This column by ACRU Senior Legal Analyst Ken Klukowski was published November 8, 2013 on Breitbart.com.
Gay rights, religious liberty, and free speech collide in a case offered this morning to the U.S. Supreme Court. If the justices take this case, it will be a defining case on American’s freedom to speak and act according to their religious beliefs when those beliefs include that marriage is between a man and woman.
The case is Elane Photography v. Willock. Elane Huguenin is a photojournalist; she takes pictures to draw a narrative that conveys a story message. She and her husband Jonathan own and operate Elane Photography LLC.
One type of work Elane does is photographing weddings in a way that celebrates marriage. Because the Huguenins are Evangelical Christians, they believe marriage is only the union of a man and woman.
Breitbart News explained the facts and history of this case in a report on Aug. 22. Elane and Jonathan were assessed a fine by the New Mexico Human Rights Commission for declining to photograph a same-sex commitment ceremony. (It’s not a marriage or civil union ceremony, because neither of those were recognized under New Mexico law at the time.)
The New Mexico Supreme Court upheld that penalty, holding that Elane and Jonathan’s religious beliefs must be secondary to the cause of gay equality. As Breitbart News quoted one justice in the court’s opinion, “The Huguenins are free to… pray to the God of their choice… But there is a price, one that we all have to pay somewhere in our civic life.”
On Friday, the Alliance Defending Freedom (ADF), representing Elane Photography, filed a petition for certiorari at the Supreme Court of the United States, asking SCOTUS to reverse the New Mexico court. ADF specifically challenges the New Mexico ruling for violating the Huguenins’ First Amendment right of free speech, since it compels Elane and Jonathan to convey a message approving of gay marriage which is contrary to the Huguenins’ beliefs.
The petition begins by quoting a recent U.S. Supreme Court case where the justices wrote, “At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression.”
This means that the government cannot compel a person to say something or convey a message that the person does not actually believe. The petition continues, “The First Amendment right to freedom of speech includes both the right to speak freely and the right to refrain from speaking.”
This case is vitally important in that it concerns whether people of faith–especially Christians who believe biblical teachings on marriage and sexuality–can be forced to choose between being true to their beliefs or putting food on their kitchen table by earning a paycheck in their chosen profession. As the petition explains regarding the New Mexico court’s decision:
Such disregard for the constitutional rights of these professionals threatens to drive them from the marketplace. Not only would that limit the expressive options available to the public, it would cost these individuals their livelihoods. Whether the First Amendment permits this result is a question that warrants this Court’s review.
Jordan Lorence is ADF’s lead counsel on this case. The New Mexico court found that Elane Photography is a “public accommodation,” like a restaurant or restroom that could not turn away a black or Hispanic person. Reacting to that declaration, Lorence told Breitbart News in an exclusive statement, “The First Amendment protects all Americans from government coercion forcing them to promote ideas they don’t support. Those in power should not misuse public-accommodation laws to punish those who decline to affirm the prevailing liberal orthodoxy on marriage.”
If the Supreme Court takes this case, it will mark the first time the Court draws the line between the gay-rights agenda and First Amendment rights of free speech and religious liberty–and who wins when those are in conflict.
The Court should vote in January whether to take the case.