Family Research Council

Liberty, conscience and New Mexico photographers

By Rob Schwarzwalder Senior Vice-President


Rob Schwarzwalder is Senior Vice President at Family Research Council. This article appeared in the Pasadena Citizen on August 26, 2013.


New Mexico Supreme Court Judge Richard Bosson has written a concurring opinion regarding a case involving a New Mexico couple that photographs weddings. His opinion states that their refusal to photograph a homosexual wedding was an affront to the larger common good. He called on them "to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different." This follows a benign allowance by the judge that the couple, named Huguenin, "are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead."

In other words, confine your faith to the four walls of your home or church. Pray privately. Whisper "do you know Jesus?' to people you think might not be too offended. But don't practice your faith in any meaningful way. Cultural consensus is the determinant of commercial and social behavior, not one's belief in objective truth. The temple of the mind is, to Judge Bosson, sacrosanct; the forum of activity outside of confined privacy is a place of coercion and religious repression. Welcome to fascism in America, 2013.

Judge Bosson argues that "the sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship."

Surrendering one's conscience to the demands of the state is "the price of citizenship?" As one of my elderly relatives might have put it quite succinctly, who does this guy think he is?

Consider three elements of the judge's decision. First, he says the Huguenins are "free to say as they wish," but then he tells them they have to do something they believe is wrong. What bosh: A wedding photographer can verbally insult his clients ad nauseum as long as he takes their photos? Or, if he quietly and tastefully declines to participate in a ceremony he believes is morally wrong, he nonetheless is legally compelled to do so anyway? Within Judge Bosson's ruling are the seeds of free speech erosion, if not collapse.

Immediately, defenders of Judge Bosson will argue that some professing Christians used supposed religious convictions to justify racial segregation. That's correct. And religious convictions have been used to justify all kinds of bad things. But claiming a theological basis and actually having one are two different things. No serious student of the Bible can make any case other than that racism is irreverence to our Creator and a slight to the Son of God who gave his life for the sins of all. Racism and its ugly offspring, segregation and inequality, wilt under the heatlamp of truth and reason. Judeo-Christian moral teachings about sexual conduct and marital union do not.

Our founders also argued that there were objective standards determinable in logic and nature that should inform public law and morality. For example, if male-female complementarity and natural child-bearing are the purposes of marriage, it is inarguable that marriage is by definition heterosexual and monogamous. The "laws of nature," self-obviating in biology, neurology, and simple logic, make this self-evident. And it was upon an assumption of both natural law and divine revelation (see Michael Novak's fine book "On Two Wings" for a persuasive exposition of this argument) that America was begun, its Declaration of Independence published, and its Constitution approved.

The judge errs in another, and equally serious, way: There is a profound difference between intrusive or aggressive conduct animated by religious conviction (something the New Testament never countenances, by the way) and obedience to biblical commands that essentially is passive, non-coercive and un-repressive. The Huguenins did not prevent the couple who approached them from finding other professional photographers. They did not coerce the couple into psychiatric counseling or religious indoctrination. They did not insult the couple with obscenities or castigate them publicly. Based on a moral conviction grounded in 3,500 years of Judeo-Christian teaching on human sexuality, they declined to participate in something they believe God forbade.

Think of how Judge Bosson's decision might play-out in other arenas: A clueless Gentile woman enters a Jewish deli and asks for several pounds of ham. Politely but clearly, the owners decline, explaining that pork is forbidden by kosher dietary law. The woman sues, claiming that her right of free commerce has been curtailed on the basis that at one venue, which she entered and then left voluntarily, she was not provided with the full range of culinary options she prefers.

Of course, the woman then had several other opportunities to achieve her objective, including finding another grocery store or butcher shop or simply contacting a local farmer who raises and slaughters pigs. The "offense" to the woman was not invasive or physically, materially, or monetarily harmful. She was just prevented from doing what she wanted in a given location and by a given business.

Or what if a polygamist and his "wives" were to come to a studio asking for photographs of themselves and their children: They were not asking for legal approval of their union(s) but wanted shots of themselves together and with their kids. Using Judge Bosson's logic, the photographer would be compelled tacitly to endorse the moral validity of these relationships by photographing them.

Coercion and repression are the hallmarks of tyranny. They are also the hallmarks of Judge Bosson's decision. Draw your own conclusions about what those two facts mean for the future of our country, and why people of conscience (be they liberal or conservative) might wish to ponder if liberty still matters in the United States.