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Freedom of Religion

Does freedom of conscience include the right to discriminate?

The Supreme Court has decided not to review the case of Elane Photography v. Willock, which pitted a lesbian couple against a photographer who refused to take pictures of their commitment ceremony. That means the court decision finding that the photographer violated New Mexico’s Human Rights Act will stand.

The photographer argued that the First Amendment protected her freedom of conscience and expression, and that the government could not compel her to take particular pictures. “This issue is all about the government forcing a citizen to communicate a message against her will and against her beliefs,” said Alan Sears of the Alliance Defending Freedom, which mounted the photographer’s legal defense.

The couple argued that the photographer, as a commercial enterprise, was required to treat them equally under New Mexico’s Human Rights Act. “Every business has to play by the same rules to protect customers from discrimination in the marketplace," said Joshua Block of the American Civil Liberties Union.

New Mexico’s Supreme Court agreed, concluding that the photographer’s violation of state law was the same “as if it had refused to photograph a wedding between people of different races.”

The U.S. Supreme Court turned down the appeal without comment, but the question of whether businesses are required to do business with gay customers is far from settled. Fewer than half the states have laws prohibiting discrimination on the basis of sexual orientation.

And the debate about how to balance gay rights and religious freedom continues. In Colorado, a judge ruled against a baker who didn’t want to create a custom cake for a same-sex couple. A Washington florist and a T-shirt maker in Kentucky also turned down work for gay customers. In February, Arizona’s governor vetoed a bill that would have allowed companies to deny services to gays.

Freedom of conscience was a major issue for some founders. Thomas Jefferson authored Virginia’s Statute for Religious Freedom, which became law in 1786. Jefferson’s main concern was getting rid of religious requirements in public life, but the principles he espoused have been a cornerstone of American religious freedom.

Either side of the debate might find ammunition for their point of view. Jefferson strongly opposed any government coercion: “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”

But Jefferson also wrote: “our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.”

The Bill of Rights spelled out the American vision for freedom and equality, but it did not solve the problem of how to balance these values when they came into conflict.

How should we reconcile equal rights with religious freedom?



This is a really interesting question. My kneejerk reaction is that I would like to think when we run a busines like that, that we can choose, irregardless of the motivation, what we want to do. But then I cringe at the thought because I feel anger about the times when an african-american individual, couple,or family may walk into a restaurant or movie theatre or what have you and be told, "We don't serve your kind here". Some would argue that discrimination based on race has no moral basis, but there is a moral dimension to sexual orientation and choices. They would argue that that makes a difference. Getting back to freedom, equal treatment etc, there is also a question there on both sides of this type case. One is that a couple, in this case lesbian, having the freedom, dignity, to choose a business and be treated as everyone else. On the other hand, is it right to force someone to make what ultimately is a work of art, (not to be confused with DaVinci or someone but an artful production), that is false for them? It may seem like low end art or maybe not art at all, but in some ways hiring someone to photograph a wedding and put together an album is akin to comissioning a work of art. If its not art, then you could just go with the fifty people who are already at the wedding with their smart phones and cameras, and have them all send you their pictures. But you hire the pro because you want art, whether you think of it that way or not. I am not sure an artist shouldn't have the right to refuse to produce art that is against the vision they want to project in their art. Its complicated. I haven't come to a conclusion in my mind. I look forward to other comments.
This is a tricky question, and I'm not sure there will ever be a "right" answer--especially since not every religious group/denomination in the US subscribes to the same theory on the subject of sexual orientation. As I have watched this case unfold in the media, I have wondered if or to what extent the laws/regulations related to publicly traded versus privately held enterprises were considered during the legal debates on the subject. It would seem to me that any publicly traded company would be subject to certain regulations ensuring access to all peoples, whereas privately held enterprises might not be. Private colleges, for example, are already legally permitted to exclude otherwise qualified candidates from their pool of potential new employees if they determine the candidate in question has a value set that runs contrary to their stated mission--so state sanctioned discrimination is permitted in certain circumstances. It doesn't make it "morally right", but it does exist. The common sense advocate in me does wonder, however, why this couple would actually want to do business with someone that seems so openly hostile toward them? In this day and age, was there no one else to whom they could have turned to provide this service? Also, weddings are pretty personal to people--and as such, I think I'd want to have a high level of comfort with the individual or people contracted to document one of my most special days. And that can't happen in a situation such as this. As such, I have a little bit of a hard time understanding the motivation here--unless it's simply revenge for feeling insulted.
If someone doesn't want to do business with you, it's not likely that you will get the quality that the person normally produces, because you've forced them to do something that their conscience can't support. The question is: Do you want to force the person to do something that's against their beliefs for the purpose of proving your point or are you looking for a certain level of quality?
I guess the point of the law case was to prevent the discrimination by others before it starts. Not so much to force this specific business. The case couldn't be settled till long after the ceremony I am sure. It is a tough nut to crack. For instance, what if a person committed to the more traditional take on what constitutes marriage were to insist on joining a group that advocates for LGBT rights etc, and at every meeting's discussions expoused their contrary opinion on every topic? Did so respectfully and within the rules as far as only speaking when the "floor was open" so to speak? Could that group be forced to retain them on their roles and include them in their meetings, and hear at every meeting what they don't want to hear?
It strikes me that the definition of "marriage" here is pretty important. For many years, the legal definition of "marriage" has been one man to one woman. This has been derived, in essence, from the religious definition of "marriage". If we are to remain consistent in the application of the anti-establishment clause in the US Constitution, however, does the application of the religious definition of "marriage" to a secular/governmental purpose not violate that which the Constitution has established? Or, more succinctly, is there a difference in the definition--morally and legally--of "civil marriage" and "religious marriage". Many questions to ponder.
I do not know that the definition of marriage matters in this case. The case and situation doesn't really have anything to do with whether this couple can marry or not. Its whether the owner of the business can refuse to do the service the business supplies based on their religious opinions. It could theoretically of been a request to photograph a birthday party, or the couples anniversary of becoming a couple. It could of been one of their birthday parties.

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