Acton Institute Powerblog

New Mexico Supreme Court: ‘All Of Us Must Compromise’

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The New Mexico Supreme Court, in a ruling regarding a Christian photographer who declined to photograph the commitment ceremony of a same-sex couple, stated that this violated the state’s Human Rights Act.

In 2006, Elane Huguenin, a professional photographer, was asked to photograph the ceremony of a lesbian couple. Huguenin declined, citing her religious beliefs, and subsequently had a complaint filed against her with the New Mexico Human Rights Commission. She was found guilty of discrimination and fined. Justice Richard Bosson, in the court’s unanimous decision wrote:

The Huguenins today can no more turn away customers on the basis of their sexual orientation – photographing a same-sex marriage ceremony – than they could refuse to photograph African-Americans or Muslims…

At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others,” he wrote.

He said the Constitution protects the rights of the Christian photographers to pray to the God of their choice and following religious teachings, but offered a sobering warning.

“But there is a price, one that we all have to pay somewhere in our civic life,” the justice wrote. “The Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people.”

At National Review Online, Kathryn Jean Lopez echoes Mark R. Levin in that our nation is now entering a state of “soft tyranny.” Lopez says this about the New Mexico court ruling:

The court ruled that it is “the price of citizenship” that, although you can believe whatever you want, you can’t act as if you take certain beliefs all that seriously. It would seem the position of the New Mexico Supreme Court is that believing men and women are expressly made for the institution of marriage, for one another — that their very biology suggests as much, naturally ordered toward the creative gifts that are children — is somewhat akin to believing in unicorn gods who will come to set us free. That is: utterly absurd. Believe it in private if you wish; but don’t ever try to operate in the world outside your active imagination or your codependent church with your crazy beliefs in mind.

And this, she says, is how we find ourselves in the state of “soft tyranny.” Lopez goes on to discuss Levin’s new book, The Liberty Amendments, in which, she says, he indicts today’s America. Quoting Levin:

Social engineering and central planning are imposed without end, since the governing masterminds, drunk with their own conceit and pomposity, have wild imaginations and infinite ideas for reshaping society and molding man’s nature in search of the ever-elusive utopian paradise. Their clumsy experiments and infantile pursuits are not measured against any rational standard. Their preciousness and sanctimony are justification enough.”

What we see, Lopez states, is a civil society that is “waning and threatened.” Religious beliefs are to be privatized, because acting on one’s beliefs leads to punitive action, as the New Mexico ruling shows. Those with certain religious convictions become marginalized citizens, in the quest for a liberty that seems increasingly bent on infringing upon denying religious liberty beyond the scope of worship. That is, the legal atmosphere in the U.S. is consistently pushing for “freedom to worship” but not religious liberty. What is the difference?

It is about whether we can make our contribution to the common good of all Americans. Can we do the good works our faith calls us to do, without having to compromise that very same faith? Without religious liberty properly understood, all Americans suffer, deprived of the essential contribution in education, health care, feeding the hungry, civil rights, and social services that religious Americans make every day, both here at home and overseas.

What is at stake is whether America will continue to have a free, creative, and robust civil society—or whether the state alone will determine who gets to contribute to the common good, and how they get to do it. Religious believers are part of American civil society, which includes neighbors helping each other, community associations, fraternal service clubs, sports leagues, and youth groups. All these Americans make their contribution to our common life, and they do not need the permission of the government to do so. Restrictions on religious liberty are an attack on civil society and the American genius for voluntary associations.

Instead, we are at a place where those with religious convictions are told to “compromise” and “accommodate.” Is this the vision of justice we are willing to settle for?

Elise Hilton Communications Specialist at Acton Institute. M.A. in World Religions.


  • Thank you for your essay—a very helpful summary.

    Two thoughts come to mind.

    First, while I agree with the Catholic bishops that the moral and policy
    question is whether or not religious believers “can make our contribution
    to the common good of all Americans.” But at least among many social
    progressives, the answer to this is a resounding “No!” religious
    believers have nothing to contribute and that “will continue to have a
    free, creative, and robust civil society” only when the State, and the
    State alone determines “who gets to contribute to the common good, and how they get to do it.”

