A rapidly growing series of conflicts over religious freedom/liberty
involving members of the LGBT
goods and services:
The conflict between Elane Photography and a
couple in New Mexico (Continued)
The term "LGBT" refers to the Lesbian, Gay, Bisexual, Transgender and Transsexual community.
Five main factors in this and many other similar cases:
Although there are many dimensions to this case, most media accounts seem to concentrate on only one or two:
- The customer and their expectation to be served:
Customers expect to be served when they enter a public accommodation. To be refused because of their religion, skin color, sexual orientation, etc. can have a profoundly destructive effect on community cohesion and tranquility. The human rights law guarantees that there will not be first class-citizens and second-class citizens in the state, dependent upon the religious views of business owners.
- The owners and their religious beliefs:
The owners of Elane Photography are evangelical Christians. Their faith group's interpretation of the Bible passages relating to same-gender sexual behavior would, in all probability, condemn such activity. Many fundamentalist and other evangelical Christians believe that God considers such behavior to be such a serious sin that sexually active homosexuals are automatically dispatched to the torture chambers of Hell after death where they will be subjected to an eternity of pain and suffering. Another concern is derived from their reading of the Hebrew Scriptures (Old Testament). It contains many stories of instances where Yahweh retaliated against an individual or culture which had deviated from his expectations. Perhaps the most serious was the flood of Noah, the greatest genocide in human history, in which all of the humans on earth were said to have been exterminated except for Noah and his immediate family. Many fundamentalists and other evangelical Christians fear that God will send a natural disaster to any state or country that legalizes SSM.
- The state's human rights code:
The New Mexico Human Rights Act (NMHRA) is contained in Section 28 of the
New Mexico statutes and codes:
- Section 28-1-2 defines the term "public accommodation:"
" 'Public accommodation' means 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." 3
- Section 28-1-7, subsection F states:
" 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, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation." 4 [Emphasis by us]
- The Golden Rule:
The Golden Rule is the world's most popular ethic of reciprocity. These ethics are found in the Bible and in many other holy books. In fact, all of the major religions promote a version of the Golden Rule. That is to be expected because it performs such a vital function in the smooth operation of society. They simply state that you should do onto others as you would expect to be treated yourself. So if the owner of a business is approached by someone asking for help, the owner should treat their potential customer as the owner would wish to be treated themselves in a similar situation. If the owners of Elane Photography approached another company and fellow public accomodation for assistance in image editing software they wold expect to receive assistance and not be rejected because of their religious beliefs.
The Foundry, is a blog at Heritage.org -- a conservative web site. They titled their article on the ruling by the New Mexico Supreme Court:
"Same-Sex Marriage Trumps Religious Liberty in New Mexico." 6
Another, equally valid but more positive title could be:
"Golden Rule trumps the 'religious liberty to discriminate' against minorities."
Unfortunately, groups involved in this conflict and the media do not seem to have considered the application of the Golden Rule in this case. It has mostly been protrayed as either:
- The state violating the freedom of religion of the owners of Elane Photography, or
- Elaine Photography violating the New Mexico human rights legislation that all public accomodations are required to follow.
However, we would suggest that Christian buisiness owners should fully consider "what would Jesus do?" in a similar situation. A big part of Jesus' message was for people to follow the Golden Rule. However, he was silent on the topic of homosexuality and other minority sexual orientations.
- The potential impact of this case on anti-discrimination, human rights legislation throughout the U.S.:
On 2013-DEC-14, as the case now stands with the decision in favor of the plaintiffs, the New Mexican human rights legislation has been strengthened. It prohibits discrimination against women and minority customers including sexual minorities. The law has found to be valid by the New Mexican Supreme Court.
There are many options for the future of this case:
- If the case is refused certiorari by the U.S. Supreme Court it will not be heard and the decision of the New Mexican Supreme Court will stand. The court does not have to give a reason for refusing certiorari. Accepting the New Mexican Supreme Court's ruling would further strengthen the New Mexican human rights legislation, and similar legislation in other states.
- If the case is accepted by the U.S. Supreme Court, and the court upholds the decision by the New Mexican Supreme Court then the New Mexican human rights legislation, and similar legislation in other states would be very much strengthened.
- However, If the case is accepted by the U.S. Supreme Court, and the court overturns the decision by the New Mexican Supreme Court in favor of absolute freedom to discriminate on the basis of religious beliefs, then the New Mexican human rights legislation, and similar legislation in other states would be gutted. Any creative lawyer could could make a case for exemption from human rights legislation in any state.
We are not predicting the future resolution to this case. However, we do predict that if the U.S. Supreme Court accepts the case, its decision will be 5 to 4. Almost all cases with an ethical/moral/religious component are decided this way. This will be a key case to watch. If it is accepted, we should hear in December, hearings would probably be in 2014-MAR, and the Court's decision released in late 2014-JUN.
Comments by the public:
The article titled "Same-Sex Marriage Trumps Religious Liberty in New Mexico" in The Foundry/Heritage.org contained 139 comments by its readers showing a wide range of views. 6 Some are quite thought provoking:
- "JeffreyR05" posted:
"She's making graven images on the Sabbath, for God's sake! She's not a Christian anything!"
- Glyndon Morris posted:
"Christians can practice their own religion all they want. However, when they choose to participate in a capitalist economy, they are not allowed to pick and choose their customers. They must take all customers. To do otherwise risks a new religion arising that chooses not to affiliate with African-Americans, or Muslims, or women. America cannot risk this possibility.
Christians are also called to imitate Jesus Christ, who did not turn away anyone. Instead, he loved everyone who came to him. He spoke to everyone who would talk to him. He did not judge them; he only loved them. So these photographers' claim to be followers of Jesus Christ is somewhat suspect as they have worked so hard to avoid doing exactly what he did."
- Stephen Bodhi posted:
"Businesses can't discriminate. It doesn't matter what your religious beliefs are. Refusing service to a gay couple is like refusing service to an interracial couple."
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Jordan Lorence, "Fact Sheet: Elane Photography v. Willock," Alliance Defending Freedom, 2013-NOV-18, at: http://www.adfmedia.org/ This is a PDF file.
- "Elane Photography, LLC v. Vanessa Willock," American Civil Liberties Union, 2012-DEC-18, at: https://www.aclu.org/
- "Section 28-1-2 - Definitions," Laws.com, at: http://statutes.laws.com/
- "Section 28-1-7 - Unlawful discriminatory practice," Laws.com, at: http://statutes.laws.com/
- Jacob Gershman, "Photographers Discriminated Against Gay Couple, Court Rules," Wall Street Journal, 2013-AUG-25, at: http://blogs.wsj.com/
- Ryan T. Anderson, "Same-Sex Marriage Trumps Religious Liberty in New Mexico," The Foundry, 2013-AUG-22, at: http://blog.heritage.org/
Copyright © 2013 by Ontario Consultants on Religious
Originally written: 2013-DEC-14
Latest update: 2013-DEC-15
Author: B.A. Robinson