Freier Column: Courts Set “Price Of Citizenship” Too High


New Mexico State Supreme Court Justice Richard Bosson, in a case involving Elane Photography, writing for the unanimous majority, stated that someone may be “compelled… to compromise their religious beliefs”, and that compromise is “the price of citizenship”.

Seven years ago Vanessa Wilcock asked Elane Photography to photograph her same sex commitment ceremony between her and her same-sex partner.  Elaine and Jon Huguenin, owners of Elane Photography, declined citing their faith based belief supporting traditional marriage.  They would gladly take pictures of the two individuals, but not of the ceremony, and would assist in finding another photographer.

Wilcock, despite finding another photographer, filed a complaint with the New Mexico Civil Rights Commission, alleging that Elane had violated the state’s ant-discrimination law based on the sexual orientation clause.  The New Mexico law prohibits discrimination in public accommodations, in this case interpreted as “any establishment that provides or offers its services…..or goods to the public”.  Elane Photography was classified in the “public accommodations” category.

The Civil Rights Commission ruled against Elane Photography, as did the appeals court, and eventually the New Mexico Supreme Court—even though New Mexico has not legalized same-sex civil unions or same-sex marriage.

Justice Bosson wrote that this case “provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice”, while he demonstrated utter disregard for the First Amendment  religious “free exercise” clause.  In other words, the New Mexico anti-discrimination law based on sexual orientation trumps the First Amendment rights of conscience and religious liberty.

The Justice admonished the Huguenins, writing “they have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different..this is the price of citizenship”.  Their belief may be protected but not their conduct, not their actions.  Of what benefit is such protection?  The First Amendment guarantees “the free exercise” of religious beliefs, not just an internal belief, but an outward expression—“the free exercise thereof”.

Equally ironic is the courts reference to fairness, equality, and liberty while ordering the Huguenins to compromise their sincerely held beliefs and to abandon their constitutional liberties.  Shouldn’t the call to “compromise to accommodate the contrasting values” apply to the plaintiff couple?

Maybe this ruling is more about mandatory affirmation of the same-sex agenda than about meting out justice– even in a state where same-sex marriage not the law.  And if religious liberty stands in the way, the First Amendment loses.

Today in North Dakota, the constitution defines marriage as between one man and one woman.  The 2009 and 2013 legislatures defeated attempts to codify anti-discrimination bills containing sexual orientation as criteria.  Recently, the Grand Forks City Council has ratified an anti-discrimination sexual orientation ordinance pertaining to its employees and facilities, and is now pursuing the “public accommodations” component as used in the New Mexico case, for the entire city.  The Fargo City Commission is contemplating an ordinance as well.

The Founding Fathers knew well the importance of adopting the Bill of Rights and purposely chose to protect religious liberty as their very First Amendment.  Today religious liberty is in jeopardy, and if it fails, liberty itself will fall.

Tom Freier

Tom Freier is the executive director of the North Dakota Family Alliance.

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  • Roy_Bean

    “Shouldn’t the call to compromise apply to the plaintiff?” No, we never compromise to the right, only to the left. It’s a one way street.

    • sbark

      ….and once again, the Conservative right simply reacts to another advancement in social liberalism……..the key word is another, because there is always another step, another intrusion, another perceived right……there is no end to the endless forced compromise.
      The left now calls trampling 1st and 4th amendment rights “enlightenment”…….I’m sure Marx, Stalin and Mao said the same thing in so many words……..and then we have the enablers, tolerance is the 1st sign of a dying society. Tolerance is the 1st sign of no principles or convictions. And so here we are.

  • zipity

    “Bipartisan” and “compromise” mean cave in to the demands of the Left.
    Never the other way around. Get with the program.

    • Goon

      And anything less to the left is nonpartisanship. Right now, the French Republicans in the House and Senate are giving Obumble almost everything that he asks for.

  • sbark

    The nice thing about the 1st Amend used to be—even though you had the right to say anything you want…………people were not forced to listen to it if they didn’t want to……….
    Court actions like this changes that and forces the Homosexual agenda onto the public and forces people to have to listen to this quasi religious cult…….one could parallel “coming out” now with a bar mitzfa, its gotten to that level. Notice that NJ Gov Christie just signed a law against conversion theapy for youth—ie the Radical gay left from kindergarten on has free reign on recruitment of youth into their religion. How long until parents are called before the courts, let alone churchs because of their “abuse”?
    As our military fills up with homosexuals, just wait for a “married couple” from some military base to be moved to Minot AFB—and their marriage is then forced onto states like N.Dak——-who can be against a Vet after all?

  • Captjohn

    Well written Tom. I am so tired of activist judges at every level.

  • MrSkeptic

    “Today religious liberty is in jeopardy, and if it fails, liberty itself will fall.”

    Slippery slope fallacy.The only thing that will fail is discriminating against people for imaginary reasons. New Mexico did the right thing! It is similar to what has been done in counseling. Counselors-in-training have been kicked out of graduate programs for refusing to provide services to GBLT clients for religious reasons. It is nice to know that secular-humanist values are trumping religious values in America! It shows we are becoming more and more enlightened.