    In response to homosexual rights advocates all I can say is beware. In
    asserting today the right to re-define marriage in a manner that contradicts the biological facts, the State claims as well the right to re-define homosexuality. Once we accept that marriage is a mere social construct subject to bureaucratic definition we surrender to the state the power to define all relationships according to the current political fashion.

    Far from advancing the civil rights of homosexuals, the re-definition of
    marriage undermines the very foundation of those rights along with the rights of everyone else.

    Second, I see where in the NM case the Christian photographer must compromise—but what compromise is the couple required making? In asking this I’m not trying to be funny (ok, maybe a little) but raising a serious point.

    Homosexual rights activists need to consider the implications of the moral (and political) asymmetry that they so enthusiastically embrace in pursuit of the ephemeral goal of forcing a photographer to record their commitment ceremony. The absence of reciprocal compromises suggests that while the photographer is a moral actor in this drama (i.e., an adult) the lesbian couple is not.

    Put another way, the couple are seen as children who are exempt from the same moral expectations the court has for the photographer. Whatever the short term gains, I don’t see how it is in the couples’ best long term interest to accept such a marginalized status. Granted we all make bad long term decisions in pursuit of short term gain. But seeking to embody in law a preference for “today” at the expense of “tomorrow” is bad not only for society but also for homosexuals.

    Again, thank you!

  • Correction: Justice Cháves wrote the court’s decision, not Justice Bosson. Bosson’s opinion, quoted in the article, was a concurrence that no other justice joined.

    • Elise Hilton

      Thank you, David.

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  • I simply do not understand the controversy. Reading Loving, the same discrimination was employed against blacks and American Indians from being able to marry white people. Right down to the same type of religious language used to try and disguise the discrimination against gays based upon the flimsiest of religious dogma; not a word about lesbians…

    This just means that Christians and others who use their religion to advance bigotry and inculcate it to children must now stop discrimination against gays like they had to do several times in our US history already.

    There’s no existing right to carry out discrimination against a class of people for religious reasons based on Invisible Pink Unicorns (PBUT) (they exist by the way), and invisible skydaddy’s who hand out land deeds; which of course does not exist.

    So Christians are losing nothing. They just have to not discriminate anymore.

    • I don’t think Loving v. Virginia means what you seem to think it means for same-sex marriage. The case didn’t re-define marriage. Rather it overruled an unjust law that sought to conform marriage to the opinions of a social elite—specifically white racists. While
      objectively immoral, the laws that forbid marriage between blacks and white were nevertheless based on an acceptance of marriage as a lifelong union between a man and woman for the procreation of children. Indeed that was precisely the fear—that the races would be “mixed.”

      Proponents of SSM however would reject the traditional
      definition of marriage and impose on society a new definition based on their own desires. In part they argue that such a re-definition is necessary because that laws based on the traditional definition of marriage are unjust because they
      exclude homosexuals.

      While an individual homosexual may or may not wish to marry, it is simply untrue to say that homosexuals cannot marry. Unlike the situation Loving v. Virginia corrected, nowhere in America are there laws preventing a homosexual from marrying any woman (straight, bi-sexual or lesbian) who would freely consent to do so.
      Likewise, any lesbian is free to marry any man (again, gay, straight or bi) who would wish to marry her. As far as I know the civil laws governing marriage are silent about the sexual orientation
      or practices of any man and woman who wish to marry.

      As I said above, it may very well be that there are no homosexuals who wish to marry, that is who want to enter into a lifelong relationship with a person of the opposite sex. But this is altogether a different matter. Unlike the laws that ban the marriage of a man and a woman on racial grounds a homosexual decision to marry or not is a personal decision and one which the law would certainly allow.

      Again though, as a matter of law, no one is preventing a homosexual man or woman from marrying a member of
      the opposite sex.

