New Mexico case underscores need to protect individual’s religious liberty

In a recent piece, syndicated columnist George Will chronicles yet another egregious assault on religious freedom, this one involving the issue of same sex unions.

A female couple in New Mexico, planning a “commitment ceremony” (New Mexico does not recognize same sex “marriages”) sought to engage the services of a husband-and wife-owned photography business for the event. The business owners, the Huguenins, being Christians who oppose same sex unions, declined. The female couple filed a discrimination claim, and the New Mexico Human Rights Commission found in their favor, and ordered Elane Photography to pony up $6,600 in attorney’s fees.  

Will notes the most glaring irony — that New Mexico’s government, if it applied its own Human Rights Commission’s arbitrary standard to itself, would also be guilty of “discrimination” because it does not recognize same sex “marriages.” Apparently the government is free to guide itself  by certain moral standards, but individual citizens and privately owned businesses are not.

Will goes on to review the religious freedom guarantees — in both the First Amendment to the U.S. Constitution and in New Mexico’s constitution and laws — that should protect the Huguenins, including the state’s Religious Freedom Restoration Act, which clearly defines “free exercise” of religion as “an act or a refusal to act (our emphasis) that is substantially motivated by religious belief.” He also cites Eugene Volokh of the UCLA School of Law in arguing that the Huguenins can make a “compelled speech argument” — that they “cannot be coerced into creating expressive works, such as photographs, which express something (they are) uncomfortable expressing.

“Courts have repeatedly held,” Will explains, “that freedom of speech and the freedom not to speak (our emphasis) are ‘complementary components of the broader concept of individual freedom of the mind.’” And, in response to a New Mexico court holding that “Elane Photography is merely ‘a conduit for another’s expression,’” Will notes that the U.S. Supreme Court “has affirmed the right not to be compelled to be conduits of others’ expression.” (Our emphasis)
Citing the blog The Volokh Conspiracy, Will follows the Huguenin case — now before New Mexico’s Supreme Court — to its logical conclusion:

“In jurisdictions such as the District of Columbia and Seattle, which ban discrimination on the basis of political affiliation or ideology,” he asks, “would a photographer, even a Jewish photographer, be compelled to record a Nazi party ceremony?”

This episode underscores what must be a vital component of our efforts to defend religious freedom against the current onslaught of government coercion: that it must include protection of conscience for individuals, as well as for religious institutions.

While our U.S. Bishops have been very clear on this point, some who have been sympathetic to protecting religious institutions from the Obama Administration’s contraception/abortion mandate — the usually reasonable Juan Williams of FOX News, for example — have been absolutely contemptuous of the idea that individual Catholics — particularly Catholic business owners — should be afforded the same conscience protections.   

However, the Church, particularly in recent decades, has rightly reminded Catholic business leaders of their obligation to conduct their business dealings in fidelity to the Gospel. Usually, this involves such responsibilities as just treatment of employees, fair dealings with clients, workplace and consumer safety, sensitivity to the environmental impact of a company’s operations.

But that is not all. Catholic business people have a responsibility — and a right — to conduct their business dealings in accord with all the moral and social teachings of the Church. And so if a Catholic employer, consistent with Church teaching, does not want to include abortion and contraception in his employees’ health insurance, he or she should have the right not to do so. If a Catholic pharmacist does not want to sell contraceptive and abortifacient drugs — or lethal injections to facilitate assisted suicide or criminal executions — he or she should not be required to do so. If Catholic owners of catering halls or photography studios cannot in conscience participate in same sex ceremonies, the government must not be permitted to force them to violate their religious beliefs by doing so.

The religious freedom of institutional Churches must of course be vigorously defended.  But that defense will be inadequate if we fail to also protect the religious liberty of every individual person of faith.