Worldviews at oddsBLOGS, Latest News, Robert Erven Brown Tuesday, April 15th, 2014
Perspectives on the April 14 “Elaine photography case” U.S. Supreme Court ruling to let the lower court ruling stand
By now, you’ve probably heard that U.S. Supreme Court refused to accept jurisdiction to review the “Elaine photography case” from Santa Fe, NM. Without comment, the justices denied the petition requesting a review of the case by the New Mexico photographer Elaine Huguenin. You might recall that Huguenin was fined for violating a local city anti-discrimination ordinance for refusing to document a lesbian couple’s commitment ceremony on the grounds that sexual orientation is a “protected class.”
The Supreme Court’s refusal to accept jurisdiction in the case means that a $6,637.94 fine assessed by the local Human Rights Commission against this small business photographer will stand. The photographer and her husband have no further rights of appeal. They must now pay the fine and wrestle with their religious conscience as to whether or not to continue in the photography business in the state of New Mexico.
For the lesbian couple who brought the action — the Willocks — the victory was mostly symbolic; they suffered no real loss as a result of Elaine’s refusal to photograph their ceremony. The evidence reflected that they were able to find another photographer at a lower price to photograph their ceremony, which went off without a hitch. Still, they were moved to enforce the principle that, as their attorneys argued, “Whatever service you provide, you must not discriminate against customers when you engage in public commerce.”
As I read through several different articles on this topic today, I reflected on how to best think about this case. As I searched for an overriding principle or perspective, I was reminded of how overwhelmingly important our world view is in determining how we “look” at the case. This intellectual process is much like picking a lens when a photographer is thinking about how to take a photograph.
Those amateur photographers among you will surely agree that your photographs are dramatically altered by the choice of lens:
- For example, if you pick a wide-angle lens (28 mm) on a typical 35mm camera, then your resulting photograph you will encompass the entire room from wall-to-wall.
- On the other hand, if you select the 300 mm telescopic lens, then your photograph will exclude a large part of the room as it “zooms in” on just the lamp in the center of the room.
Elaine picked up her “free exercise of religion” lens as she viewed the lesbian wedding. The Willocks picked up their “no discrimination in commerce against a protected class” lens as they viewed the ceremony.
Worldviews at odds
This clash of worldview and perspectives is the very stuff of which U.S. Supreme Court decisions are often made — a titanic clash of two (or more) “truths” — dare we say “world views” — which society holds dear. The founding fathers of our country outlined a framework for knitting together 13 colonies into a civil union. Even then, the fledging country was ripe with controversy ranging from “loyalist” to the ever-present differences in forms of religious expression.
The genius of the founding father’s formula for creating the nation rests in its primary focus on freedom of individual expression; emphasizing freedom of assembly, freedom of speech, freedom of the press, freedom in the “exercise” of religion and, freedom from taxation without representation all come to mind as essential values which have helped generations of Americans maintain a truly united country. Thus, from a legal/Constitutional law point of view, cases like Elaine Photography are cause for concern if you value freedom of expression and freedom to practice your religion over freedom of commerce.
Free expression of religion versus free commerce
Those valuing free expression of religion over commerce found the language of one of the New Mexico Supreme Court Justices particularly chilling when he suggested that small business owners like Elaine are “now compelled by law to compromise the very religious beliefs that inspire their lives” when they enter the stream of commerce. This loss, the Judge wrote, “is the price of citizenship.”
A remarkable fact about this episode is that it took place in New Mexico when the state had not yet adopted a law authorizing gay marriage!
Still more chilling, then, are the iterations of this attack on commerce:
- Alliance Defending Freedom attorney Jordan Lorence represented Elaine in filing her appeal to the U.S. Supreme Court. He asks, “Should the government force a videographer and animal rights activists to create a video promoting hunting and taxidermy?”
- “Will a Jewish photographer be forced to photograph a Nazi rally or a Nazi wedding?”
- “Will a Muslim photographer be forced to do a documentary on a trip through the hog farm and photograph the barbecue celebrating the joys of pork?”
As in all Supreme Court cases, of course, there is a balancing test to be applied. I strongly suspect that we have not heard the last of the arguments and iterations that will be coming down the pike as both our society and our courts try to strike a reasonable balance between the values of free expression of religion versus the values of freedom of commerce.
The sad note here is that those activists determined to punish people who refuse to embrace and celebrate the homosexual lifestyle choice are, in effect, ultimately harming the entire economy as they force those people of conscience out of commerce. Surely Elaine and her husband will be considering whether or not it makes sense for them to continue in a business environment where the government will force them — literally force them — to compromise their religious principles in this way.
As a purely economic argument, this case does not make sense. The end result is to cause a loss of freedom of competition by removing people of conscience from the marketplace. Allowing the free market to work would simply have encouraged the lesbian community to shop elsewhere among those other photographers who are happy to have their business. This would have allowed a greater freedom of choice in the marketplace which, in the end, benefits both the street and the lesbian community.
Resolving a clash of freedom of expression versus cultural discrimination is dicey business. Even a Justice Bosson— who concurred with the majority opinion — was queasy about his decision:
“The Huguenins are not trying to prohibit anyone from marrying,” he wrote. “They only want to be left alone to conduct their photography business in a manner consistent with their moral convictions.” Instead, they “are compelled by law to compromise the very religious beliefs that inspire their lives.”
“Though the rule of law requires it, the result is sobering,” Justice Bosson wrote.
Robert Erven Brown is an attorney licensed to practice in Arizona. He and his nonprofit practice group work with nonprofits and churches helping them manage key operations connected with their missions, visions and causes. As permitted by local Rules of Ethics, they collaborate with attorneys who are licensed in states other than Arizona. Bob is author of Legal Realities: Silent Threats to Ministries, which describes his Campus Preservation Planning© initiative — a comprehensive program designed to manage the wide array of risks facing non-profit organizations. He can be reached by email or by calling 602.744.5748. RHL is located at 201 North Central Ave., Suite 3300, Phoenix, AZ 85004. Monica J. Stern, Certified Public Accountant, can be reached by email or by calling 602.674.8226.
This publication is offered as a public service by the Nonprofit Practice Group at Ridenour, Hienton & Lewis (RHL) for general educational purposes to provide accurate and authoritative information on general principles of law. It is not intended to provide, and may not be relied on as, legal advice. The publisher is not engaged in rendering legal, accounting or other professional service. If legal advice or other expert assistance is required, then services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” This article may not be used as a substitute for competent legal advice from a licensed professional attorney in your local jurisdiction. No “informal” legal advice will be provided by telephone. Simply sending an e-mail to Mr. Brown will not create an attorney-client relationship. A formal attorney client relationship will not be established until a conflict check is completed and an engagement letter has been signed by both the attorney and the client.