I'm No Lawyer, But...Thursday, June 7, 2012
A New Mexico state appeals court held that a photography firm’s refusal to provide its services to photograph a same-sex commitment ceremony violates the New Mexico Human Rights Act’s prohibition on discrimination in public accommodations on the basis of sexual orientation.
While the court agreed with the following:
Elane Photography’s owners are Christians who believe that marriage is a sacred union of one man and one woman. They also believe that photography is an artistically expressive form of communication and photographing a same-sex commitment ceremony would disobey God and the teachings of the Bible by communicating a message contrary to their religious and personal beliefs.
It rejected the argument, holding that:
the mere fact that a business provides a good or service with a recognized expressive element does not allow the business to engage in discriminatory practices. … While Elane Photography does exercise some degree of control over the photographs it is hired to take … this control does not transform the photographs into a message from Elane Photography.
The court also rejected Elane Photography’s claim that applying the Human Rights Act to it would violate its free exercise of religion protected by the U.S. and New Mexico constitutions. Attorneys plan to appeal the court's ruling.
Okay, enough legalese.
And let me say that I’m no lawyer.
So what I am about to say may show great legal naivete, ignorance and gross incompetence.
But this ruling, to me, smells.
And is frightening.
Suffice it to say that I am 100 percent against discrimination based on age, race or gender. However, I do not put same-sex marriage into that mix. Age, race and gender are not lifestyle choices. Choosing to enter a same-sex marriage is.
If I am a photographer, I would consider myself to be several things: self-employed business person, an artist, someone who participates in facilitating events and poses in order to preserve and honor their memory, and above all, a moral being who answers to God for my life and vocation.
It seems to me that this particular photographer did not choose to invest their artistic gifts in this event, much less facilitate honoring its memory, in light of their moral conscience. There was no effort to try and prevent this couple from having their ceremony. There was no hate.
Similar to how I, as a Christian pastor, would have politely declined to be the person who officiated.
But think of this ruling – where do we draw the line at “discrimination”?
What if they had been asked to photograph a legal sexual act between two unmarried, consenting adult heterosexuals. Can they not say, “I will not photograph that. As a Christian, it offends my conscience to witness it.”
Should they be sued for discrimination?
What if a Muslim photography studio refused to capture the burning of a Koran, which is legal in our country.
Should they be sued for discrimination?
And then think of the broader issues related to personal faith or conscience, such as the cases dealing with outlawing therapy for same-sex attraction, suing privately-owned bed-and-breakfasts for refusing to serve same-sex clientele in their home, or pharmacists not wanting to disseminate the “morning-after” pill.
Less in the headlines, I was told of one OB/GYN who refused to artificially inseminate a lesbian who was in a lesbian relationship. The doctor was sued, and the physician no longer practices medicine.
To my thinking, which again might be legally flawed in terms of language and precision (and to some of you, flawed on even larger grounds!), I would argue the following:
1. We all discriminate in countless ways, from who we refuse to date to what we refuse to wear. So discrimination, in and of itself, is not the issue. The key issue is what is deemed “legally prohibited” discrimination.
2. Discrimination based on age, race, religion or gender should be deplored and those discriminated against should be protected under the law.
3. Discrimination on the basis of sexual orientation should also be deplored, but as it is a lifestyle choice (much as religion is a choice), it is of a different nature and kind than, say, the color of someone’s skin.
4. No one should be forced to do anything to support, participate, honor, or facilitate a lifestyle choice that is morally repugnant or religiously offensive in the name of non-discrimination. So just as a photographer would not be forced to serve a same-sex wedding, neither would a minister.
5. Though much that goes under the banner of “anti-discrimination” does, in effect, promote homosexuality and create a specially-protected class (which I do not affirm), Christians should work toward a society that does not persecute practicing homosexuals, and Christians should denounce anyone who uses hate-filled speech. Christians should not work for homosexuality to be criminalized, and should vigorously support the full prosecution of crimes against homosexuals.
I do not want to join with those who believe many in the gay community are purposefully seeking out such confrontations in order to bring such suits to the courts. I am, however, concerned that such suits seem intent on forcing various individuals to violate their conscience and affirm lifestyle choices which go against their moral and religious convictions.
And that would be discrimination against religion.
(*Remember, log on to www.churchandculture.org, where you can post your comments on this or any other blog).
James Emery White
Refusing to Provide Photography Services to Same-Sex Ceremony Violates State Anti-Discrimination Law; read online.
Photographer to appeal same-sex wedding decision; read online.
Christian counselors being 'closed down' says struck-off 'gay cure' psychotherapist; read online.
In 2011, Dr. White wrote a six-part blog on homosexuality and gay marriage that you can read, beginning with installment part 1.
James Emery White is the founding and senior pastor of Mecklenburg Community Church in Charlotte, N.C., and the ranked adjunctive professor of theology and culture at Gordon-Conwell Theological Seminary, which he also served as their fourth president. His newly released book is A Traveler's Guide to the Kingdom: Journeying through the Christian Life (InterVarsity Press). To enjoy a free subscription to the Church and Culture blog, log on to www.churchandculture.org, where you can post your comments on this blog, view past blogs in our archive and read the latest church and culture news from around the world. Follow Dr. White on Twitter @JamesEmeryWhite.