The Right Opinion

The Tangled Web of Conflicting Rights

By George Will · Sep. 16, 2012

WASHINGTON – Elaine Huguenin, who with her husband operates Elane Photography in New Mexico, asks only to be let alone. But instead of being allowed a reasonable zone of sovereignty in which to live her life in accordance with her beliefs, she is being bullied by people wielding government power.

In 2006, Vanessa Willock, who was in a same-sex relationship, emailed Elane Photography about photographing a “commitment ceremony” she and her partner were planning. Willock said this would be a “same-gender ceremony.” Elane Photography responded that it photographed “traditional weddings.” The Huguenins are Christians who, for religious reasons, disapprove of same-sex unions. Willock sent a second email asking whether this meant that the company “does not offer photography services to same-sex couples.” Elane Photography responded “you are correct.”

Willock could then have said regarding Elane Photography what many same-sex couples have long hoped a tolerant society would say regarding them – “live and let live.” Willock could have hired a photographer with no objections to such events. Instead, Willock and her partner set out to break the Huguenins to the state's saddle.

Willock's partner, without disclosing her relationship with Willock, emailed Elane Photography. She said she was getting married – actually, she and Willock were having a “commitment ceremony” because New Mexico does not recognize same-sex marriages – and asked if the company would travel to photograph it. The company said yes. Willock's partner never responded.

Instead, Willock, spoiling for a fight, filed a discrimination claim with the New Mexico Human Rights Commission, charging that Elane Photography is a “public accommodation,” akin to a hotel or restaurant, that denied her its services because of her sexual orientation. The NMHRC found against Elane and ordered it to pay $6,600 in attorney fees.

But what a tangled web we weave when we undertake to regulate more and more behaviors under overlapping codifications of conflicting rights. Elaine Huguenin says she is being denied her right to the “free exercise” of religion guaranteed by the U.S. Constitution's First Amendment and a similar provision in the New Mexico constitution. Furthermore, New Mexico's Religious Freedom Restoration Act defines “free exercise” as “an act or a refusal to act that is substantially motivated by religious belief,” and forbids government from abridging that right except to “further a compelling government interest.”

So New Mexico, whose marriage laws discriminate against same-sex unions, has a “compelling interest” in compelling Huguenin to provide a service she finds repugnant and others would provide? Strange.

Eugene Volokh of the UCLA School of Law thinks Huguenin can also make a “compelled speech argument”: She cannot be coerced into creating expressive works, such as photographs, which express something she is uncomfortable expressing. Courts have repeatedly held that freedom of speech and the freedom not to speak are “complementary components of the broader concept of 'individual freedom of mind.'”

A New Mexico court, however, has held that Elane Photography is merely “a conduit for another's expression.” But the U.S. Supreme Court (upholding the right of a person to obscure the words “Live Free or Die” on New Hampshire's license plates) has affirmed the right not to be compelled to be conduits of others' expression.

New Mexico's Supreme Court is going to sort all this out, which has been thoroughly reported and discussed by the invaluable blog The Volokh Conspiracy, where you can ponder this: In jurisdictions such as the District of Columbia and Seattle, which ban discrimination on the basis of political affiliation or ideology, would a photographer, even a Jewish photographer, be compelled to record a Nazi Party ceremony?

The Huguenin case demonstrates how advocates of tolerance become tyrannical. First, a disputed behavior, such as sexual activities between people of the same sex, is declared so personal and intimate that government should have no jurisdiction over it. Then, having won recognition of what Louis Brandeis, a pioneer of the privacy right, called “the right to be let alone,” some who have benefited from this achievement assert a right not to let other people alone. It is the right to coerce anyone who disapproves of the now protected behavior into acting as though they approve it, or at least into not acting on their disapproval.

So, in the name of tolerance, government declares intolerable individuals such as the Huguenins, who disapprove of a certain behavior but ask only to be let alone in their quiet disapproval. Perhaps advocates of gay rights should begin to restrain the bullies in their ranks.

© 2012, Washington Post Writers Group


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Capt. Call in New Mexico said:

The left and its many manifestations believe in tolerance only for their own views. Everyone else must conform to their way of thinking, no matter how illogical, stupid, and unreasonable. Homosexuals will never live and let live. Homosexuality is unnatural, deviant, deadly, and a disorder of the mind. God forgive America for "tolerating" homosexuality!

Sunday, September 16, 2012 at 12:46 AM

Ct-Tom in NC said:

I don't recall any discussion of these things in the Adams-Jefferson correspondence. Imagine what they would have thought!

Has common sense and ordinary civility been lost entirely?

Sunday, September 16, 2012 at 8:26 AM

Kevin from Arkansas in USA said:

"advocates of tolerance"

Nobody hates more than a "tolerant" liberal who disagrees with you.

Sunday, September 16, 2012 at 8:41 AM

Oathkeeper Scott in Texas replied:

Succinct, completely on target comment.

