Where does free exercise of religion end, and discrimination start?

Last updated on: August 23, 2013 at 8:24 am by Jane the Actuary

Where does free exercise of religion end, and discrimination start? 2013-08-23T08:24:00-06:00 Jane the Actuary

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Apparently, the state supreme court in New Mexico rejected the appeal of a woman found guilty of discrimination for declining to serve as photographer for a same-sex wedding. According to the blog post explaining the ruling, the court decided that (1) the situation is covered by the anti-discrimination law in the state, (2) she is not protected by her right to free speech or free exercise of religion because she is operating a business, and (3) the state’s Religious Freedom Restoration Act applies only to protection against a very limited set of acts by the government.

So the claim that “religious freedom will be protected” in the case of Illinois’ proposed same-sex marriage is really a very narrow protection. Ministers wouldn’t be required to perform ceremonies and churches to permit them in their buildings — but I would imagine that exception would be narrowed only to churches and ministers who are careful to limit their services to parishoners and provide the church-basement reception venue without charge, to avoid being defined as a public accommodation.

Honestly, I personally have a hard time imagining being thrust into a situation in which you’re being mandated by law to provide a service you find morally wrong, and being expected to cheerfully take pictures of a same-sex ceremony or provide the music at the ceremony or reception or provide a cake with “Congratulations, Adam and Steve” or any number of similar activities. And the response by the gay-marriage supporters is generally either “if you object, you’re a bigot, so I have no sympathy for you” or “don’t be ridiculous — no such couple would ever want to hire anyone who opposed gay marriage and would just take their business elsewhere.”

But this case seems to be following the path of the attorneys who make a business of collecting damages from business owners who haven’t complied with ADA requirements (often due to quite legitimate concerns about cost). One of the commenters on that site, yulva, cites (no link) the original inquiry of the woman who ultimately sued:

We are researching potential photographers for our commitment ceremony on
September 15, 2007 in Taos, NM.
This is a same-gender ceremony. If you are open to helping us celebrate our day
we’d like to receive pricing information.
Thanks

This inquiry was sent via the contact form on this company’s website.

The woman involved was identified as “an EEO Compliance Representative with the Office of Equal Opportunity where she investigates claims of discrimination and sexual harassment …”

In other words, she was acting as a tester, knowing that if she found someone who rejected providing services for gay commitment ceremony, she could sue for attorney’s fees. And once the precedent has been established, there is no reason to think that this won’t become commonplace, as a way to smoke out and punish those who are “bigots” in the eyes of SSM proponents.

How far does this go? In the case of the civil rights laws insisting that blacks be served at lunch counters, they were fighting discrimination on the basis of skin color. In this new era of “anti-discrimination” laws, we’re forbidding individuals from making distinctions on the basis of viewpoint. Can a printer refuse to provide services to a pro-life protester who wants extra-large signs of aborted fetuses? Can a hotel chain refuse to provide services for the KKK annual convention? Or, more closely related, could a wedding-services provider refuse to provide services to a commitment ceremony for a threesome?

In this case, the law is stubbornly, unjustly blind — classing the difference between a gay marriage and a traditional marriage as merely one of the sex of the parties, and rejecting the possibility that an individual could have a moral/religious opposition.

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