Tuesday, August 19, 2008

Must we give up our First Amendment Liberties?

Consistent with recent themes and the provocative query in an earlier comment from a reader, I believe that Mark Hemingway in his article below provides further validation of what is truly at risk. This is not simply about Marriage in California, as important as that is, this is about the freedoms and liberties that we share in our nation. (highlights added for emphasis)

Must we give up our First Amendment liberties?


If you’re strictly mercenary about it, the recent California supreme court decision legalizing same-sex marriage has its upside. According to a recent study by the UCLA School of Law, the ensuing rash of weddings is expected to pump $683.6 million into the state economy over the next three years. With movement toward legalizing same-sex marriage and civil unions across the country, it would seem to be a great time to be a wedding photographer.

But same-sex marriage is a complex issue, and nothing better illustrates that than the plight of the humble wedding photographer. “On the surface, this sounds like a gold mine for wedding photographers. But it’s actually more like a minefield,” explained photographer Sean Cayton on the photography website Black Star Rising. “You see, wedding photographers get most of their business from word-of-mouth and referrals. Many have close relationships with specific churches, which may have very strong beliefs for or against gay marriage.”

Of course, if you’re a wedding photographer who would like to avoid the minefield that might ensue should you offend churches in your community, you could end up stepping into another minefield that might be even more problematic — you might find yourself on the wrong end of a lawsuit.

In 2006, Vanessa Willcock filed a complaint with the New Mexico Human Rights Commission against a company called Elane Photography for refusing to photograph her gay commitment ceremony. The business is owned by a husband and wife — evangelical Christians who have made a decision not to photograph ceremonies related to gay unions. In April, the New Mexico Human Rights Commission found against Elane Photography and ordered it to pay $6,637 for Willcock’s legal fees in bringing the complaint. The decision has been appealed.

Of course, Elane Photography is hardly alone. There’s been an effort in the courts not just to legalize gay marriage but to force acceptance of it as a matter of conscience and religious practice:

In Ocean Grove, N.J., a lesbian couple brought a complaint to the New Jersey Division of Civil Rights against a Methodist church for not allowing them to use a pavilion on the church’s beach-front property for their civil-union ceremony. The church had offered the couple use of its property and boardwalk for the ceremony, just not use of places the church considered “worship spaces.” In January, an administrative judge with the Division of Civil Rights found against the church and stripped the pavilion area of its tax-exempt status for the church’s refusal to comply with the state’s sweeping anti-discrimination law. This will reportedly cost the church some $20,000 a year. Notably, the tax exemption was tied to the church’s making its property publicly accessible, rather than to any religious criterion — but the Department of Environmental Protection managed to lift the Methodists’ exemption within one week of the complaint’s filing, even though it isn’t the agency in charge of lifting tax exemptions. The church is appealing the decision.

In California, the state supreme court is hearing a case against San Diego fertility doctors who are being sued because religious objections led them to refuse in vitro fertilization to a lesbian couple. Legal observers noted that the court — the same one that just legalized same-sex marriage — seemed hostile to the doctors’ defense during oral arguments in May.

In 2006, Catholic Charities in Boston stopped providing adoption services since state law would have compelled them to facilitate adoptions by same-sex couples. The archdiocese was prepared to provide referrals for same-sex couples looking to adopt, but that wasn’t acceptable to the state.

Same-sex marriage has turned out to be a fertile breeding ground for litigation. “The basic argument is: Once the state recognizes us as married, no private group outside of the sanctuary of the church is entitled to treat us otherwise, and various civil-rights laws banning discrimination over sexual orientation ought to take priority over religious liberty in every case,” says Marc D. Stern, general counsel of the American Jewish Congress and a contributor to the forthcoming book, “Same-Sex Marriage and Religious Liberty.”

Opponents of same-sex marriage have long criticized it on the ground that it redefines what marriage actually is. In its recent decision legalizing same-sex marriage, the California supreme court noted that the state’s domestic-partnership law already gave gay couples “virtually all of the legal rights and responsibilities accorded married couples under California law.” And yet legal activists continued to push for “marriage.”

Stern makes clear that he’s not saying these legal issues are necessarily an argument against same-sex marriage. “I’m not saying that [people] ought to be opposed to gay marriage or that in every case the religious claim triumphs. But there really is a problem, in particular with regard to free speech. There are disturbing indications that in schools and elsewhere, certain views will become officially anathema.”

Stern notes that, outside the U.S., lawsuits and legislation ostensibly in favor of human rights have led to tighter restrictions on religious expression and religious institutions. In England, a Catholic school has been prohibited from firing an openly gay headmaster, and parochial schools there are forbidden by law to teach that homosexuality is a sin. In Canada, the Alberta Human Rights Commission recently took the draconian step of issuing a ruling forbidding a Christian pastor to make “disparaging” remarks about homosexuality — or even to repeat Biblical condemnations — for the rest of his life. And in 2005, the Knights of Columbus were fined by the British Columbia Human Rights Commission for refusing to rent their hall for a lesbian wedding. (These Canadian human-rights commissions are the same bodies of dubious legal authority in which National Review’s Mark Steyn and the Canadian newsweekly Maclean’s are currently under attack.)

And aside from threats to freedom of religious expression, there’s also the basic matter of free speech. Again, consider the wedding photographer. The Willcock complaint was decided on the basis of treating Elane Photography strictly as a business. The New Mexico Human Rights Act forbids “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 . . . sexual orientation.”

But is a wedding photographer strictly offering a business service? Photography is considered a form of artistic expression, and wedding photographers hold the copyright for their work. In this instance, putting a seal of approval on same-sex marriage might end up requiring a legal definition of what is art and what is a service, aside from the question of whether a person can be compelled to produce either.

While the courts and voters around the country decide to what extent they’re willing to redefine marriage, they might consider how many First Amendment rights they want to redefine in the process. Talk about a minefield!

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