      The fact that someone misuses the Gospel doesn’t have
      any bearing on the validity of the Christian tradition and the fact that racists and proponents of traditional marriage use the same language is neither surprising nor germane. Offensive and fatally misguided though they were, American racists adopted the cultural language available to them. This language was by and large formed by Gospel. But so what? Hitler twisted the cultural tools available to him to advance his own hateful agenda. Do you imagine that
      somehow because Hitler spoke German and referenced German culture that all of Germans are responsible for the Holocaust?

      Finally, it is simply wrong to assert that in this argument Christians have nothing to lose. There is nothing inherently unjust in treating different relationships differently.

      • Please. Intellectual dishonesty is not an argument. This is no redefinition of marriage beyond EXACTLY what is in Loving.

        Really… “Hitler”? Are you serious. This is very simple. Christians cannot show any harm from same sex marriage or treating people equally without discrimination.

        Indeed, people who profess to be Christian who let God be the judge, I believe are more Christ like. Any other arguments are just window dressing.

        • Michael,

          There is no dishonest in my argument intellectual or otherwise. Loving doesn’t redefine marriage but overturns laws that set unjust conditions for contracting marriage. While the Court’s opinion refers to marriage as “one of the basic civil rights of man” there is nothing to suggest that the Court envisioned extending such right to a same-sex couple. So either you haven’t read the decision or you are engaging in wishful thinking.

          This aside, you still haven’t dealt with the fact that the only thing preventing a gay man from marrying any woman who would consent to do are personal. Unlike the fact that lead to the Loving decision there are no law based on sexual orientation that prevents a marriage between an adult man and an adult woman.

          As for letting God judge, I certainly but we are discussing moral status of an individual before God but public policy. The inability to separate these two things intellectually makes conversation on the matter difficult. Since however you raise the question of judging, I would point out that you have equated Christian opposition to SSM with racism and implied that such opposition is based on a malice toward homosexuals.

          So what conversation do you want to have? The Christian tradition’s understanding of morality of homosexual behavior? A conversation about public policy? The status of the individual homosexual before God? Or what it means for me as a Christian to love my homosexual neighbor?

          I suspect is the last of these that is your concern. If so I can assure you I bear no malice toward anyone because they are homosexual. If so, fair enough but I don’t think this is the venue for that conversation since here we are discussing public policy.

          • Prior to 1967, as an American Indian it was impossible for me in some states to marry a white woman.

            According to your logic, that should be just fine with you because I could certainly marry, just not a white woman and I am quite sure you would have then advocated that I should be happy ‘marrying my own kind’…

            You are basically trying to argue an old argument, and an added bonus covert argument that gay people are simply making a choice.

            People do not wake up in the morning and say to themselves “I think I’ll be gay today.”

            It’s not a choice like religion is a choice; or discrimination is a choice.

            Christians are giving up no right. They simply have to give up discrimination. Those that don’t will continue to follow the path of those who refuse to abide by Loving.

            And sadly there are still some bigots out there.

          • Michael,

            Forgive me I must not have been clear so I’ll say again, the laws that forbid inter-racial marriage were objective immorally–there is simply no excuse for such laws.

            The point that you seem not to understand is that these laws were unjust precisely because, as the Court said, a man and a woman who are otherwise free to marry have a right to do so.

            Whether being homosexual is a choice or not is an important question but to which there is no clear and unequivocal answer. What is a choice are the actions people take in response to their desires. Or do you imagine that homosexuals are incapable of NOT acting of their desires?

            And again, my fundamental point remains. There is no law forbids a man and a woman from marrying on the basis of their sexual orientation. That fact that a gay man doesn’t marry is then not a matter of law but personal choice. His sexual orientation may, or may not, be a choice but his decision not to marry certainly is a choice.

            As for what a re-defined notion of marriage means for religious liberty, neither you nor I know what the unintended consequences might be. What we do not is that, in NM at least, a Christian was penalized for not wishing to engage in business contrary to his conscience. The lesbian couple suffered no harm besides annoyance or maybe embarrassment. But even assuming that they were embarrassed, there was no financial or material harm that justifies a fine.

