Are conservative Christians harmed by compliance with nondiscrimination laws? It’s a more complex question than it appears at first blush.
I’m glad I don’t have to adjudicate any of these cases. Like people who want to ban books, conservative Christians who raise objections to non-discrimination laws as they apply to glbt persons are acting from a place of good intent, even if I disagree with their conclusions. Book banners want to protect children from ideas they believe children aren’t ready to deal with; conservative Christians who object to complying with nondiscrimination laws on the basis of religious freedom perceive themselves as the aggrieved party being asked to violate their conscience.
US law has long recognized the right of individuals to request exemptions from certain laws and practices based on questions of conscience and religious faith. As I understand it, Quakers are not exempt military service, they are however exempt from participating as combatants. A number of years ago, I helped a friend draft a statment requesting status as a conscientious objector and be granted exemption from combat duty (he was a veteran and member of the reserves at the time). His statement was lengthy, thoughtful and carefully written; he was granted conscientious objector status and ultimately was not recalled to active duty.
US law has, also, long recognzied the right of individuals to be free from discrimination in the public square, which includes small businesses which are public accommodations. Businesses are public accommodations, which means they are subject to generally applicable laws and those signs that many small businesses post that read “We reserve the right to refuse service to anyone” should have a huge asterisk that qualifies that statement. You can’t legally refuse to serve someone because of their race, gender, religion, national origin and so on. Increasingly, that list includes real or perceived sexual orientation. To put it in simple terms, business owners have to make business decisions for business reasons not from animus toward a group of persons.
As more US cities, counties and states adopt nondiscrimination laws covering sexual and gender minorities, and as more states legalize same-sex marriage, I believe there are going to be more cases like that of Elane Photography and Masterpiece Cakeshop, in which small business owners seek exemption from nondiscrimination laws on the basis of religious objections.
What happened in these cases is instructive.
In 2006, a same sex couple approached Elane Photography, a small business in New Mexico, requesting their services in photographing the couple’s commitment ceremony. The owner of Elane Photography, Elane Hugenin, refused, to photograph the ceremony, citing her religious beliefs against same sex marriage. The couple filed a complaint with the state’s civil rights commission and thus far all the rulings (including the New Mexico Supreme Court) have held that the photography studio is a public accommodation subject to the state’s nondiscrimination ordinance protecting glbt persons from discrimination and that the photogrpher’s religious freedom is not harmed by compliance with the law.
In 2012, a same sex couple contacted the Masterpiece Cakeshop in Colorado to prepare a cake for their wedding celebration. The owner of the bakery refused to do so since he has religious objections to same sex marriage. The couple filed a complaint and an Administrative Law Judge (ALJ) found the bakery violated the law against discrimination on the basis of sexual orientation; the ALJ also rejected the bakery owner’s claim that his religious freedom was harmed by compliance with the non-discrimination law.
In both cases, the business owners asserted First Amendment objections – freedome of speech and freedom of religion.
Legal precedent in the US doesn’t just permit freedom of speech, it also preclude compelled speech. The government cannot require persons to speak in favor of something of which they disapprove or with which they disagree. The details in the cases are different. Certainly photographing a commitment ceremony is a different form of expression than baking a cake for one. From the New Mexico Supreme Court:
The compelled-speech doctrine on which Elane Photography relies is comprised of two lines of cases. The first line of cases establishes the proposition that the government may not require an individual to “speak the government’s message.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 63 (2006). The second line of cases prohibits the government from requiring a private actor “to host or accommodate another speaker’s message.” Id. Elane Photography argues that by requiring it to photograph same sex weddings on the same basis as opposite-sex weddings, the NMHRA violates both prohibitions. We address each argument in turn.
With regard to compelled speech:
Elane Photography reads Wooley and Barnette to mean that the government may not compel people “to engage in unwanted expression.” However, the cases themselves are narrower than Elane Photography suggests; they involve situations in which the speakers were compelled to publicly “speak the government’s message.” Rumsfeld, 547 U.S. at 63. In Wooley and Barnette, the respective states impermissibly required their residents to affirm or display a specific government-selected message: “Live Free or Die” in Wooley, 430 U.S. at 707, and allegiance to the flag in Barnette, 319 U.S. at 632-33. Both cases stand for the proposition that the First Amendment does not permit the government to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Barnette, 319 U.S. at 642. However, unlike the laws at issue in Wooley and Barnette, the NMHRA does not require Elane Photography to recite or display any message. It does not even require Elane Photography to take photographs. The NMHRA only mandates that if Elane Photography operates a business as a public accommodation, it cannot discriminate against potential clients based on their sexual orientation.
