By Brandon Bub
“Religious liberty” has become one of the most important shibboleths in discourse on controversial political topics. In June, for example, a federal court ruled that Hobby Lobby could not be fined for refusing to offer contraceptive coverage to its employees. That case, which has already made its way to the Supreme Court, is important not only because it argues that corporations can, legally speaking, be Christian (hey, if they can legally be people, it follows that Christ can save them too), but also because it’s reinvigorated one of the most important arguments against liberal legislation: freedom to exercise one’s religion.
One of the most interesting cases I’ve come across that relates to this issue is one that was recently decided by the New Mexico Supreme Court. Laws in that state forbid businesses from discriminating against homosexuals, a mandate that sounds straightforward enough. However, wedding photographer Elaine Huguenin found herself in hot water when she turned down a request from a gay couple to photograph their wedding. What started as a simple discrimination suit turned into an extended conversation about what exactly the First Amendment protects.
Huguenin’s case is interesting in that she does not rely on the “Free Exercise” clause of the First Amendment; instead, she makes the claim that the state forcing her to open her doors to LGBT couples coerces her into sending a message about gay marriage that she cannot in good conscience support. In essence, this is a case about “coerced speech.”
Of course Huguenin’s claim is not exactly a novel one. In the 1943 Supreme Court decision West Virginia v. Barnette, a group of Jehovah’s Witnesses successfully challenged a West Virginia law that compelled all schoolchildren to recite the Pledge of Allegiance at the beginning of each school day. The constitutional basis for Huguenin’s argument is at least 70 years old.
What’s interesting about this case in particular, however, is the ideological fissures it’s created. The ACLU, one of the strongest defenders of First Amendment liberties, actually came down on the side of Vanessa Willock and Misti Collinsworth, the couple bringing the discrimination suit against Huguenin. As Louise Melling, a lawyer for the ACLU explained, “the [14th Amendment] equal treatment of gay couples is more important than the free speech rights of commercial photographers.”
Indeed, this case highlights important tensions in constitutional conceptions of liberty. “Freedom” makes a great buzzword for Tea Party campaigns, but thinking of freedom in terms of a zero-sum game can often be unproductive. Granting gays and lesbians the freedom to marry by definition diminishes the freedom of a person to refuse that exact right. In other words, my freedom to do something infringes upon another person’s freedom to oppose my behavior. When our discourse becomes one about maximizing liberty in a utilitarian fashion, debates like this often become inevitable. How we choose to resolve these dilemmas gives a lot of insight into what definition of liberty we value most: the freedom from being told what to do, or the freedom to do what’s best, however we might define that greater good.