Conservative Christians around the United States have been clamoring for increased religious protections to match the advances made by by gay rights groups. The latest attempt fell flat yesterday in Arizona when Republican Governor Jan Brewer vetoed Senate Bill 1062, which would have effectively sanctioned discrimination against lesbian, gay, bisexual and transgender people by businesses in the state. To understand this bill and others like it, we need to take a few steps back to the cases that rallied so many Christian groups around these discriminatory legislative efforts.
In 2006, Elane Photography, a studio specializing in photo-journalistic coverage of engagement ceremonies, graduations, weddings and other events, refused to photograph the commitment ceremony for a lesbian couple, Vanessa Willock and Misti Collinsworth. Co-owner Elaine Huguenin said that she objected as a matter of conscience to creating media that told stories contrary to her deeply held Christian beliefs. The couple sued Elane Photography and have been fighting it out in court ever since.
Ultimately, Huguenin believes she has a right, as an artist, to refuse to say things she doesn’t want to with her art. But Tobias B. Wolff, a law professor at the University of Pennsylvania, and his clients, Willock and Collinsworth, don’t think this case is about free expression. Talking to the New York Times, Wolff called it “a straightforward case of discrimination in the public marketplace,” adding, “No court has ever held that the First Amendment gives businesses a license to sell goods and services to the general public but then reject customers based on race or religion or sexual orientation, in violation of state law.”
So far, the courts have agreed. The New Mexico Human’s Rights Act was amended in 2003 to prohibit discrimination based on sexual orientation at places of public accommodation, which it defines as “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.”
Last summer, the Supreme Court of New Mexico ruled that “a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the anti-discrimination provisions of the NMHRA [New Mexico Human’s Rights Act] and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.”
Justice Richard C. Bosson, concurring with the court, wrote about the case: “In a constitutional form of government, personal, religious, and moral beliefs, when acted upon to the detriment of someone else’s rights, have constitutional limits. One is free to believe, think and speak as one’s conscience, or God, dictates. But when actions, even religiously inspired, conflict with other constitutionally protected rights — in Loving [v. Virginia, which challenged the prohibition of interracial marriage] the right to be free from invidious racial discrimination — then there must be some accommodation. Recall that [the case challenging the requirement that students salute the American flag West Virginia State Board of Education v.] Barnette was all about the students; their exercise of First Amendment rights did not infringe upon anyone else. The Huguenins cannot make that claim. Their refusal to do business with the same-sex couple in this case, no matter how religiously inspired, was an affront to the legal rights of that couple, the right granted them under New Mexico law to engage in the commercial marketplace free from discrimination.”
Shortly before the New Mexico Supreme Court ruled on the Elane Photography case, Washington’s attorney general sued Barronelle Stutzman, owner of Arlene’s Flowers, for refusing to provide its services for a gay marriage ceremony. And just a few weeks after the ruling, a Colorado judge ruled that Jack Phillips, owner of Masterpiece Cakeshop, has to produce wedding cakes for gay weddings even if he is opposed to same-sex marriage on religious grounds.
Which leads us back to what happened yesterday in Arizona. This state has strong religious freedom protections in place already — it is one of 18 states to have passed a Religious Freedom Restoration Act (RFRA), which safeguards individuals and faith groups from discrimination based on religion (the other states are Alabama, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Michigan, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas and Virginia; Hawaii and Nevada have pending legislation).
The various state RFRA laws say that whenever a court needs to determine if the Free Exercise clause has been violated, the court must apply strict scrutiny, meaning that the government must prove that: there was a compelling government interest in doing so; the restriction must be narrowly tailored to achieve that interest and nothing else; and the law or policy must be the least restrictive means to achieve that interest. Meanwhile, most court tests of law require only rational basis review, meaning that the government only has to prove that a law is rationally related to a legitimate government function.
Senate Bill 1062 would have expanded Arizona’s RFRA to include businesses, which means its protection would apply even when people were suing one another, not just the government. In effect, SB 1062 would shield any establishment from discrimination suits engendered when these establishments refuse to serve people who live or present in a way contrary to the business’ religious ideology.
Though some have argued that this bill isn’t about being able to discriminate against others, supporters of the bill and many like it have made it unambiguously clear that these bills are a reaction to the legal ramifications faced by Elane Photography and other businesses who refused to serve gay costumers.
This is not the first time we’ve seen a bill like this. Similar anti-gay pieces of legislation have failed in nine other states: South Dakota, Kansas, Idaho, Tennessee, Colorado, Maine, Washington, Michigan and Ohio. Five states have pending anti-gay laws: Georgia, Missouri, Oklahoma, and Mississippi. Two states have anti-gay constitutional amendments in flight following ballot measures: Pennsylvania and Utah. Oregon has an anti-gay ballot initiative pending.
Many of these measures overlap with birth control shield laws — Arkansas’ House Bill 1898 might allow doctors to refuse treatment to gay people in non-emergency situations — though a number of similar pieces of legislature are careful to say they prohibit doctors to discriminate based on a person’s sexual orientation (an example would be South Carolina’s).
The concern over the religious freedoms of business owners and how far these freedoms extend to their businesses will be taking center stage next month when the Supreme Court hears the cases of the Christian-owned craft supply chain Hobby Lobby and the Mennonite-owned furniture company Conestoga Wood Specialties Corp., which refuse to cover contraception for their employees on religious grounds. Elane Photography has petitioned the Supreme Court to hear its case as well, though that petition does not reiterate the case’s initial claim that photographing the wedding of a lesbian couple violates the owners’ right to practice their religion.
And perhaps with good reason — in contemplating the amount of legislation that has come about I can’t help but think about the concurring opinion of Justice Bosson on the Elane Photography case, who argued, in closing:
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.
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.
Header image by Gage Skidmore.