A decision by the Supreme Court of New Mexico Elane Photography v Vanessa WillockAugust 22, 2013 has aroused controversy not because of its decision which was predictable but because of the reasoning put forward by one of the Judges Justice Bosson
The case involved a small photography business run by Elaine and John Huguenin who refused to photograph a "Commitment Ceremony" held by a Lesbian couple. Same Sex marriage is not legal in New Mexico but it was accepted in the Court that the proposed "Commitment Ceremony" was a Marriage Ceremony in all but name. The Huguenins were then sued for breaching the New Mexico Human Rights Act (NMHRA) which is a Non Discrimination Act. The New Mexico Supreme Court held that the acts of the Huguenins constituted unlawful discrimination in breach of NMHRA and their sincere religious objections to photographing the "Commitment Ceremony" were not protected by the First Amendment to the US Constitution
Leaving aside the fact that is Orwellian to describe as a "Human Rights Act" legislation which prohibits what private individuals, such as the Huguenins may or may not do the decision was predictable. Refusals to provide services based on religious principles have been uniformly unsuccessful in the Courts of the USA, Canada, UK and Australia.
It is the reasoning by Mr Justice Bosson which is worthy of note and comment
{90} All of which, I assume, is little comfort to the Huguenins, who now 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. It will no doubt leave a tangible mark on the Huguenins and others of similar views.
{91} On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. 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. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.
{92} In the smaller, more focused world of the marketplace, of commerce, of public accommodation, 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. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.
{91} On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. 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. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.
{92} In the smaller, more focused world of the marketplace, of commerce, of public accommodation, 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. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.
As a lawyer I come across a lot of clap trap masquerading as legal reasoning but this particular piece is in a class of its own. The idea that the price of citizenship is to compromise personal beliefs is breathtaking in its intolerance furthermore there is a complete lack of logic in saying
"what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. 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."
and then forcing the Huguenins to do what they do not want to do.
I certainly agree that "all citizens must compromise, if only a little, to accommodate the contrasting values of others." but that raises the fundamental question of what compromise, what accommodation, was shown to the "contrasting values" of the Huguenins ?
I certainly agree that "all citizens must compromise, if only a little, to accommodate the contrasting values of others." but that raises the fundamental question of what compromise, what accommodation, was shown to the "contrasting values" of the Huguenins ?
Similarly with the remark
"That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. "
This reasoning does not logically lead to forcing people to act contrary to their conscience. Forcing people to act contrary to their conscience as this case has done, does not show any "sense of respect" whatsoever for others. In fact, speaking as a Non American, what strikes me most about this judgment and its reasoning is how profoundly "Un American" it is. Freedom and personal liberty are, or at least were, the founding principles of the United States and the decision in this case and the reasoning behind it are profoundly contrary to both those principles.
Respect for others would have said that the Huguenins should not be forced to act contrary to their conscience and would have held that the Lesbian couple were fully legally entitled to hold their "Commitment Ceremony" but they could not force anyone else to participate in it or endorse it. Instead what the Supreme Court of New Mexico has decided is that the Huguenins must lose their liberty of choice and conscience in the name of "equality".
To paraphrase that great American, Benjamin Franklin
"They who can give up essential liberty to obtain a little temporary {equality}, deserve neither liberty nor {equality}".
To paraphrase that great American, Benjamin Franklin
"They who can give up essential liberty to obtain a little temporary {equality}, deserve neither liberty nor {equality}".
3 comments:
Thanks for that analysis. The opinion makes no sense. If pluralism requires compromise, then surely the compromise must be made by the gay women not the photographers (whose religious beliefs are supposedly protected by the First Amendment) and if it is one's conduct and not one's belief that must give way, surely it is the conduct (the "commitment ceremony) of the gay women that requires them to find another photogapher, not the conduct (attending and photographing the event) of the photographers that must change.
The supreme irony is that America was populated in part by Europeans fleeing Europe in order to practise their religion where in their home countries it was fettered by the law.
Are we to expect a new migration by Christians seeking to institute a state where their consciences are not to be overridden for the sake of mere commerce?
"surely it is the conduct (the commitment ceremony) of the gay women that requires them to find another photogapher, not the conduct (attending and photographing the event) of the photographers that must change."
I agree with you completely Gail. What will Americans be forced to do next in the name of "equality" or "tolerance"--principles that can be argued for such vastly different ends depending on whose values frames the argument?
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