We were reminded of this on May 31, when the New Mexico Court of Appeals upheld a ruling that found Elane Photography of Albuquerque guilty of sexual orientation discrimination for declining to photograph a same-sex commitment ceremony.
The ceremony was for two women in Taos, and the court agreed that Elane must pay almost $6,700 in attorney’s fees to the complainant—even though the couple found another photographer to record the event. The owners of Elane Photography had declined to photograph the ceremony because the message communicated by the ceremony conflicted with their Christian beliefs.
The New Mexico Court of Appeals rejected the free speech and religious liberty defenses raised by lawyers from the Alliance Defense Fund (ADF), which is defending Elane and its owners, Jon and Elaine Huguenin. On June 27, ADF appealed this case to the New Mexico Supreme Court and, if necessary, will appeal it to the U.S. Supreme Court.
In this case, the conflict with religious freedom stemmed from a nondiscrimination law, and New Mexico does not grant legal recognition to the couple’s same-sex relationship. But such conflicts are likely to increase in jurisdictions that grant legal recognition to same-sex unions.
This ruling is perilous because business owners do not surrender their First Amendment rights at the marketplace gate. A speechwriter is not engaging in “religious discrimination” when he declines an offer to write a speech attacking Catholicism or defending atheism. A black videographer who declines to film a Ku Klux Klan rally is exercising her right of conscience, not engaging in racial discrimination against white people. The First Amendment protects the right of people to refuse to promote a message they oppose.
Even those who support legal recognition of same-sex unions should support Elane Photography in this case. If the government can punish these two business owners for declining to promote a message with which they disagree, then the government can punish any business owner for holding convictions that aren’t in vogue.
Jordan Lorence serves as senior counsel and senior vice-president of the Office of Strategic Initiatives for the Alliance Defense Fund at its Washington, D.C., Regional Service Center.
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