Is Same-Sex Marriage Eroding Religious Liberties?

Lesbian weddingby Doughlas Remy

In a continuation of his ongoing “Tolerance Vigilantes” series, Gil Bailie takes us to the National Review Online, where Kathryn Jean Lopez (“Will Religious Liberty Survive Same-Sex Marriage?” 8/23/13) opines about the demise of religious liberty in a recent ruling by Justice Richard C. Bosson of New Mexico’s Supreme Court. Citing New Mexico’s anti-discrimination laws, Justice Bosson denied Elane Photography the right to refuse services to a lesbian couple who were about to have a commitment ceremony.

Justice Bosson wrote the following opinion:

In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins [owners of Elane Photography] 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. I therefore concur.

Mr. Bailie quotes Jim Campbell, legal counsel for the Alliance Defense Fund:

The idea that free people can be compelled by law to compromise the very religious beliefs that inspire their lives as the price of citizenship is a chilling and unprecedented attack on freedom.

Mr. Bailie deleted the following comment from Timothy Brock not long after it was posted:

Timothy Brock:

Thanks for posting this. The NM case is similar to ones in five other states, and I think they give us an opportunity to reflect again on whether the state should ever impose any restrictions on religious liberty.

“Religious liberty” sounds like a wholesome concept that everyone should support, and in fact it goes more or less unquestioned until one person’s expression of it rubs against another’s or impinges on our basic civil rights. Then, there is a variety of possible responses, including (a) “Freedom for me but not for thee” (my religion trumps both your religion and your civil rights), and (b) the kind of compromise that Justice Bosson sees as necessary to “lubricate the varied moving parts of us as a people.”

I think Justice Bosson has it exactly right, and he expressed his position very eloquently.

So the answer to the author’s question—”Will religious liberty survive same-sex marriage” is unquestionably “yes,” but that liberty will not be absolute. It never was, at least not in this country.

Randall Jennings responds:

This article goes through some of the more prominent legal entrails of the decision. I come to the opposite conclusion from that of the author. Most interesting for me is the fact that one legal precedent is conflating the idea of a ‘practice’ with one’s person. I suppose some of these individual ‘practices’ are deemed more worthy of legal protection than others.

“Brubaker5” responds to Ms. Lopez’s article with the much-worn “halal butcher” argument: 

ImageI wonder, would a halal butcher be required to carry pork because customers demanded it? It’s a butcher shop. They sell meat. The only reason they don’t sell pork is their beliefs. Should that Islamic butcher be compelled to serve couples who are openly homosexual? Should Islamic beliefs be dismissed like Christian beliefs?

The only rational response would be to repect the beliefs of atheist, Muslim, Chistian and Jew alike. What actual public good is served by using the force of law to coerce people into selling a product or service which their beliefs would prevent them selling? To do so, as in this case, is quite simply and transparently vindictive.

My response to Brubaker5:

Just think about it. A photographer running a photography studio sells photography, not sculpture. A halal butcher sells beef and chicken and lamb, but not pork.

Neither the photographer nor the butcher is required by law to sell other products. However, neither is allowed to discriminate against any of their customers on the basis of race, religion, sexual orientation, etc.

So the Halal butcher serves anyone who enters his shop, and the photographer serves anyone who enters her studio.

If a customer says to the photographer, “I want sculpture, not photography,” then the photographer refers that customer to an art gallery. She does not do so because she disapproves of the customer’s preferences, but because she is in the business of photography.

But to say, “I only do photography for heterosexuals” is undisguised discrimination, and there is no other way to construe it.

Brubaker5:

That’s an interesting line of reasoning, but it sidesteps the essence of my point:

The halal butcher sells a variety of meat, but doesn’t sell pork—because of his religious beliefs. The photographers sell photographs, but not for homosexuals—because of their religious beliefs.

Despite your attempt to rationalize different treatment, each business is making a business decision regarding which products or services they will provide, and they are doing so based on their religious beliefs.

Bottom line: The first time that I see a Muslim successfully prosecuted or sued for exercising their religious beliefs, I’ll get on board for forcing Christians to violate their beliefs.

My response to Brubaker5: 

While it is true that both the halal butcher and the NM photographer are motivated by religious belief, their intentions are not equivalent. The butcher has a niche market for customers who want meat slaughtered in a particular way, and pork is not on the menu. His intention, much like that of a vegan restaurateur, is to serve a specialized clientele. He obviously has no intention of excluding anyone, and if a Christian omnivore enters his shop to buy meat, he will serve them. This is no more discriminatory than opening a coffee stand without putting beer on the menu.

The NM photographer, however, is clearly offering her services to everyone EXCEPT homosexual couples. Whereas the butcher will sell his meat to anyone, the photographer is excluding certain customers because of their sexual orientation. Such discriminatory treatment frays the social fabric and sooner or later creates an underclass of people who can only find goods and services within their own communities, which are known as “ghettos.”

Regarding your comment about Muslims: Why do you think that they are not constrained by U.S. law? Stoning adulteresses is just fine under Sharia law, and it is practiced in Saudi Arabia, but we don’t find it happening in the U.S. Neither do we find female genital mutilation among Muslims in this country except where it is practiced secretly and outside the law.

So my response to your comment about Muslims is a challenge:

If the Muslims can bend to the laws of our country, why can’t Christians?

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