The second part of the argument:
Like the law in Rumsfeld, the NMHRA does not require any affirmation of belief by regulated public accommodations; instead, it requires businesses that offer services to the public at large to provide those services without regard for race, sex, sexual orientation, or other protected classifications. Section 28-1-7(F). The fact that these services may involve speech or other expressive services does not render the NMHRA unconstitutional. . . . Elane Photography is compelled to take photographs of same-sex weddings only to the extent that it would provide the same services to a heterosexual couple.
So far, so good. Where it gets interesting concerns the actual subject matter of the photos. Elane Photography’s attorney’s argued that the very nature of taking photos of a same sex wedding would inevitably express the message that same sex marriage is morally acceptable, a message the owner of Elane Photography does not wish to express. The Court parsed the issue:
If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography’s choice of whom to photograph or not. The difference in the present case is that the photographs that are allegedly compelled by the NMHRA are photographs that Elane Photography produces for hire in the ordinary course of its business as a public accommodation. This determination has no relation to the artistic merit of photographs produced by Elane Photography. If Annie Leibovitz or Peter Lindbergh worked as public accommodations in New Mexico, they would be subject to the provisions of the NMHRA . . . Elane Photography sells its expressive services to the public. It may be that Elane Photography expresses its clients’ messages in its photographs, but only because it is hired to do so. The NMHRA requires that Elane Photography perform the same services for a same-sex couple as it would for an opposite-sex couple; the fact that these services require photography stems from the nature of Elane Photography’s chosen line of business.
The freedom of speech issue hinges on whether or not the company offers its services to the general public and is a public accommodation. With regard to Masterpiec Bakery, the ALJ dismissed the argument that the bakery would be subject to compelled speech because the bakery never found out what type of cake they were being asked to make, they simply refused since it was for the celebration of a same sex marriage. The ALJ went further, arguing that “even if Respondents could make a legitimate claim that [the antidiscrimiantion law] impacts their right to free speech, such impact is plainly incidental to the state’s legitimate regulation of discrimintory conduct and thus is permissible.”
The freedom of religion arguments were also rejected by both the New Mexico Supreme Court and the Colorado ALJ.
The New Mexico court decision said:
Under established law, “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”
The New Mexico Human Rights Act is generally applicable and even though it has religious exemptions, those exemptions are relatively narrow and do not apply to businesses.
Subsection (C) exempts religious organizations from provisions of the NMHRA governing sexual orientation and gender identity, but only regarding “employment or renting.” If a religious organization sold goods or services to the general public, neither subsection would allow the organization to turn away same-sex couples while catering to opposite-sex couples of all faiths. Subsection (B) permits religious organizations to serve only or primarily people of their own faith, as well as to discriminate in certain limited real estate transactions; Subsection (C) applies only to employment and, again, to real estate.
The Colorado ALJ distinguished between conduct and belief. The anti-discrimination law doesn’t require the bakery owner to believe anything, rather it regulates the conduct of his business. As with the New Mexico case, the ALJ held that the bakery owner was subject to generally applicable laws and the exemptions in the law are relatively narrow – for churches and religious institutiones.
From the legal standpoint, then, these conservative Christians are not materially harmed by compliance with nondiscrimination laws because the laws don’t negatively impact their freedom of speech nor their freedom of religion.
As more and more US cities, counties and states adopt nondiscrimination laws covering sexual and gender minorities, I believe there are going to be more cases like these even though, from a legal perspective, they seem cut and dried. In essence, the rulings seem to say “You, as a person have religious freedom, the business you run does not.”
The decisions in both these cases make for interesting and educational reading. Judge Bosson on the New Mexico Supreme Court added a concurring opinion in which he acknowledged that compliance with the law represents something very difficult for Christian conservatives:
Jonathan and Elaine Huguenin see themselves in much the same position as the students in Barnette. As devout, practicing Christians, they believe, as a matter of faith, that certain commands of the Bible are not left open to secular interpretation; they are meant to be obeyed. Among those commands, according to the Huguenins, is an injunction against same-sex marriage. On the record before us, no one has questioned the Huguenin’s devoutness or their sincerity; their religious convictions deserve our respect. In the words of their legal counsel, the Huguenins “believed that creating photographs telling the story of that event [a same-sex wedding] would express a message contrary to their sincerely held beliefs, and that doing so would disobey God.” If honoring same-sex marriage would so conflict with their fundamental religious tenets, no less than the Jehovah’s Witnesses in Barnette, how then, they ask, can the State of New Mexico compel them to “disobey God” in this case? How indeed?
Judge Bosson relates the history of the Loving v Virginia case, which struck down laws prohibiting interrational marriage.
