Article: Everyday Heroes
Elaine and Jonathan Huguenin, a twenty-something married couple, live in New Mexico and run a small photography business called ‘Elaine.’ So why is it that two young Christian photographers have been compared to people refusing services to African-Americans in the 1950s?
The trouble began when Elaine, rather cordially, refused to photograph a same-sex commitment ceremony. Shortly after, she received an e-mail from the New Mexico Human Rights commission telling her to find an attorney. One of the women involved in the civil ceremony, Vanessa Willock, had lodged a complaint against the young couple claiming they were discriminating against same-sex couples.
The Huguenins contacted the Alliance Defense Fund, an organisation set up to “to aggressively defend religious liberty by empowering [their] allies, recognizing that together, we can accomplish far more than we can alone.” ADF argue that it is a violation of the First Amendment to force Elaine to use her creative ability for something that goes against her conscience and told the Huguenins it would be bad stewardship of their company to back down or settle.
“If I’m being asked to tell the story of something that goes against my belief system,” explains Elaine, “there’s no way I can do that in good conscience.”
In a further twist, the Human Rights commission of New Mexico unanimously ruled against Elaine and her husband and requested they pay all of Willock’s legal costs and submit to requests by same-sex couples in the future. This created a media storm. The judgement is being appealed against and the jury is still out.
The question is raised, “What is freedom?”
Contact Alliance Defense Fund by calling (800) TELL-ADF (835-5233), faxing (480) 444-0025, writing 15100 N. 90th St., Scottsdale, AZ 85260, or logging on to www.alliancedefensefund.org
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I’m not sure where I stand on that. Does religious belief make discrimination legal?
According to some Talmudic interpretations, Jews are not allowed to do business with idolators close to their feasts. If a Jewish photographer refused to service a Hindu client during Divali, should that be legal?
Of course, we could also look at a small percentage of Christians in the south who consider black people to be “heathens,” and prefer not to service them out of religious belief.
At some point you have to draw the line when balancing religious practice with personal freedom against discrimination. If you permit discrimination when it’s fairly easy to find another photographer, you also make it easier for people to discriminate in situations where there isn’t someone who will serve you for miles on end. “Find another photographer” becomes “Find another restaurant” eventually.
Suppose the gay couple chooses to have their engagement party at the Belo Nightclub, and order a private booth. A few hours later, the good Christian club owner realizes his club is facilitating the unholy union of two men or women. Can the club owner say his or her religious beliefs forbid her from allowing the party to take place on his or her property?
I know that gay doesn’t equal black. However, age, gender, religion, and a variety of other protected classes are also not equal to black.
Any time you permit discrimination, it sets a really bad precedent. That being said, if I was the couple, I would have just found another photographer.
I’m just saying this isn’t a simple “religious freedom” issue. There’s a lot more going on.
–Dan
Dan,
That’s interesting. If you had the power, where would you ‘draw the line’ and for what reasons?
Marc
Hey Marc,
Thought about it a couple days, and can’t come up with one. This is why I’m not in government :-)
–Dan
Individual Rights vs Group Rights… Should rights be extended to individuals or to the group? If both then which takes precedent? If the Group, then is it wrong to deny an individual rights for the sake of the group? Then which groups takes precedent of the next? Is it wrong to deny one group rights for the sake of another? What a slippery slope we are on and as long as we are content to continue in silent tolerance…we will watch individual liberty’s surrender to the group with the louder voice!
Thanks for posting Marc
Just to clarify, Dan and Daniel are two different people
Well, I can tell you where current human law draws these lines in this country and the same basic rule applies to sexual orientation, race, gender, or any other category a legislature might see fit to protect from discrimination. The first thing to understand is that only the constitutional rights of the discriminator are at issue. This might surprise some people. The fact is that the Constitution contains no right not to be discriminated against by businesses or other private parties. The Fourteenth Amendment gives you the right not to be discriminated against by state and local governments but the constitution is silent regarding discrimination by private parties. Rights not to be discriminated against by private parties are created by statute either at the federal or state level. As a rule, the Constitution trumps statutes. So the only real question before us is whether or not the Huguenins’ constitutional rights have, in fact, been violated. Have they?
