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New Mexico Supreme Court: of Faith and Photographs

Americans are an inherently fair people. We are a nation that is held together, not by a common ethnicity, religion, or geography going back to time immortal, but by a belief…ALL MEN ARE CREATED EQUAL. Whether we have always lived up to or even respected that belief is another topic for another time, but rarely are great ideals ever met, but they must be constantly strived for.

There is a fairness in us that says that even if I don’t agree with a person’s way of living, personal beliefs, religious dogma, diet, politics, or whatever, I respect their right to it.

One of these respects is for a person’s religious convictions. Religion is one of those key things that define us at our very core. For any person, throughout his life, many of his labels will change. He will not always define himself by the same profession (I once was a “Consultant” and I am now an “Attorney”). He will not always define himself by the same geography (I was once a “Floridian” and I am now a “Georgian”). But once faith is realized and takes hold to a person’s heart and soul, a person will likely define himself by it for the rest of the days of his life, and only that person’s own name will hold a greater place in defining who he is than his faith.

For people who do not have faith in religion, this is hard to grasp and understand. What’s more, there is a bias against understanding.

Because of this, the First Amendment to the U.S. Constitution says, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” the 14th Amendment has been held to incorporate that to the states.

The Constitution of the State of New Mexico, which begins with the words, “We, the people of New Mexico, grateful to Almighty God for the blessings of liberty, in order to secure the advantages of a state government, do ordain and establish this constitution,” says in Article II, Sec. 11, “Every man shall be free to worship God according to the dictates of his own conscience, and no person shall ever be molested or denied any civil or political right or privilege on account of his religious opinion or mode of religious worship.”

Yesterday, the Supreme Court of the State of New Mexico added an asterisk…”unless you engage in business.”

Now part of that fundamental belief in fairness is the basis behind anti-discrimination laws. The part of the New Mexico Anti-Discrimination Act that is relevant to the case states, “It is an unlawful discriminatory practice for…(F) 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…” NM Stat § 28-1-7.

Under the law a “public accommodation” is defined as “any establishment that provides or offers its services, facilities, accommodations or goods to the public…” NM Stat § 28-1-2(H)

One thing that was clearly established in the case was that Elane Photography as a business and owner Elane Huguenin did not discriminate against homosexuals per se. Her argument was she didn’t agree with and would not endorse the conduct of a same-sex commitment ceremony. Now, the correlation between discriminating against the conduct is the same as discriminating against the individual has been established.

The Supreme Court of the United States made that distinction in Lawrence v. Texas when they said that laws that criminalize homosexual acts (even if they are also illegal for heterosexuals to engage in) are discriminatory. (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” (emphasis added)); id., at 583, 123 S.Ct. 2472.

In other words, the NM Supreme Court has made it clear that the conduct of people that is distinctive to their protected class is just as protected as the person itself in terms of the New Mexico Human Rights Act (and probably the anti-discrimination laws of many states).

The issue of same-sex marriage is a hot-button issue right now where the rhetoric has made it difficult, if not impossible, to discuss the issue in the broader clash of rights. The left has taken the position that you either enthusiastically support same-sex unions are you are a homophobic, bigoted, knuckle-dragging Neanderthal, KKK member, or some combination. In other words, the people championing “tolerance” have no room in their hearts for tolerance. So to explain the broader issues at play, it is important to look at this decision another way.

Suppose there lived in New Mexico a painter. For our illustration we will say his name is Mike D’ Angelo. Mike is considered one of the foremost artists in NM and he is well recognized, for among other things, his paintings of Christian themes. While Mike paints and sells his original paintings, he believes his talent is a gift from God and seeks to glorify God through his work. As good as Mike is, he is still a “starving artist,” so, to make ends meet and buy more paint and canvases, he markets his services to the public. He is frequently hired by local churches who will commission him to paint either scenes from the Bible or portraits of church leaders. He has even been known to paint the entire ceiling of one of the area churches. He is also hired to paint family portraits and create corporate art.

One day, Mike D’Angelo gets a call. It is the high priest for the local congregation of Satan worshipers. Knowing Mike’s talent, he wants to commission Mike to paint a mural for the church’s alter, glorifying Satan and showing Satan’s supreme power over God. As Mike markets his talent to the general public, his painting business is not just part of his artistic expression, but also, under the law in New Mexico, a “public accommodation.”