But of course, the Huguenins are not trying to prohibit anyone from marrying. They only want to be left alone to conduct their photography business in a manner consistent with their moral convictions. In their view, they seek only the freedom not to endorse someone else’s lifestyle. Loving, therefore, does not completely answer the question the Huguenins pose. To complete the circle, we turn to our third case.
Heart of Atlanta Motel, Inc. v. United States, upheld the federal Civil Rights Act of 1964, a milestone enactment which, among other achievements, declared invidious discrimination unlawful, not just by the state but by private citizens, when providing goods and services in the sphere of public accommodations . . . antidiscrimination laws governing employment, housing, and public accommodations.”). The New Mexico Legislature has made it clear that to discriminate in business on the basis of sexual orientation is just as intolerable as discrimination directed toward race, color, national origin or religion. See NMSA 1978, § 28-1-7(F) (2004). The Huguenins today can no more turn away customers on the basis of sexual orientation—photographing a same-sex marriage ceremony—than they could refuse to photograph African-Americans or Muslims.
The judge concludes that the cumulative weight of those three cases compels the court to render the verdict it has rendered – that Elane Photography violated the law, is not exempt from the law and can be fined for discriminating on the basis of sexual orientation.
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.
While recognizing that this outcome may be difficult for conservative Christians, the Judge also calls it necessary – not a compromise of belief but of conduct with regard to their business practices.
In a sense, then, that answer to the key question is that yes, conservative Christians may be harmed by compliance with non-discrimination laws, but that harm is less than the harm to both persons and society as a whole than the harm which results when persons are discriminated against.
Persons opposed to same-sex marriage can continue to believe it is immoral, they can speak against it. They can refuse to believe that same-gender couples are the equivalent of heterosexual couples. They can believe gay persons are immoral; that god wants gay persons to become straight. But when they step into the public square, they may not be exempt from the same laws to which everyone else is subject. The state has an interest in preventing discriminatory conduct, not discriminatory attitudes.
But, the business owners and their attorneys argue, we aren’t discriminating because they’re gay, we object to their conduct – i.e. getting married to a person of the same gender.
This argument is an inversion of the argument the courts made. The courts argued that the state has an interest in regulating discriminatory conduct; the defendants are arguing they are making a distinction between conduct and identity and that they are choosing to not be part of the act of a same sex marriage. They don’t object to people being gay, they object to gay people getting married. It’s like the episode of Golden Girls in which Blanche says of her brother, “I don’t mind Clayton being gay but does he have to date men? There must be some gay people who date women?” Dorothy replied, “They’re called lesbians.” It’s the equivalent of someone saying, “It’s okay to be gay as long as you don’t date, have sex, fall in love, or have a relationship.” The defendants argued, for example, that they wouldn’t provide their product/services to anyone conducting a same sex commitment or wedding ceremony, regardless of those persons’ sexual orientation.
The courts rejected this argument as a distinction without a difference. The Colorado ALJ:
The salient feature distinguishing same-sex weddings from heterosexual ones is the sexual orientation of the participants. Only same-sex couples engage in same-sex weddings. Therefore, it makes little sense to argue that refusal to provide a cake to a same-sex couple for use at their wedding is not “because of” their sexual orientation . . . In this case, Respondents’ objection to same-sex marraige is intextricably tied to the sexual orientation of the parties involved, and therefore disfavor of the parties’ sexual orientation may be presumed . . . the ALJ concludes that discrimination against same-sex weddings is the equivalent of discrimination due to sexual orientation.
Refusing to treat a same sex wedding the same as a heterosexual wedding is a form discrimination against gay persons. It’s as simple as that.
And yet, I’m reluctant to simply declare the conversation over at this point. As Judge Bosson in New Mexico rightly observed:
. . . the Huguenins . . . 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.
I believe their views are bigoted. I believe the application of their view of same-sex relationships is harmful. Yet, they are being asked to make a very painful compromise – if they wish to run their business, they must provide a service in a setting they find morally objectionable, if not actually intolerable. I’m not suggesting that the suffering these Christians are experiencing is anything comparable to the damage inflicted upon sexual minorities as a result of bigotry and discrimination, but I don’t want to dismiss the real pain conservative Christians experience as a result of being on the wrong side of non-discrimination laws. The discomfort these business owners experience is far less than the the degradation experienced by gay persons when they are treated as less than fully human. Their discomfort is real.
In the end, society has to choose between the harm suffered by the targets of discrimination and the harm experienced by those being denied the right to discriminate. The deeply held religious values of these two business owners is not in question, nor are they being asked to stop believing what they believe. Instead, they are being asked to separate their personal values from their business conduct, which for small business owners is no small task.