    • sbark

      quote…… It is nice to know that secular-humanist values are trumping religious values in America! It shows we are becoming more and more enlightened.
      …….and then we sit and wonder why a Mylie Cyrus did what she did………why black youths now kill because they are “bored”, why gangs rule the streets of our major cities
      …..because they are enlightened with out the burden of relgous values………
      This country can survive an Obama—–it cannot survive with thought like that. Your loyalty to the USA as an ongoing society has dropped out of your top 10………

      • MrSkeptic

        Even funnier!

    • colnzgprnts

      Wow! A new meaning of ‘enlightened'; Our country for more than 200 years was a beacon for those escaping political systems that did not allow freedom of religion. Our country was a refuge for those who wanted to live where they could enjoy property ownership without interference from the king.

      Now we learn that to be enlightened is to wear the yoke of slavery as the trappings of ‘good citizenship’ To be enlightened is to deny the existence of our God. To be enlightened is to subjugate our values to whatever our ever-changing masters put forth as the whim of the day. I get so confused trying to discern between the teachings of Mao, IIdi Amin, Hitler, Stalin, Obama, Jane Fonda or a thousand others – my moral compass is spinning out of control!

      • MrSkeptic

        Funny! :)

    • Brad

      Imaginary reasons are like imaginary “orientations.”

    • JoeMN

      So denying a certain group of people their right to freedom of expression is “enlightenment” ?
      So tell me oh master of righteousness.
      How do restrictions on freedom amount to greater “enlightenment” ?
      How can society become more “enlightened” through brute force ?
      Stalin, Lenin, Pol Pot and Mao (among others) came up with similar ways of imposing “enlightenment”upon their subjects.

      • yy4u2

        He/she should use a screen name more indicative of their thoughts. Thinking septic is much more appropriate.

  • Gern Blanston

    I guess this must mean an end to allowing draftee to avoid fighting in wars due to their religious beliefs. Can’t wait to hear how part of their duty as citizens is to compromise their beliefs.

  • WOOF

    Do not suffer a witch to live.

    • Thresherman

      Has there been a rash of witch burnings since 1789?

      • WOOF

        There would be if “religious liberty”
        were a sustainable defense.
        B has been substituted for W
        in the modern era.

        The judge he smiled as he picked up his pen
        99 years in the Folsom pen
        99 years underneath that ground
        I can’t forget the day I shot that
        bad bitch down

        • JoeMN

          Be sure to thank a Christian for enshrining your right to post stupidity Woof.

  • Waski_the_Squirrel

    I see a big difference between providing a personal service and being a public accommodation. Since I moonlight with some photography, believe that I sit up and take notice of new items like this! Articles like this make me think I don’t want to go into it any deeper.

    Suppose I have a pretty picture of a slough south of Carrington for sale. (I actually do.) I can’t pick and choose who buys it, and I shouldn’t. I put it out there for everyone. On the other hand, if someone wants a personal service, like a wedding, I should be able to refuse. For example, a particular bride might be miserable to work with. It may be in a location I don’t care to work in. There are a lot of reasons, and all are reasons why I should be allowed to say no.

    It is the personal service element that makes the difference in my mind. I suspect a case like this will eventually have to go all the way to the Supreme Court to get it settled. I’ll admit that I’m not totally certain what would happen there, and perhaps even a bit frightened.

    • Drain52

      Would you sell a picture you took of a cute little kid to a man you knew was a child molester? Or would you have second and third thoughts?

      • Waski_the_Squirrel

        Actually, I don’t sell pictures of any people except to those who commission them. We don’t need to reach as far as some kind of monster. The only pictures that I make available for general purchase are landscapes, flowers, buildings, and that kind of thing.

        But, since some of my pictures have been in a few newspapers, I’m sure monsters have seen them. Maybe a monster even cut one out.

        I suppose if we dig long enough there will be something that would make me uncomfortable, but I think you’re splitting hairs. You also made an assumption (which I’m glad for) that I’m not some kind of monster myself. To me, the personal service versus public service distinction is a good dividing line. Any rule can be probed deeply enough to find problems. That’s why we are all people, not machines. We can make decisions in the gray areas.

        • Drain52

          I was posing a hypothetical, not knowing if you did portraits. The point is that you (the generic “you”) might not sell certain pictures to certain people whose behavior you strongly disapprove of, and I think the bakers did the same thing.

          I’m tending toward a libertarian view on who businesses choose to sell to more than I used to. When aberrant behavior was seen as aberrant behavior and treated accordingly the common civil rights position on all races being served seemed right. But when bizarre things pass as normal nowadays, I find it increasingly understandable that people, including businesses, will revolt.

  • JoeMN

    ustice Bosson wrote that this case “provokes reflection on what this
    nation is all about, its promise of fairness, liberty, equality of
    opportunity, and justice”,

    Where is the “fairness” the liberty, the equality of opportunity or the justice for those such as Elane Photography, who are henceforth forced into indentured servitude in New Mexico ?
    It would seem the concept of freedom includes tolerating the freedoms of others as well.

    • yy4u2

      One would think a judge of all people would know the meaning of hypocrisy. Unless one wants to rule from the judiciary.

  • Drain52

    “Maybe this ruling is more about mandatory affirmation of the same-sex agenda than about meting out justice…” Exactly so and well put. This is why those who see no problem with a grotesque practice like gay marriage always fail to understand why they end up in government-enforced quicksand.