            People are sometimes unkind to me because I am a priest. I have been passively denied service in restaurants, had people get up and move across the room when I sat down next to them, been spit on and
            threatened by a number of people for a range of issues that had nothing to do with me personally.

            And I haven’t sued anybody, I just walk away.

            Imagine if you will, someone walking into a deli and when his request for a ham sandwich is denied because the establishment keeps kosher he sues for religious discrimination. The women in NM didn’t walk away. Instead the brought a suit to punish
            someone for not affirming their relationship. In effect, the sued a kosher deli for not making a ham sandwich. You are defending behavior that is petty and bigoted.

            But bad manners is a social matter not one of public policy. So ore important than bad manners is the Court’s assertion in the NM case that, in a civil society, we must all compromise. Fair enough. What will homosexuals give up in order to obtain a change in the law to allow SSM? You’re very quick to tell those who disagree with you what we must do for you. What will you do for those of us who disagree with you?

          • You’re more than clear. You are using (plagiarizing) the material from the Family Research Council trying to make a deli ham argument as a basis, or excuse, for bias against a class of people that you feel should be discriminated against based solely upon religious reasons in a public business.

            This suit has nothing to do with forcing churches to marry gays. It does however have to do with a public business turning away gay folks because of a stated religious reason and this behavior is wrong under the New Mexico Human Rights Act.

            FRC is listed as a hate group. Their extremist views on a variety of fronts have long been known to be extremist and vile to many Americans.

            Discrimination based upon religion is simply wrong. It’s ironic that so many people would like to adopt Taliban style tactics here in the US just because they hate gay people so much.

            That’s neither Christlike nor American.

          • Michael,

            No one is suggesting that the NM case is about forcing churches to perform same-sex weddings. And while I appreciate your willingness to defend
            what you see as the civil liberties and human rights of homosexuals, you seem disinclined–hostile really–to any suggestion that those with
            whom you disagree have our own, legitimate concerns.

            You still haven’t addressed my initial argument that the marriage laws in America are not discriminatory. Whatever their respective sexual orientations a man and a woman who are otherwise free to do can marry. The fact is homosexuals do not want to enter into a life-long commitment with a person of the other sex. This isn’t discrimination but a personal decision.

            What homosexual activists to do is co-opt the civil laws of marriage and reshape them in a manner that is compatible with their own sexual desires. To quote what you say above this is “neither Christlike nor American.” And as you have ably demonstrated here to object to this, or even point this out, means being insulted by SSM advocates.

            Whether you like it or not to defend the traditional understanding of marriage and do so publicly is my right as an American even as it is your right to disagree with me. And we both have the right to shape the laws according to your own vision of a civil society and to shape our lives according to our own convictions.

            More importantly, however, it is my obligation as a Christian and as a priest to defend the traditional understanding of marriage. This obligation is never so important as it is now when the definition of marriage is under attack. That you find this somehow contrary to the example of Christ is of no importance to me especially since you have already shown your contempt for Christians with you references to “Invisible Pink Unicorns” and “invisible skydaddy.”

            You seem remarkably comfortable judging the hearts and intentions of those with whom you disagree. You have asserted, emoted really, that I am akin to a racist, that I hate homosexuals, that I have adopted “Taliban style tactics,” and (most recently) that I am a plagiarist. All of this you do rather than engage my arguments.

            As near as I can tell you support the NM Court’s decision because it concurs with your own position. And that’s fine but you still haven’t offered any argument that opposition to SSM is discriminatory. It is the absence of such reasons that makes your position unreasonable.

            Shouting and protesting that the other side is wicked and evil isn’t an argument they are the tactics of a schoolyard bully who is mad that someone had the audacity to disagree with him.

            I would remind you, you started this thread. No one sought you out, it is you who chose to be here and it is you who decided to be insulting rather than to discuss our differences in a civil manner.

