The US Supreme Court announced Monday that they will not consider the appeal of New Mexico-based Elane Photography whose owners Elane and Jonathan Huguenin refused to photograph a same-sex commitment ceremony, initially citing their religious convictions.
The New Mexico Supreme Court ruled that Elane Photography’s refusal was the same as if they’d refused to photograph the marriage of a couple of a different race and violated New Mexico’s Human Rights Act.
The reaction from social liberals and conservatives has been predictable, but the libertarian community has been more tepid in its initial reaction.
The case is extremely nuanced, and the multiple factions within libertarianism are certain to disagree. The never-timid Ludwig von Mises Institute was quick to throw their opinion out there, likening the decision to involuntary servitude.
I’m not sure I’d take the decision as far as that, but the Mises Institute may have a point. In a free society, the Huguenins would be at liberty to only provide wedding photography services to those with whom they select to do business, for whatever reason. Likewise, the Huguenins would be free to suffer the consequences is their business practices were disagreeable to a large segment of the population.
As anyone who has had professional pictures taken knows, you don’t own those photographs. They are considered the property of the photographer under US intellectual property law. The same as a song, painting, or other artistic expression. The customer and the photographer enter into a contract, and then the photographer generally sells (literal) copy rights to the customer so they may make their own physical copies for personal use, such as a wedding album or print of a photo.
Wedding photography has become more and more in demand, and photographers have become increasingly artistic in the ways they capture the big day. Wedding photography, and photography in general, has evolved to being an artistic medium of emotion as much as it is a form of documentation.
New Mexico is making the argument that wedding photography is a service rendered, not artistic expression.
By refusing to take on the case, which has garnered national attention since the incident first occurred in 2006, the Supreme Court is essentially saying that they can’t be bothered to settle the matter. Should the government be able to tell an individual, or in this case a ‘company’ consisting of two individuals, when they may or may not exercise their artistic liberty?
Why should even the most pro gay-marriage advocate be concerned by this development? Because this isn’t just about gay rights or about religious freedom. Not hearing the case isn’t just major blow to other rights guaranteed by the First Amendment, it may also be a potential roadblock to progress for both free speech and tolerance.
Much like the New London v. Kelo decision paved the way for states to take the matter of eminent domain into their own hands, conservative states may overcompensate and begin looking to protect business and themselves by either passing laws like the controversial Arizona SB1062 or refusing to pass other anti-bullying or anti-discrimination laws.
It is no secret that public opinion is swinging wildly in favor of gay marriage, but just as much care should be taken to preserve artistic and religious freedoms. The resignation of Mozilla CEO Brendan Eich last week showed us that in today’s information age, relying on social pressure to expose and ostracize those we disagree with is an effective, quick, and much more liberty-friendly alternative to litigation. That being said, it is still dangerous to liberty that the Huguenin’s side isn’t being heard.
A move toward more restrictions on commerce is a distinct move away from a freer society.
According to the Huguenins’ lawyer, there are several similar cases stemming from states that don’t have the same protections afforded by New Mexico’s Human Rights Act. It is only a matter of time before the Supreme Court’s hand will be forced.