Must we give up our First Amendment liberties?
If you’re strictly mercenary about it, the recent
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 2006, Catholic Charities in
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
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
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!