereby faith and reason are corresponding expressions of the Logos, and male and female are recognized to be equal in dignity, yet different but complementary expressions of humanity.

Allowing a leftist or Islamic worldview to prevail is cultural suicide, and not in conformance with ultimate reality.
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written by Howard Kainz, September 13, 2013
I think a better analogy than the Jewish example would be if the photographers had refused to cover a mixed black-white wedding. The judges believe that sexual orientation, like race, is something we are born with. This unproven belief is carrying the day for the homosexual agenda, making it a civil rights issue.
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written by Tony, September 13, 2013
When the judge says, "A God of their choice," he means, though he's too stupid to see it, "A god that does not exist." He has demoted religion to a hobby. But the first amendment does not protect hobbies. Religion is the ultimate organizing principle of the entire life of a believer and indeed of any culture worthy the name. The judge understands neither God nor man; the first, for him, doesn't exist, and the second is only a pleasure-procurer.
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written by Jane, September 13, 2013
Yes but what if a person decline to work for a graduation ceremony because their particular religion prohibited women from graduating from college (their role is to marry), or an Orthodox Jewish couple refused to film a marriage because a Jew is marrying a non-Jew and their religion proscribes this?

Then it comes down to which is more invidious-the original discrimination or trumping of religious rights.
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written by Athanasius, September 13, 2013
I left out an important word above:

Simple calls for religious freedom will NOT work in the long run.

( small phone keyboards. Arghh!)
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written by Rich in MN, September 13, 2013
A number of years ago, I had a chance meeting with a Catholic who was well known in Minnesota politics. While he was a Democrat, he seemed to be more "Sargent Shriver" than "Joe Biden," if you get my drift. We spoke briefly about Minnesota politics and he admitted that it was much easier to govern back when he was in office because the population he served was much more homogeneous in terms of its values and understandings. He was not trying to cast aspersions on any group; he was just stating a fact that we can no longer agree on much of anything. Not only can we not agree on the answer to basic questions, we cannot even agree on what logical, rational method of argumentation will be used to adjudicate those differences. The interpretation of our laws seems to be devolving down to a matter of raw judicial power. I hope I am mistaken in that assessment.
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written by Ernest Miller, September 13, 2013
Tony...

Perfect. Recall Karl Marx..."Religion is the opium of the masses."

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