The relevant right is the freedom of expressive association. This right exists as a sort of interpretative add-on to the First Amendment. Early on, it became clear that the First Amendment didn’t protect much if it only protected individuals. Churches, press organizations, political parties, and other groups had to be formed by like-minded people before the vibrant culture of free debate and exchange of ideas envisioned by the First Amendment could come into being. Therefore, the First Amendment was held to protect not only the exercise of the enumerated rights by individuals but also the formation of associations for purposes of exercising these rights. In the landmark case Boy Scouts v. Dale, in which the Supreme Court held that the Boy Scouts were not required to employ openly gay Scout masters, the Court explained that the right of expressive association included a right not to associate, another essential component of defining an organization. In that same case, the Court laid out a three step test for determining if that right has been violated.
1. The association must actually be an expressive association. This does not mean the primary purpose of the organization must be expressive. The Huguenins do not automatically lose because the primary purpose of their business was to produce income. That is also the primary purpose of book publishers and newspapers, after all. Photography is almost certainly expressive and that’s what they do. Therefore, their business is an expressive association.
2. The government action being challenged must actually interfere with the group’s expressive conduct. If the jurors’ apply the law rather than their own feelings, this step will determine the case. It’s the only legitimately close legal question. Would requiring the Huguenins to take the photographs require them to endorse a message with which they disagreed or simply to provide a service to a couple they disapproved of? Is it forced speech or simply forced conduct? If the former, the Huguenins are within their rights to invoke religious liberty as a reason for refusing. If the latter, the act falls within the range of conduct regulable by civil government and the remedy for conservatives lies in the legislature, not in the courts.
3. There must be no compelling government interest sufficient to override freedom of association. There seems to be none here. Other photographers were available. The Huguenins weren’t hostile or threatening. There seems no larger danger from them.
Other commentators can discuss what the law should be, how religious and philosophical doctrines apply, etc. However, this is where the law stands now.
Quite well laid out George. Thanks!
Wow, that was quite a post George. Thanks for that!
Marc
Well, here is the thing. The couple did not present themselves as a Oposite Sex Photography company with private membership dues to access services.
They entered business as a public Photography service. Period. A public business and not allowed to limit their customer base.
Being gay is equal to being black, female, handicaped, Vet, etc. When anyone can refuse service for any personal reason, then it is descrimination. Clear cut.
Freedom of religion and speech do not factor into this case at all.
If you enter into the public business arena, then you must service everyone that enters your front door.
If you want to service opposite sex customers only, then you need to start a private club that charges dues for access to services.
Notice I said opposite sex customers and not Cristian customers. The business used Christian beliefs as the basis for refusal to service. However, a lot of Christians are gay. Many are preachers, nuns, clergy, etc.
Mark,
What if they were asked to perform a commitment ceremony for a man and two women. Would it be permissible for Elaine photography to have declined the business? What about two brothers who wanted to hire them to photograph their commitment ceremony? What would you say in that case? Also, Elaine photography had declined to photograph an even they felt was too violent in nature. Was that discriminatory?
I’d like to hear your feedback on these questions.
Also, many would say that if you are a practicing homosexual, you can’t be a Christian, based on explicit teaching in the New Testament (something I fully affirm), so your analogy breaks down here too.
From both a legal and business standpoint and a Christian standpoint, yes. It is not up to Elaine Photography to judge anyone. It is Elaine Photography’s job to take photos for hire. If they do not like the business climate they find themselves in, then they have the choice to change their business plan. Become a private club, different line of work, accept the level playing field, etc. They should standup for their beliefs and promote them all they can. Discriminating against another class of citizens is not an option.
Just ask any interracial couple from 1948 to 1967. Or “hippies” from the 1960/70’s. Or Vietnam vet. Or women, the list goes on and on.
Just because you believe and follow the Bible, does not mean you can force other to do the same. Every religion has tried that thousands of years and it has been a resounding failed attempt.
Contrary to what you may believe, the USA is not a Christian country. We have the privilege of freedom to chose our religion, or to chose none at all.
Our laws are based on the Constitution, not the Bible, Torah, Karan, Karma sutra or the Sear Catalog. Our Constitution and laws support equality of all. So, back to my point and more importantly the courts, in business, all customers are equal.
If Elaine Photography wanted to limit their practice to just heterosexuals, then clearly naming their business, advertising selectively and according to the law, form a private club with a charter that explicitly outlines the scope of the business.