Sunday, September 16, 2012 at 11:08 AM

Doktor Riktor Von Zhades in Western KY said:

The neomarxist view of justice can be termed as "Just us".

Sunday, September 16, 2012 at 8:57 AM

Dr. Thomas E. Davis, Colonel, USA (ret) in Monroe Twp, NJ said:

May AIDS and a horrible and painful death be your lot. You will never get any sympathy, kindness, solace or assistance from me. You violate every behavioral norm and God's law to boot. You neither have nor are entitled to any special consideration simply because you practice the degrading sport of hoimosexuality. Oh Yes, you have a champeeen in the White House, for NOW. He will be forced to vacate come January 20, 2013. We are going to dump all the garbage and trash on that day.

Sunday, September 16, 2012 at 12:21 PM

Gregory in Yakima Wa. said:

George Will carefully slants a story to appeal to a traditional homophobic readership (that's you kids). He asks "would a photographer, even a Jewish photographer, be compelled to record a Nazi Party ceremony?"

By doing so Will poisons his argument. There are religious people claiming to be Christians, perhaps right here on the P.P., who believe God sanctions killing homosexuals. Should they be able to carry out heinous crimes under cover of religious liberty? What if a mechanic refuses to repair a car because the client is believed to be homosexual?

I don't have all the answers but I'm pretty sure intolerance isn't one of them. And by the way:Oliver North's conviction was overturned as a result of ACLU intervention.

Sunday, September 16, 2012 at 12:27 PM

GregG in Dallas, TX replied:

You have none of the answers, judging by your post. Your understanding of "intolerance" is a distortion, yours or distorted by others and accepted naively by you. Killing homosexuals would not, in any (non-Muslim) court be accepted as "expression." Either you know that and have contempt for the intelligence of others, or you don't know that in which case you should post only on celebrity fan sites.

Sunday, September 16, 2012 at 2:56 PM

RedBaker in Florida replied:

Poisons? Nonsense. Leftists are not tolerant of the freedom of others, so they make up stories of extreme, bizarre behavior as their straw men to knock down. They want to outlaw everything they don't like, and make mandatory all their own perverse preferences.

Monday, September 17, 2012 at 12:50 PM

Gregory in Yakima Wa. said:

Here is a small sample from a very long history of theACLU defense of religious rights. Enjoy:

The ACLU vigorously defends the rights of all Americans to practice their religion. But because the ACLU is often better known for its work preventing the government from promoting and funding selected religious activities, it is sometimes wrongly assumed that the ACLU does not zealously defend the rights of all religious believers to practice their faith. The actions described below – over half of which were brought on behalf of self-identified Christians, with the remaining cases defending the rights of a wide range of minority faiths – reveal just how mistaken such assumptions are. (The list below includes examples from the past decade only.)
* * * *
The ACLU of New Mexico (2012) filed a lawsuit on behalf of two Christian street preachers who were arrested multiple times for exercising their First Amendment rights by preaching in public.
The ACLU and the ACLU of Texas (2012) filed a brief in support of an observant Jewish prisoner’s right to receive kosher meals.
The ACLU of Texas (2011) opposed a public high school’s policy prohibiting students from wearing visible rosaries and crosses in the Brownsville Independent School District.
The ACLU of Nebraska (2011) opposed a policy at Fremont Public School that would prevent students from wearing Catholic rosaries to school.
The ACLU and the ACLU of Southern California (2011) filed a lawsuit on behalf of a Sikh inmate who has faced multiple disciplinary sanctions for refusing to trim his beard on religious grounds. Keeping unshorn hair is one of the central tenets of the Sikh faith.

Sunday, September 16, 2012 at 1:44 PM

Gregory in Yakima Wa. said:

The ACLU of Virginia (2011) defended the free religious expression of a group of Christian athletes in Floyd County High School who had copies of the Ten Commandments removed from their personal lockers.

The ACLU and the ACLU of Southern California (2011) filed a lawsuit on behalf of a Sikh inmate who has faced multiple disciplinary sanctions for refusing to trim his beard on religious grounds. Keeping unshorn hair is one of the central tenets of the Sikh faith.

The ACLU of Connecticut (2011) filed a lawsuit on behalf of a Naval officer who sought recognition as a conscientious objector because of his Christian convictions against war. After a period of intense religious study, reflection, and prayer, he had come to realize that his religious beliefs were in conflict with his military service. The officer's request was subsequently granted and he received an honorable discharge.

The ACLU of Southern California (2011) filed a lawsuit against the FBI alleging that an agent had infiltrated a California mosque and violated the constitutional rights of hundreds of Muslims by targeting them for surveillance because of their religion.

The ACLU of Colorado (2010) supported the rights of students in Colorado Springs School District 11 to wear crosses, rosaries, and other religious symbols. A middle school had announced a policy forbidding students from wearing certain Christian symbols unless they were worn underneath their clothing.

