Con­ser­va­tive backs bias against own be­liefs

The Washington Times Weekly - - National - BY VALERIE RICHARD­SON

Alan Sears doesn’t know what it’s like to be re­fused ser­vice for be­ing gay, but he does know what it’s like to be re­fused ser­vice for be­ing a con­ser­va­tive.

Six months ago, a South­ern Cal­i­for­nia pho­tog­ra­pher turned him down flat when he asked her to take a Christ­mas card photo of his fam­ily, ex­plain­ing in an email, “I op­pose the goals and ob­jec­tives of your or­ga­ni­za­tion and have no in­ter­est in work­ing on its be­half.”

That was fine with Mr. Sears, CEO and gen­eral coun­sel of the con­ser­va­tive Al­liance De­fend­ing Free­dom, who is lead­ing the le­gal bat­tle on be­half of pho­tog­ra­phers, florists, cake dec­o­ra­tors and oth­ers sued for re­fus­ing to cre­ate prod­ucts for same­sex wed­dings.

What ap­plies to wed­ding cake de­sign­ers asked to vi­o­late their core be­liefs, Mr. Sears ar­gues, ap­plies equally to lib­er­als who de­cline to fill cer­tain or­ders to con­ser­va­tives cus­tomers.

“We’re talk­ing about hu­man dig­nity. It vi­o­lates some­one’s dig­nity to re­quire them to cre­ate im­ages that vi­o­late their core be­liefs,” said Mr. Sears. “I think I’m a pretty nice guy, and my fam­ily are kind folks, but to re­quire this woman to por­tray me in a lov­ing, fam­ily-cen­tered way that is con­trary to her views and her con­science, I think it would be an act of vi­o­lence against her dig­nity.”

Not long ago, his ar­gu­ment was widely dis­missed by civil rights ad­vo­cates as the iso­lated view of a sub­set of far-right Chris­tians, but that is chang­ing. A grow­ing num­ber of lib­er­tar­i­ans, sup­port­ers of same-sex mar­riage and even gays them­selves are lin­ing up with the Ari­zon­abased le­gal de­fense group as the is­sue moves to­ward the Supreme Court.

The ADF has asked the high court to re­view a de­ci­sion against Elane Photography, whose owner Elaine Huguenin re­fused to take pho­tos at a same-sex wed­ding. The New Mex­ico Supreme Court ruled in Au­gust against the pho­tog­ra­pher, say­ing she had vi­o­lated the state’s nondis­crim­i­na­tion clause by agree­ing to shoot wed­ding pho­tos for op­po­site-sex cou­ples but not gay cou­ples.

Those fil­ing friend-of-the-court briefs in fa­vor of the ADF’s po­si­tion in­clude some high-pro­file sup­port­ers of gay mar­riage, in­clud­ing Ilya Shapiro, Cato In­sti­tute le­gal coun­sel; Eugene Volokh, Univer­sity of Cal­i­for­nia at Los An­ge­les School of Law pro­fes­sor; and Dale Car­pen­ter, pro­fes­sor at the Univer­sity of Min­nesota Law School.

For the state to com­pel a pho­tog­ra­pher to take pic­tures at a same-sex wed­ding be­cause she does so at tra­di­tional wed­dings would be like forc­ing a Demo­crat to write speeches for a Repub­li­can, says a brief au­thored by the three men back­ing the ADF’s po­si­tion.

“[T]he First Amend­ment pro­tects the right not to cre­ate a mes­sage, not just the right not to con­vey another’s mes­sage,” ac­cord­ing to their brief.

The ACLU, which filed the case on be­half of the New Mex­ico les­bian cou­ple that was re­fused ser­vice, ar­gues that the photography shop must op­er­ate un­der the same anti-dis­crim­i­na­tion laws gov­ern­ing all pub­lic ac­com­mo­da­tions.

“A com­mer­cial busi­ness can­not so­licit cus­tomers from the gen­eral pub­lic to buy its ser­vices as a pho­tog­ra­pher for hire, and then claim that tak­ing those photographs is a form of its own au­ton­o­mous ex­pres­sive ac­tiv­ity,” the ACLU said in a state­ment.

The ACLU and ma­jor gay-rights groups are press­ing for le­gal sanc­tions against pho­tog­ra­phers and oth­ers in the wed­ding in­dus­try who refuse to par­tic­i­pate in same-sex cer­e­monies, but Mr. Car­pen­ter says that ap­proach could back­fire badly for sup­port­ers of same-sex mar­riage.

“I would re­mind peo­ple in the move­ment that the First Amend­ment has been their ally,” said Mr. Car­pen­ter. “We would not have the ad­vance­ment of gay rights in this coun­try with­out a lib­er­tar­ian-minded First Amend­ment.”

It’s not hard to imag­ine the ACLU’s ra­tio­nale be­ing used to com­pel a gay pho­tog­ra­pher to shoot pho­tos at, say, a wed­ding cer­e­mony at the anti-gay West­boro Bap­tist Church, or risk vi­o­lat­ing fed­eral and state laws that for­bid dis­crim­i­na­tion based on re­li­gion.

In­deed, among those fil­ing briefs on be­half of Elane Photography in­clude a group of 18 wed­ding pho­tog­ra­phers, in­clud­ing some who are ho­mo­sex­ual, Mr. Sears said.

“The vast ma­jor­ity of same-sex cou­ples do not want the ser­vice providers who dis­agree with par­tic­i­pat­ing at their cel­e­bra­tions, but there is a small num­ber of highly po­lit­i­cal ac­tivists who will do so to make a point,” said Mr. Car­pen­ter. “And they will cre­ate con­flicts that do not need to ex­ist.”

As the is­sue gains at­ten­tion, Mr. Sears said, he is see­ing “a grow­ing aware­ness that this poses a greater threat than peo­ple thought a few months ago.”

“To be told that I must take my tal­ent and I must use it to glo­rify that which I find wrong or do not agree with is most trou­bling,” said Mr. Sears. “That’s why I sup­port the right of this woman in Cal­i­for­nia to tell me no. Even for a Christ­mas card.”

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