The State of New Mexico vs. Freedom of Association

In 2006, Vanessa Willock asked Elaine Huguenin, co-owner of Elane Photography in Albuquerque, to photograph her same-sex commitment ceremony. Huguenin declined, however, citing her and her husband’s religious belief that marriage should be between a man and a woman.

Although Willock was able to find another photographer, she nevertheless filed a complaint against Elane Photography with the New Mexico Human Rights Commission. In January of 2008, the Commission ruled that Huguenin had engaged in illegal discrimination, and ordered her to pay $6,637.94 in attorney’s fees to Willock and her partner.

Huguenin appealed the ruling to the Court of Appeals and then to the state Supreme Court, seeking a First Amendment religious exemption to the state Human Rights Act, which prohibits discrimination on the basis of sexual orientation. Last month, the New Mexico Supreme Court refused to grant that exemption, ruling that photographers do not have a First Amendment right to refuse to photograph same-sex weddings.

Firstly, the Court was perhaps correct to reject the religious exemption–it would have been better to have tossed the law altogether. (If Christian conservatives had any courage, they would work to have these laws overturned, rather than merely trying to carve out exemptions for God’s chosen few.)

Secondly, there is nothing particularly egregious about this case that should justify the outrage it has generated on the right, especially not when considering that anti-discrimination laws have always infringed on the rights of those holding non state-approved viewpoints.

(I have a sneaking suspicion that many of the religionists condemning the New Mexico court’s decision would feel differently if the case had involved a lesbian photographer who refused to shoot a Christian wedding.)

Some liberty-minded individuals have defended Elane Photography’s right to discriminate while attempting to distinguish this case from, say, a hotel refusing to rent a room to a black family–and to explain why discrimination would be permissible in the former but not the latter.

But these individuals are merely engaging in semantic gymnastics. Liberal commentators are correct to point out that there is no moral difference between this case and acts of private racial discrimination–although, as often is the case, their conclusions are backwards.

Let’s be clear about what’s happening here: The State is punishing one party for refusing to associate with another. Rather than protecting freedom of association, the State is violating it.

If Jane Smith owns a business, she should have the right to refuse to do business with any person–for any reason. Those who object to her discrimination have the right to urge others to boycott her, to criticize her in the media, or to simply take their business elsewhere.

If flower shop owner Jane Smith refuses to provide flowers for John Doe’s same-sex wedding because of her opposition to gay marriage, she has not infringed on his rights–because his rights don’t include the right to force others to associate with him.

The principles that apply here apply to any act of discrimination–whether the target is blacks, atheists, or homeless John Stamos look-a-likes. Discrimination is merely the manifestation of the right to freedom of association.

When the State violates this freedom of association by telling us who we can and cannot choose to associate with (and which reasons are acceptable for refusing to associate), it is engaging in coercion.

Elaine Huguenin and her husband should have the right to refuse to photograph same-sex ceremonies if they so choose. It shouldn’t matter whether their reason for refusing is religious or secular–it’s their business and therefore should be their choice and theirs alone.

Similarly, if a racist hotel owner does not wish to rent to blacks, that should be his right as well. Freedom of association doesn’t apply only to those with whom we agree. As reprehensible as private discrimination may sometimes be, it does not constitute coercion. (If a state passed a law forbidding gays from patronizing Christian businesses, on the other hand, that would be coercion.)

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