          • I fear that there is no further basis for debate with you Gregory because you wish to keep talking past the issue.

            You seem to believe that being gay is a choice like choosing a religion. It’s not a choice. But since you wrongly believe it is a choice this informs the rest of your views building a completely untrue picture of reality.

            It’s actually sad, and I feel sorry for you and those you minister to because there is no way you would be able to properly minister to anyone who is gay by telling them to “buck up and deny your true self”.

            Even “Exodus” closed their doors and no longer will participate in the vile attempt to “cure” gays of being themselves.

            Loving v. Virginia is quite instructive here. It is contrary to the 14th Amendment to discriminate against American Indians and black folks from marrying white folks based upon extremist religious views.

            The New Mexico Human Rights Act is also instructive. It is unlawful for a public establishment to discriminate against gay people.

            That’s really all there is to it. Apparently there are a few holdouts who still want to discriminate against gays based on extremist religious beliefs and they are consistently losing in the courts.

          • JohnE

            I think there’s much more than just a few holdouts (not that that was much of an argument to begin with) and it’s not discrimination based solely on “extremist” religious beliefs either, but common sense. Not every discrimination is unjust discrimination. Different things SHOULD be treated differently.

            If the public purpose of marriage is now going to be to recognize the love of two people who have some sort of sexual relationship and want legal rights to social security and hospital visitation, and if that’s what the majority want, then so be it. It’s a sad change from the traditional understanding that put having a mother and father for a child as the priority. And unfortunately it’s usually not by majority but by judicial fiat.

            And it has to be by judicial fiat, because the argument for gay marriage is mostly based on emotion. Thus most arguments for gay marriage will use discrimination as a scare word, and try to paint those who dissent from their viewpoint as haters, extremists, vile, bigots, Taliban, religious (which is supposed to mean unreasonable in their eyes), and point out who is for or against them or us or what the poll results say, and on and on, all the while avoiding any substantial arguments for why gay marriage or gay sex is a good thing.

            People are free to cling to unreasonable arguments, but that doesn’t mean they should have a right to coerce others into acting against their beliefs, despite what any judge might say to the contrary.

          • Did you mean to offer your argument either pro or con for gay marriage?

            You have made no coherent argument so far.

          • Michael,

            You are simply wrong when you say I am claiming that homosexuality is a choice like choosing a religion is a choice. This simply isn’t what I said. But to maybe bring the emotional content of the conversation down a bit let’s look at what the American Psychological Association says on the matter.

            In their statement on sexual orientation the APA says that the “while there is no consensus among scientists about exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation” subjectively “most people experience little or no sense of choice about their sexual orientation.” At the same time they also say “we can choose whether to act on our feelings.” This is the moral key to my argument. Homosexuals choose not to enter into marriage as it has been traditionally understood. It is not civil law that prevents them from marrying but their own decision. Whether that decision is prudent or not, whether they are free to act otherwise or not is a different question and one that admits to no single answer.

            But to argue that the institution of marriage as traditionally understood and enshrined in civil law is based on an injustice is what we disagree about. Unlike in Loving v Virginia where the State imposed an unjust restriction on marriage based on race, the State does impose such a restriction on (or indeed even ask about) the sexual orientation or practices of the couple.

            Again, any man and any woman who are of age, not closely related by blood, or already married to other people are free to marry regardless of their sexual orientation. Your referencing Loving is a non sequitur.

            Your argument seems to raises or falls on the validity of your assertion that the ONLY reason one can oppose re-defining marriage to include same-sex couples is irrational prejudice. Whether that prejudice is religious or not is of no consequence. Certainly there are some who fall into that category but then there are homosexuals (and homosexual rights advocates ) who are irrational anti-Christian bigots.

