In New Mexico, a Christian business, Elane Photography is being persecuted for refusing to do business with a same-sex couple, declining to take pictures of their so-called, state-backed “wedding.” Why did a homosexual pair want to use a Christian photographer in the first place? It looks like a transparent attempt to set a precedent and instill the fear of Satan in the hearts of Christian businesses. The New Mexico Human Rights [sic] Commission is being used as the thought police.
Elane Photography has appealed to the New Mexico Supreme Court and the Cato Institute has filed an amicus brief defending the business. They report this on their blog under the title, “We Support Gay Marriage But Oppose Forcing People to Support It.” This sounds half right, but their defense is based exclusively on free speech:
“Our brief explains that photography is an art form protected by the First Amendment because clients seek out the photographer’s method of staging, posing, lighting, and editing. Photography is thus a form of expression subject to the First Amendment’s protection, unlike many other wedding-related businesses (e.g., caterers, hotels, limousine drivers). The U.S. Supreme Court has already ruled in Wooly v. Maynard that photography is protected speech—even if it’s not political and even if the photos are used for commercial value—and that speech compulsions (forcing people to speak) are just as unconstitutional as speech restrictions. The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all.” Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other photographers in the same area.”
So I want to know, is CATO really in favor of forcing caterers, hotels, and limousine drivers to service events that they believe are immoral. I get special exemption as a photographer from “human-rights” fascism, but if I rent my basement to married couples and only married couples (since I don’t condone fornication) then I must rent to husbands-and-husbands or “wives-and-wives” against my will, against my moral values, and against the commands of my religion? Should caterers be left unprotected from the attacks of the New Mexico Human Rights Commission while photographers escape from trouble?
So is this a legal strategy that CATO is forced to use? Are they required to elevate the right to free speech as a special case above and separate from the right to choose and the right to associate because is there no longer any legal basis for arguing for real liberty before the courts in the United States? If so, I wish they would give some hint that they were forced into this position by the insanity of the current American legal regime. As far as I can tell, they find this reasoning perfectly acceptable. Communication gets exempted from the forced “Human Rights” conformity demanded by the state, but all other actors in the marketplace must stuff their consciences in the closet in order to be permitted to make a living.
Finally, to ask the obvious question, how is “homosexual marriage” something that Libertarians support? All marriage discriminates against single people. The correct Libertarian solution would be to ask that all special recognition of couples as married be ended. I wouldn’t agree at all with this position, but at least I could understand it as “Libertarian.” Instead, it seems that Libertarianism is simply whatever post-modern cool people want it to be—just Obama’s pan-sexual left with just a smidge less coercion.
I appreciate less coercion, but that doesn’t make Libertarianism right or adequate for social ethics.