In addition, as the law prohibits discrimination on the basis of sexual orientation, it also prohibits on the basis of religion. Mike is not free to determine, based on his own religious beliefs, what he will and will not paint for someone who wants to hire him. His choice is either to lie to the Priest of the Church of Satan and say he is just too busy and won’t be able to do it, thereby committing a sin under his religion and only postponing things as he can’t be “too busy” forever. Or he can compromise his faith in a way that will negatively affect him emotionally and spiritually, maybe for the rest of his life. Or, lastly, he can close his doors and find another line of work as we already know he only opened his doors to the public to be able to make enough money to live.

None of those options are consistent with spirit and freedom embodied and protected under our Constitution.

Elane Huguenin used a similar analogy in her argument that the way the lower courts decided would compel a black photographer to photograph a KKK rally. The New Mexico Supreme Court rejected that argument stating “political belief” was not a protected class. I agree that political belief is not a protected class, but, as the Court pontificated in their opinion, conduct expressive of a protected class is, in itself, protected. In other words, as generally only homosexual individuals would engage in a same-sex commitment ceremony, then generally, only white Protestant people engage in Klan rallies. As same-sex marriage was not recognized in NM, then performing a same-sex marriage could be recognized as being just as “political” in expressing a belief that same-sex unions should be recognized as marriage in the State of New Mexico as any political themes and messages made by the KKK. It would not be a persuasive argument for the photographer to say he did photograph white people, just not Klan rallies, if he also photographed events whose membership was open only to blacks or other race groups. If conduct that is nearly exclusive to a protected group is itself protected, then the black photographer MUST be compelled to photograph the Klan rally, even if he disagrees with the nature of the ceremony.

The purpose behind passing anti-discrimination laws was to protect people from unequal treatment based on generally observable characteristics that could not be changed: race, gender, age, physical disability.

To that were added characteristics that were fundamental to our identity as a nation of immigrants that was founded, in part, by those seeking religious freedom: religion, national origin.

In looking at anti-discrimination law, we have come a long way from a time when it meant making sure a person did not have to give up their seat on a bus to a person because they were black and the other person was white. There is usually only one bus, one train, one airplane when you need one. When looking for a place to stay for a night, the location of a hotel is critical. An good education is almost essential to advancement in life. When hungry, a place to sit and each lunch supplies a basic human need. No one needs a wedding cake, a photographer, a florist or any of the other vendors like a person needs a bus at the right time to get them home or an education. What’s more, if a quick Google search is to believed, wedding photography services are not a scarce resource in Albuquerque. Willock could have gone to any number of photographers for the luxury of having one. In the end, she wanted to use the law to punish someone because their religious convictions contradicted Willock’s lifestyle. And that’s what happened.

There is a deeper idea at work here and that is the idea that a person’s work does not belong to that person, but, in fact, belongs to the society as a whole, or, in other words, it belongs to the government. That sentiment can be easily seen in the words of Louise Melling, Deputy Legal Director of the American Civil Liberties Union, which filed an amicus brief in support of Willock, and said the ruling was in line with guarantees made in the Constitution.

“When you open a business, you are opening your doors to all people in your community, not just the select few who share your personal beliefs,” Melling said. “The Constitution guarantees religious freedom in this country, but we are not entitled to use our beliefs as an excuse to discriminate against other people.”

At the 2012 Democratic National Convention, that sentiment was stated explicitly, that we belong to our government. The Founding Fathers believed the exact opposite and established this nation with that belief in mind. In the monarchies of Europe, the people did, indeed, belong to the government. They were the king’s subject and were part of his kingdom. All rights came from the king and could be taken by the king. It was a radicle idea, and by the decision of the New Mexico Supreme Court and the words of Louise Melling, it must still be a radicle idea, that the government belongs to we the people. A government of the people, by the people and for the people cannot also claim to own the people. The 13th Amendment to the Constitution said that people cannot own other people therefore, in the United States, people belong to themselves, and, by extension, the work that they create.

Americans are a fair people because of the ideals we were founded on: ALL MEN ARE CREATED EQUAL. But fairness also dictates that in our equality we are guaranteed the rights to life, liberty, and, equally as important, the pursuit of happiness. That was understood at the time to embody the idea that people choose their own path in life. They could engage in commerce, or not. The could own property, or not. They could take whatever talents and interest the Creator gave them and use that to carve out their own path of self-determination. For a photographer in New Mexico, the Supreme Court put a cap on how she could pursue for herself and her family their own happiness. It was not because she denied someone a need, but because she denied someone something they wanted and she had, but didn’t want to give. In the end, that should scare all of us.