            But what if opposition to SSM is not based on an irrational prejudice (religious or otherwise)? What if there are sound reasons to maintain in law the traditional understanding of marriage? What if we the laws of marriage reflect not an irrational bias against homosexuals but the sober acknowledgement that we are as a society concerned not with the feelings of adults but the needs of children? What if marriage laws aren’t about a husband and a wife but about a father and a mother? In that case your argument fails since the rational for opposing SSM is not irrational prejudice but a prudential concern for children.

            As for the NM case, I would simply repeat what I said before. The couple suffered no harm beyond getting their feelings hurt. Moreover, and contrary to the Court’s rationale, the only one who had to compromise in the matter was the photographer. The couple had a photographer for their commitment ceremony and the photographer was fined for hurting their feelings. Had the photographer simply claimed to be unavailable for the event the couple would have done exactly what they did–find another photographer. The Court penalized the photographer not for conduct but speech, not behavior but thought. Is this the world you want to live in?

            Yes I do understand why homosexuals want to re-define marriage so that they are included. They want the economic and legal benefits that marriage bring. More importantly, they are seeking the social affirmation that comes with marriage. While these are understandably goals it isn’t clear why these goal justify re-defining marriage.

            This isn’t an irrational prejudice on my part but reflects that that we don’t know the social consequences of changing marriage laws. It isn’t even clear that legalizing SSM would be in the long term best interest for homosexuals or that all homosexuals support such changes.

            But as you said, we have no ground for a debate. Fair enough and while I’m sorry that you think I keep “talking past the issue” that’s your view of things. You haven’t responded to any of my arguments beyond saying I’m wrong and when that doesn’t work resorting to personal insults and judgments on my pastoral abilities based on nothing more than the fact that you disagree with me.

            So while I’m sorry you don’t think we can have a discussion the responsibility for this is yours not mine.

    • I forgot to add this–if I walk into a Chinese restaurant and they refuse to sell me a pizza that’s not discrimination. Even if they refuse to sell me a pizza because I’m a priest or a man or have red hair, it still isn’t discrimination. Yes, they might hate me for being a priest (or a man or having red hair) and while that’s a sin, the fact is I asked the restaurant owner to provide a service that he doesn’t provide. He won’t sell me a pizza because he doesn’t make pizza and this is true even if he hates.

      To be direct, not allowing a same-sex couple marry is no more evidence of discrimination than is the Chinese restaurant refusal to sell me a pizza. Whatever the same-sex couple is looking for, it isn’t marriage. So what are homosexuals looking for in their quest to redefine marriage?

      That said, I do think that some Christians have treated some homosexual unjustly. It is even possible, and in fact in some case likely, that opponents of SSM hate homosexuals. But then some homosexual have treated some Christians unjustly. If opposing SSM is taken to be evidence of a bias, or even hatred, of homosexuals because some the failings of some Christians, well, than I guess advocating for SSM is evidence of a bias and even a hatred of Christians because of the failings of some homosexual. Is this the world you want to live in? I don’t.

      Or maybe, we’re all just trying to order pizza from a Chinese restaurant.

    • Kenneth James Abbott

      To begin with, Michael, you need to quit playing the race-card and come up with a real argument.

      Tht is, if you can.

      • Perhaps Ken you should refer to almost every single one of the pertinent court rulings that clearly reference Loving…

        Perhaps Ken you should actually read Loving. Read the language the original judge used. It is nearly identical to the language that religious extremists use today against gay marriage.

        So Ken, let’s hear your argument. Are you in favor of continued discrimination against gays based upon extremist religious views?

        • Michael,

          Yes, the judge whose decision is overturned in Loving v Virgina is references God as part of his decision upholding the racist laws prohibiting a man and a woman from marrying. And yes one argument advanced by Christians (as well as Jews and Muslims) against SSM is that such unions violate Divine Will. However this is not the only argument made against the proposed law and I’ve made several such arguments here all of which have gone unanswered.

          The reason the marriage laws of the commonwealth of Virgina were overturned was not because they reflected a particular (and odious) theological position. The Court’s opinion doesn’t touch on the question of the religious or theological justification of the laws.

