Acton Institute Powerblog

Supreme Court Delivers Setback to Free Speech and Religious Liberty

Share this article:
Join the Discussion:

article-photo-Elaine“This ruling is more in the spirit of Nero Caesar than in the spirit of Thomas Jefferson,” said Russell D. Moore. “This is damaging not only to the conscience rights of Christians, but to all citizens.”

Moore, the president of the Ethics & Religious Liberty Commission, was responding to the U.S. Supreme Court’s refusal to rule on a case involving Elane Photography and its owners Jonathan and Elaine Huguenin. According to the Alliance Defending Freedom (ADF), Elaine received an email in 2006 asking her to photograph a “commitment ceremony” between Vanessa Willock and her same-sex partner. Willock asked if Elaine would be “open to helping us celebrate our day . . . .” Elaine politely declined to use her artistic talents to express a celebratory message at odds with her deep convictions. (Elaine had previously declined requests from others for things such as nude maternity photos.)

Willock, a licensed attorney who has served in various paid “diversity” positions, filed a complaint with the New Mexico Human Rights Commission. After a one-day administrative trial in 2008, the commission ruled against the Huguenins and ordered them to pay $6,637.94 in attorneys’ fees. The case made its way through the state court system, with the New Mexico Supreme Court ultimately affirming the commission’s coercive decision. In an ominous concurring opinion, one justice wrote that the Huguenins “now are compelled by law to compromise the very religious beliefs that inspire their lives,” adding “it is the price of citizenship.”

ADF attorneys representing the Huguenins are presenting only one claim to the U.S. Supreme Court—that the punishment of Elane Photography violates the constitutionally protected freedom “not to speak,” known as the compelled speech doctrine.

The government must not be empowered to either censor peaceful speech or force citizens into speaking against their will. The question presented to the Supreme Court reads as follows: “Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.”

The commitment ceremony of the two women was filled with expression: the liturgy, the sermon and prayers, the music, the vows, etc. Photography communicates stories and messages through its images. Wedding photography is part of the celebration of the ceremony. Vanessa Willock affirms this, having asked Elaine Huguenin to “celebrate” the event. Wedding photographers have to use the best lighting, choose the right angles, and pose the couple—including instructing them on how to kiss, where to caress, etc.—all for the purpose of communicating through art something of beauty about the momentous event.

Elaine politely declined because she cannot use her artistic expression to celebrate events and communicate ideas about marriage with which she disagrees.

While the New Mexico Supreme Court rejected the Huguenins’ religious free exercise and free speech arguments, the U.S. Supreme Court denied review in response to the couple’s free speech claim. Moore, the Southern Baptist Convention’s lead religious freedom advocate, expressed disappointment that the justices did not accept a case that asks “whether the state can pretend to be a god over the conscience.”

“No one is seeking to outlaw photographers from working at same-sex marriage or civil union ceremonies,” said Moore. “At issue is whether these persons will be forced by the coercive power of the state to participate in something they believe to be sinful.”

ADF attorneys point out that the central concern in the case—government punishment of Americans for declining to create or promote messages with which they disagree—is alive in other ADF cases moving forward around the country.

“Only unjust laws separate what people say from what they believe,” said Alliance Defending Freedom Senior Counsel Jordan Lorence. “The First Amendment protects our freedom to speak or not speak on any issue without fear of punishment. We had hoped the U.S. Supreme Court would use this case to affirm this basic constitutional principle; however, the court will likely have several more opportunities to do just that in other cases of ours that are working their way through the court system.”

Joe Carter Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).


  • Simple Man

    Been thinking we should start asking gay photographers to take pictures of pro-traditional family rallies…

  • Parableman

    This really is no surprise. This is a 1st Amdendment case, since RFRA doesn’t apply with state laws, and there’s no RFRA equivalent law within New Mexico. And the Supreme Court has already ruled, in an opinion written by Justice Scalia and joined by Justice Kennedy, that the 1st Amendment doesn’t give the protections this case was arguing that we have. You need an additional law to give that protection. It seemed clear that Scalia (and probably also Kennedy) thought the additional federal law did provide such protection in the Hobby Lobby case. But there was no reason to think they would go back on their view of what the 1st Amendment requires or that the four liberals would support this, given their resistance to the Hobby Lobby case when they so clearly thought a more fundamental right interfered (as I would expect them to think in this case as well). So there would have been at most three votes for reversing that decision (Roberts, Thomas, Alito), and it takes four justices to agree to hear a case. So this was never really in the running.

    • Chris Candide

      Actually, there IS a RFRA in NM. The state “human rights” commission and state courts got around it by saying that RFRA protections didn’t apply because the state didn’t bring the claim, but a private individual did. That is what Arizona’s SB 1062 was intended to remedy.

  • Parableman

    I should say that there was a slim chance they could have heard it if four justices thought they had a chance of getting the ruling overturned that said RFRA doesn’t apply to state law. But Scalia, Kennedy, Thomas, and Ginsburg were all involved in that decision, and only Breyer remains from the dissenters. Breyer tends not to overrule decisions he lost, since he favors precedent so much, but it’s possible a majority of justices could persuade him. But it would have taken Roberts, Alito, Sotomayor, and Kagan with Breyer to do that, and I’d be surprised if either Sotomayor or Kagan would have gone that way. And since the decision was based on Congress’s commerce clause (in a conservative line of argument), I’d be surprised if Roberts or Alito ended up wanting to overturn it and give more anti-federalist power to centralized government.

  • No one should be surprised when tepid “Christians” who support abortion and gay rights cede or join the discussion on the side of atheists !