As my esteemed colleague Hadley Arkes [1] has already pointed out on this page, the New Mexico Supreme Court [2] 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 [3], argued that they had not violated New Mexico’s prohibition on sexual orientation discrimination [4] 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 [5] were faced with such a case, its solution would be clear. First, the commission would point to section 11 of the New Mexico constitution [6]: “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.