          Rather the Court found that there was no “any rational basis for a State to treat interracial marriages differently from other marriages.” Moreover they found that “The fact that Virginia prohibits only interracial marriages involving
          white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.”

          The legal (and moral) question before the Nation is whether or not the traditional definition of marriage (in the language of Loving) “constitute an arbitrary and invidious discrimination.”

          Advocates for SSM have argued that marriage is a simply a social convention and as such it is within the authority of the State to change the definition and to impose penalties on those who act on their disagreement with the new definition. But if marriage is a social convention unrelated to biology and simply a matter of person choice the same can be said of homosexuality. Either biology matters or it doesn’t.

          If today the State can ignore the biological basis of marriage then certainly the State is free tomorrow to redefine homosexuality. Evidently for SSM advocates homosexuality is really real but marriage is whatever we want it to be.

  • justbreathless

    Compromise to a Democrat Always means doing what they want..
    So How did both sides Compromise — ?
    That is what the court said Both had to do —

    • There is no compromise on human rights. Christians simply are no longer allowed to discriminate based upon their interpretation of their religion.

      There is no controversy. This is not a political thing except to the extent that Tea Party Republicans, who have ruined the Republican Party for at least the next generation, now try and make discrimination a right for a certain flavor of Christian who is not disposed to give up bias and bigotry against gay people.

      The vast majority of Christians are long ago rethinking in favor of being more Christlike and accepting of others.

      Some folks, many with an extreme right wing bent, are not that accepting, indeed, it would be doubtful if they would even recognize Christ.

    • Kenneth James Abbott

      It’s time for some non-compliance. Surely there’s a state that the Huguenins can move to that still has a First Amendment.

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  • Steve on Mare Island

    Being able to discriminate is itself a fundamental human right. This is called the right of free association. It stems from each person’s ownership of himself. All anti-discrimination laws are inherently unjust because they force people to associate with people that they do not want to associate with. It doesn’t matter if the reason is religious, or bigoted, or sensible, morally good or evil. Ms. Huguenin’s religious freedom has not been violated here, but rather her right to manage her own private property (in this case, her business) as she see fit.
    There is no analogy between laws against miscegenation and the SSM dispute. The former sought to prevent associations that are within any person’s basic human rights. In contrast, there are no laws that are actually against same-sex marriage. People are not sent to prison for asserting they are “married” to their same-sex sexual partners. Nor are they prevented from entering into agreements to share and dispose of their property and estates according to their own wills. (To the extent that some courts might try, or have succeeded in the past, in preventing same sex couples from doing this, that is prima facie unjust, since the property is theirs and no one else has incidence of ownership in it.) The SSM dispute is about expanding the state’s power to define what marriage is, which is something the state has no right to involve itself in in the first place. The way to oppose the proponents of SSM is to act to take away from the state this power that it has usurped. It’s of no consequence to me whether some homosexuals will find a compliant religious minister or some other sort of self-proclaimed authority to declare them “married.” I don’t have to acknowledge this any more than I have to acknowledge divorced and remarried Catholics as being actually married.
    The history of miscegenation laws shows clearly that this was the State’s nose in the tent in terms of usurping the power to define marriage (I’m speaking here only of the US experience, not Europe), and in that sense only, it is a worthwhile historical fact to keep in mind.
    It will be objected that there are all sorts of provisions in the law that “benefit” married people, such as requirements that certain kinds of employment benefits should be offered to married employees and their spouses, and that same-sex partners should have the same “rights” to these benefits. My answer is that none of these “rights” are in fact rights, that none of these provisions should exist in the law, because they interfere with the employer’s and the employee’s rights to negotiate a contract that is agreeable to them both. There is nothing wrong with an employer offering such benefits, but neither should there be any requirement he offer them to any and all. If he discriminates unwisely, and fails to hire people who would be valuable, he will bear the cost of his mistakes.
    The entire discussion we have witnessed between Michael Hess and Fr. Jensen is entirely beside the point and irrelevant to the folly of the court’s decision.