Arizona Governor Jan Brewer appeased much of the country when she decided to veto a much disputed bill in her state, which sought to "not substantially burden a person's exercise of religion" and strengthen religious freedom in the state. Liberals accused the bill of being anti-gay in that business owners could then refuse to serve homosexuals because their sexual orientation conflicted with certain religious ideals of the owners while conservatives accused liberal media of creating a red herring given that the bill had no mention of race or sexual orientation.
This discussion raises some serious constitutional and philosophical questions about liberty, society, expression, and the rule of law. Libertarians such as Senator Rand Paul (R-KY) and National Review's Charlie Cooke, believe the government should have no role in telling a business owner who they must provide services to. Their belief is not one of bigotry but rather one of free market principles. Cooke stated in a podcast recently that homosexual business owners should not be forced to allow say, groups like the Westboro Baptist Church - a vocal anti-gay organization - to hold a banquet at their restaurant just as anti-gay business owners should not be compelled by the government to serve homosexuals if they don't want to. The flip-side for Cooke is that denying serves to certain groups, such as homosexuals, may garner negative publicity and interest groups may lobby and boycott against such businesses. This was evident in Arizona as talks of potentially moving the Super Bowl from the state by the NFL were floated if the bill passed. Governor Brewer was under immense economic pressure from several large corporations that if she signed the controversial bill into law, these groups would punish the state by moving ventures elsewhere cost the state potentially millions.
On Friday, the Supreme Court will decide if it will hear arguments in Elane Photography v. Willock, a case out of New Mexico in which a photographer refused to provide services to a homosexual couple for their wedding. The New Mexico Supreme Court ruled that the defendants violated anti-discrimination laws by denying service to the homosexual couple because they disagreed with the couple's sexual orientation. The defendants "object as a matter of conscience to creating pictures or books that will tell stories or convey messages contrary to their deeply held religious beliefs."
At the root of this case is one's First Amendment right of expression. The defendants feel that their First Amendment rights of speech and expression are explicitly violated by compelling them to photograph and document the ceremony (photography being considered a form of art and expression.)
In an amicus brief filed by lawyer Eugene Volokh (founder and editor of The Volokh Conspiracy) in favor of Elane Photography, Volokh harps on the "individual frame of mind" and precedent set in Wooley v Maynard in 1976 regarding license plates in New Hampshire. In Wooley, the issue was if compelling one to display the state's license plate on their vehicle, which the plaintiff objected to given the state's motto ("Live Free or Die") on the license plate, violated their First Amendment right. The Court ruled that the state could not compel one to support the state motto on a license plate, which would "use their private property as a 'mobile billboard' for the State's ideological message."
Volokh contends, "This case [Elane Photography] does not, for instance, involve the concern that Elane
Huguenin is required to 'use [her] private property as a 'mobile billboard'
for a particular message… But compelled creation and compelled dissemination
are similar in that they both involve a person being required 'to foster...concepts' with which she disagrees, and 'to be an instrument for fostering public
adherence' to a view that she disapproves of."
Fundamentally, the issue comes down to the First Amendment and whether or not one's professional work is protected by it. Under Volokh's ideology, a freelance writer who writes press releases "must have the First Amendment right to choose which speech
he creates" and provides his service to. As Emily Bazelon of Slate writes, "Businesses that operate as public accommodations, meaning that they’re
open to all comers, have to abide by anti-discrimination laws. If you
want to refuse to have women or gay people as members, then you should
have to operate as a private club open only to your own members." Once a business enters into the Congressional jurisdiction of interstate commerce, they are subject to regulation.
Should a public Mormon affiliated organization be allowed to deny service to someone who say drinks alcohol or does drugs? This information may not be made explicitly public for certain services but certainly at an event such as a wedding where alcoholic beverages are being consumed, this seemingly private practice would be on full display. So, can such religious groups refuse service citing religious objection to alcohol or drug consumption? This could mean that such religious groups could subject individuals to answer certain questions before offering their services as to avoid serving those who participate in activities against their beliefs. While this is an extreme example, under the religious freedom ideology, it is not out of the realm of possibility.
When providing a service in the business sense, personal ideology should be just that, personal. Once one enters into commerce, they cannot pick and choose who to serve and who not to serve. As Richard Wolf of USA Today wrote of the ElanePhotography case, "The Huguenins' [defendants] lawyers and supporters don't contend that businesses such
as restaurants and hotels can refuse to serve gays and lesbians...Their argument is that professionals whose work is by nature expressive
— such as writers, advertisers and website designers — should not have to apply
their artistic talents to subjects on which they disagree." However, they are still providing a service to the public so why should they be treated differently under the law?
Ultimately, this larger debate comes down to a fundamental disregard for others. As in the upcoming oral arguments next week in two cases objecting to the Affordable Care Act's contraception mandate, remedies to religious objections may, in effect, interfere with others beliefs. In other words, those who object to the contraception mandate or those who object to providing services to certain groups on religious grounds are effectively projecting their views on to others. The debate of religious freedom is spirited, no pun intended, and upcoming arguments are sure to continue to fuel the fire. Religious freedom is important and should not be disregarded, but when it begins to affect others, it then becomes more than simply one's religious freedom and rather religious coercion.