Just as this case proves, if you hang a shingle next to your door, you don’t know who may come knocking. If this uncertainty is a problem for Elaine Photography, then again they should change their business model to better fit their core beliefs. Who knows, it could help their business.
Go to Amazon and search for “What the Bible really says about Homosexuality”. It is a good read. You will also see several other books listed that may challenge your interpretation of the passages you currently believe condemn homosexuality.
Read other books in conjunction with the Bible and form your own opinions, not just what others tell you to believe.
Homosexuals can be Christian. The two camps are not necessarily opposed to one another.
Mark,
Thanks so much for your post. In response:
1) The Bible is quite clear that all sexual activity outside of male-female marriage is illicit and forbidden, with homosexual practice explicitly mentioned as illicit. I have bought and used all the major pro-gay books on the Bible and homosexual practice (including the one you cited in your post), and as a biblical scholar I can tell you they are terribly flawed. If you want to dig into what the Bible really says about homosexual practice, read instead Robert Gagnon’s The Bible and Homosexual Practice.
So, can someone be a follower of Jesus and a practicing homosexual at the same time? Certainly not, but the good news is that the blood of Jesus is available to all to redeem and transform.
As for reading other books that challenge my opinions, I would dare say, Mark, that I probably have a more extensive pro-gay library than you do, since I make it my business to immerse myself in the viewpoints of those I differ with, first, to better understand their position, and second, to see if there is truth to any of their positions. So, with that it mind, and based on your own advice to me, will you carefully study Gagnon, if you have not already, just as a good starting point.
2) I think you’re missing the point of the issue here. The question is not whether or not America is a Christian nation or whether everyone has to follow the Bible. The point is: Can someone have a religious conviction because of which they do not participate in certain things? The legal answer, Of course! (I should mention in passing, however, that our laws draw a great deal from biblical tradition, as any legal historian can tell you. That’s one reason America has the liberties it does.)
With regard to the specific examples I gave you, you are quite wrong in your answer, from a legal point of view. (Should you be sincere in wanting to know the truth about this, I’d be happy to direct you to the legal sources.) There is no legal obligation for a photographer today to shoot what would be a polygamous commitment ceremony or an incestuous commitment ceremony. Absolutely not.
So, please be kind enough to share with me the legal background to your answer which, in fact, is contrary to the law. In that sense, all customers are not equal, and if a Satanist group came to Elaine photography and said they wanted them to shoot a mock baby sacrifice, it would be unthinkable that Elaine photography would be hauled into court should they decline the business opportunity.
I look forward to hearing your responses.
Thank you for the reading suggestion. Let me do the homework you recommend and get bask with you.
Cheers
Mark,
Thanks for your quick response. I do hope that you’ll find these further studies enlightening and helpful. I look forward to hearing back from you!
For an abbreviated version of Gagnon’s book (a useful, 112 p. starting point), see http://www.westernsem.edu/files/westernsem/gagnon_autm05_0.pdf.
Dr. Michael L. Brown, Mark, and Dan:
Yes it did take me awhile to find this site and we all know the saying, “…good things come to those who wait…” I am overwhelmed at the posture and level of professional debate encountered on this site. Moreover, how could one not respect a person who having a wealth of information, freely share it with others? Thank you all for sharing your knowledge.
At American Age, one of my sites we have dug into this case perhaps more than ADF and we would really like to share with you our knowledge and subsequent findings pursuant to the actual documents used during the proceedings. Therefore, we invite you and your readers to come to American Age and have a look at what really happened. This travesty has been misreported, and a lot of misinformation has been alleged.
Here are the three most informative articles: Here, here, and here.
Thank you again and look quite forward to discussing the matter with you. Cheers!
jps
jon-paul,
Thanks much for the kind words and the very informative links. 2 Cor 13:8!
Dr. Brown,
As stated in my earlier post, most if not all of those covering this unfortunate travesty, simply disregard the facts vis-a-vie Elaine never telling any person that she would or would not do something. That notion as we know, came from the other side.
We meticulously monitored and ‘time-lined’ every bit of correspondence that transpired between the three main parties. It is utterly amazing at what some people will do to cause distress in another’s life.
Again thank you for allowing me to share with you and yours what I’ve covered. And in like response, 1Cor 3: 5-7! Cheers!