Sunday, September 16, 2012 at 2:12 PM

Wayne in Hinesville, GA said:

I believe the point Mr. Wll was trying to make is that a photographer has the right to decide where and what type of photos he/she will take. If these same people had refused to photograph people involved in pornographic sexual activity would the result have been the same? It all comes down to your moral code and what you will or will not do to infringe upon that code. Our government (both federal, state,and local) has become so politically correct that it infringes upon the very freedom it is sworn to protect. You are no longer allowed to abide by your beliefs if they don't conform to the secular world. If you are a Christian or any other Religion that does not go along with the secular world view then you are condidered to be outside of the mainstream of American life. The homosexuals, lesbians, and atheists are a small minority of people in this country but their agenda is being pushed by the government no matter what the majority thinks or believes.

Sunday, September 16, 2012 at 2:13 PM

Gregory in Yakima Wa. said:

So...I guess you agree with the ACLU when it defends your religion but not others?

In any case your candidate is being rejected by the public. I know your hateful little hearts are all set on seeing Obama repudiated, but the Republican creed of Ayn Rand economic philosophy and Sharia Christianity is in a death spiral.

I wonder how the party will be named after Obama wins re-election: New Republican Party, Reformed Republican Party, Separation of Church and State Party. Boy Howdy, We've Learned Our Lesson, Religion Free Party?

Sunday, September 16, 2012 at 3:05 PM

Bob J in Marcellus MI said:

stop with all this election BS. Let's for once stick to what people are going to do and how they are going to do it without all the snide remarks / verbage someone dreams up. Fire the congress and start from scratch because so far nobody is listening to tne average Joe American and we are in big trouble !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Sunday, September 16, 2012 at 8:58 PM

XCpt in the ether said:

Seems to me the couple should have settled out of court and accepted the photography job (paid in full up front) then just done a really poor job of taking pictures. All photos could have "accidentally" removed the heads, been out of focus, poorly framed, or badly printed without redeye reduction. The "newlyweds" could argue about getting their money back and the photographers could clearly argue that there are no guarantees that you will ever like the picture that is taken of you.

Monday, September 17, 2012 at 11:58 AM

Ted R. Weiland in Nebraska said:

When so-called God-given rights became the emphasis of this government instead of God-expected responsibilities, Pandora's box was opened.

The Scriptures provide no evidence of God-given (or unalienable) rights. Even life and liberty are not rights, but rather responsibilities delegated by Yahweh. Of course, rights are much more popular than responsibilities. Everyone, including homosexuals and infant murderers, demand their rights, but few are interested in fulfilling their responsibilities.

The Puritan idea of rights and liberty was quite different from what the framers had in mind:

"John Winthrop [first governor of Massachusetts Bay Colony] … reminded his fellow-citizens of Massachusetts that a doctrine of civil rights [as in the Declaration of Independence and the Bill of Rights] which looked to natural or sinful man as its source and guardian [as in the Preamble] was actually destructive of that very liberty which they were seeking to protect. True freedom can never be found in institutions which are under the direction of sinful men, but only in the redemption wrought for man by Jesus Christ. Christ, not man, is the sole source and guarantee of true liberty." (C. Gregg Singer, A Theological Interpretation of American History (Phillipsburg, NJ: Presbyterian and Reformed Publishing Co., 1964) p. 19.)

R.J. Rushdoony pointed out the sophistry of governments based upon freedom:

'….[A] society which makes freedom its primary goal will lose it, because it has made, not responsibility, but freedom from responsibility, its purpose. When freedom is the basic emphasis, it is not responsible speech which is fostered but irresponsible speech. If freedom of press is absolutized, libel will be defended finally as a privilege of freedom, and if free speech is absolutized, slander finally becomes a right. Religious liberty becomes a triumph of irreligion. Tyranny and anarchy take over. Freedom of speech, press, and religion all give way to controls, totalitarian controls. The goal must be God’s law-order, in which alone is true liberty." (Rousas John Rushdoony, The Institutes of Biblical Law (The Presbyterian and Reformed Publishing Company, 1973) p. 581.)

Tuesday, September 18, 2012 at 9:25 AM

Army Officer (Ret) in Kansas said:

For the record: there is no such thing as "homophobia." Just sayin'...

And if Gregory does not understand the difference between actually killing someone and declining to conduct business with that person, he's even more delusional than I thought - and that's really saying something.

Tuesday, September 18, 2012 at 11:45 AM

mm in Toppenish, WA replied:

Yeah, I think it is pretty much the same thing ;-) At least from his POV. And shouldn't we all just respect and embrace that.

Tuesday, September 18, 2012 at 1:01 PM

Melissa in Denver said:

‘Woe to those who call evil good and good evil, who put darkness for light and light for darkness, who put bitter for sweet and sweet for bitter. Woe to those who are wise in their own eyes and clever in their own sight.’ Isaiah 5:20-21 “He cometh to judge the earth: he shall judge the world with righteousness.”—Psalm 96:13

Tuesday, September 18, 2012 at 3:29 PM