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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