“And you’re in a tough spot, Jimmy, because you didn’t read the Playtone contract that you, yourself, signed. And it says you do what I say. And I say you record these songs from the Playtone catalogue. You record That Thing You Do! in Spanish. You get one cut per side of the L.P., but I don’t want any of this lover’s lament crap. I want something peppy, something happy, something up-tempo. I want something snappy.
—Tom Hanks as Mr. White in That Thing You Do!
Back in 2006 Elaine and Jonathan Huguenin, owners of a small Taos photography studio, declined Vanessa Willcock’s request to shoot her same-sex “commitment ceremony,” citing the conflict between their Christian beliefs and same-sex unions. Although Willcock found another photographer to do it—for cheaper—she sued the Huguenins anyway for illegal discriminatory practices. On Thursday the New Mexico Supreme Court ruled that the their refusal to take the assignment violated the New Mexico Human Rights Act. In his opinion for the unanimous court, Justice Richard Bosson trumpeted the case as highlighting the compromise and accommodation that he says is the essence of what America is about:
“At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others . . . But there is a price, one that we all have to pay somewhere in our civic life . . . The Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people.”
As an initial matter, let me say that if you accept the Rule of Law, as I do, the court appears to have gotten this one correct. Under the New Mexico Human Rights Act, it is an unlawful discriminatory practice for
“any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap[.]”
N.M. Stat. 28-1-7 (F). The statute defines a “public accommodation” as “any establishment that provides or offers its services, facilities, accommodations or goods to the public[.]” N.M. Stat. 28-1-2 (H). Thus, taking the statute on its face, by opening their doors and offering their services to the public, the Huguenins were forbidden from making any distinctions—for whatever reason—in offering or refusing to offer those services based on sexual orientation or gender identity. This is the statute the court was given to work with, and under the Rule of Law the court was bound to enforce it. The court did its job.
But notice the inconsistency the application of the New Mexico statute in this case highlights.
Justice Bosson says that the essence of America is that “all of us must compromise, if only a little, to accommodate the contrasting values of others,” but apparently that’s a one-way street; the Huguenins have to compromise to accommodate lesbian unions, but neither the lesbians nor the State of New Mexico have to compromise to accommodate the Huguenins’ Christian beliefs. To the contrary, they punished the Huguenins for adhering to their religious convictions and withholding their services. And there’s the rub.
Say what you want about this being a natural extension of the Civil Rights era. This case is VERY different than, say, a diner refusing to serve lunch to blacks. Eating lunch has nothing to do with race, thus the service of the meal isn’t in any way condoning the thing to which a racist diner owner objects. The diner owner isn’t participating in the patron’s blackness. But the nature of the Huguenins’ services—wedding photography—requires them not only to tolerate or even accept a same-sex union, they actually have to participate in it, thus taking part in the very activity to which their religious conscience objected. Justice Bosson pays lip-service to the Huguenins’ rights, saying they only need channel their conduct, not their beliefs, but his sentiment is hollow: in sum, they can believe whatever they want as long as they don’t act on those beliefs.
In a different context, this case would be patently shocking. Imagine the Huguenins were approached by a Satan-worshipper to photograph a Satanic wedding. Very few would go so far as to say that they should be compelled to accept that assignment, yet that’s what the New Mexico statute would appear to require. Or let’s reverse the case and suppose a gay photographer were approached by a vocal opponent (on religious grounds) of gay rights to shoot his Southern Baptist wedding.
You’d never hear the end of that one.
With the PC crowd, it’s always all about individual freedom and individual rights . . . as long as it’s their freedom and rights we’re talking about. When it’s your freedom and rights and they conflict, well, you understand we all [read: you] have to make compromises to accommodate different points of view.
In this instance, the Constitution should have protected the Huguenins. They have a First Amendment right to the free exercise—that’s their “conduct,” Mr. Justice Bosson—of religion. They have a Fifth Amendment right not to be deprived of their liberty or property without due process and just compensation. They have a Thirteenth Amendment right to be free from involuntary servitude.
More fundamentally, whether you like it or not individual freedom necessarily includes the freedom to discriminate; to choose with whom you will associate, and with whom you will do business. It has to. You may disagree with the bases for my particular prejudice; I may even be morally, fundamentally, and in every other way wrong. But so long as I am not harming another or infringing upon another’s rights, the concept of individual freedom, if it is to mean anything, must mean I am nevertheless free to indulge in it. If you disagree with me, you are equally free to refuse to associate or do business with me.
But in this age of political correctness run amok, it doesn’t work that way. And now we see it taken to its logical conclusion, that it’s no longer enough to have to accept the views and behavior of those in PC-favored groups with whom you disagree, apparently now you have to condone or even forcibly take part in them, your rights and freedom be damned.
The Huguenins didn’t prevent Vanessa Willcock from having her same-sex ceremony. Nor did they keep her from having it photographed—indeed, she got that done for less money than the Huguenins would have charged, thus arguably doing her a favor. All they did was decline to participate in an activity to which they had a moral objection based on their religious beliefs. And for that, the State of New Mexico has ordered them to pay thousands of dollars in attorneys’ fees.
American liberty at its core should be about live-and-let-live. Justice Bosson is correct in that sense when he writes that we must “leave space for other Americans who believe something different,” and support “the tolerance that lubricates the varied moving parts of us as a people.”
But that space and tolerance has to go both ways.