TYRANNICAL TOLERANCE Weaving a tangled web of conflicting rights

against Elane and ordered it to pay $6,600 in attorney fees.

Elaine Huguenin says she is being denied her right to the “free exercise” of religion guaranteed by the U.S. Constitution’s First Amendment and a similar provision in the New Mexico constitution. Furthermore, New Mexico’s Religious Freedom Restoration Act defines “free exercise” as “an act or a refusal to act that is substantially motivated by religious belief,” and forbids government from abridging that right except to “further a compelling government interest.” So New Mexico, whose marriage laws discriminate against same-sex unions, has a “compelling interest” in compelling Huguenin to provide a service she finds repugnant and others would provide?

Eugene Volokh of the UCLA School of Law thinks Huguenin can also make a “compelled speech argument”: She cannot be coerced into creating expressive works, such as photographs, which express something she is uncomfortable expressing.

A New Mexico court, however, has held that Elane Photography is merely “a conduit for another’s expression.” But the U.S. Supreme Court (upholding the right of a person to obscure the words “Live Free or Die” on New Hampshire’s license plates) has affirmed the right not to be compelled to be conduits of others’ expression.

New Mexico’s Supreme Court is going to sort all this out, which has been thoroughly reported and discussed by the invaluable blog the Volokh Conspiracy, where you can ponder this: In jurisdictions such as the District of Columbia and Seattle, which ban discrimination on the basis of political affiliation or ideology, would a photographer, even a Jewish photographer, be compelled to record a Nazi Party ceremony?

The Huguenin case demonstrates how advocates of tolerance become tyrannical. First, a disputed behavior, such as sexual activities between people of the same sex, is declared so personal that government should have no jurisdiction over it. Then, having won recognition of what Louis Brandeis, a pioneer of the privacy right, called “the right to be let alone,” some who have benefited from this achievement assert a right not to let other people alone.

It is the right to coerce anyone who disapproves of the now protected behavior into acting as though they approve it, or at least into not acting on their disapproval.

So, in the name of tolerance, government declares intolerable individuals such as the Huguenins, who disapprove of a certain behavior but ask only to be let alone in their quiet disapproval. Perhaps advocates of gay rights should begin to restrain the bullies in their ranks.