The New Victim: The White, Straight Male

Some private businesses claim serving gay couples violates their civil rights. It may not hold up legally, but don’t underestimate its political appeal.

One more try: Protesters.
National Journal
Alex Roarty
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Alex Roarty
Sept. 19, 2013, 4:10 p.m.

Con­ser­vat­ives may have found an­oth­er way to stem the rising tide of rights for Amer­ica’s gays and les­bi­ans. Rather than a front­al as­sault on the con­sti­tu­tion­al­ity of, say, same-sex mar­riage, they’re tak­ing an­oth­er tack — as­sert­ing that their own civil rights are vi­ol­ated when they’re forced to treat gay couples like straight ones.

Take the case of Elaine and Jonath­an Huguen­in, co-own­ers of a small Al­buquerque, N.M., pho­to­graphy com­pany. Last month, the New Mex­ico Su­preme Court de­term­ined the couple had ac­ted il­leg­ally in 2006 when they re­fused to take pic­tures of a com­mit­ment ce­re­mony (held in lieu of a still-il­leg­al mar­riage) between a gay couple. Not­ing that state law pro­hib­its dis­crim­in­a­tion based on sexu­al ori­ent­a­tion, the state court de­creed that ac­com­mod­at­ing dif­fer­ent types of people was the “price of cit­izen­ship” in Amer­ica.

It was yet an­oth­er vic­tory for gay-rights ad­voc­ates, who have watched pub­lic opin­ion swell in their fa­vor in re­cent years. But to the Hugeun­ins and those who have ral­lied to their cause, the case rep­res­ents something else: a rare op­por­tun­ity to shift pub­lic opin­ion in the oth­er dir­ec­tion.

The Huguen­ins ar­gue be­ing forced to pho­to­graph the ce­re­mony amoun­ted to a per­se­cu­tion of their faith and an in­fringe­ment on their First Amend­ment rights. “This idea that people in Amer­ica can be com­pelled by law to com­prom­ise the very re­li­gious be­liefs that in­spire their lives as the “˜price of cit­izen­ship’ is an un­be­liev­able at­tack on free­dom,” Jim Camp­bell, an at­tor­ney for the Huguen­ins, told Na­tion­al Journ­al. “Jonath­an and Elaine Huguen­in were simply try­ing to live their lives and op­er­ate their busi­ness in ac­cord­ance with their faith.”

Camp­bell is selling the no­tion that people of faith — not gay men and wo­men — are the real vic­tims. That’s a jar­ring claim to LGBT ad­voc­ates, but it’s a tac­tic they ac­know­ledge could upend the gay-rights de­bate. It’s not a new idea; claims of re­li­gious free­dom have been used for dec­ades to stave off the reach of nondis­crim­in­a­tion laws. But it’s one that op­pon­ents of gay rights hope res­on­ates with the pub­lic — and per­haps, down the road, the courts. They feel they have found a high­er ground in a de­bate they oth­er­wise ap­peared destined to lose. “I think there is an op­por­tun­ity for our side if we can help people un­der­stand how this move­ment is not, or isn’t any­more, about ob­tain­ing free­dom for ho­mo­sexu­als,” said Peter Sprigg, seni­or fel­low for policy stud­ies at the Fam­ily Re­search Coun­cil. “It’s about tak­ing free­dom away from any­one who dis­agrees with them or their con­duct. I do think that goes bey­ond what most Amer­ic­ans sup­port.”

The Huguen­ins’ case isn’t an isol­ated one. Camp­bell, who is part of the Chris­ti­an non­profit group Al­li­ance De­fend­ing Free­dom, said he is work­ing on sim­il­ar cases in Lex­ing­ton, Ky., where a T-shirt print­er re­fused to make ap­par­el for a gay-pride cel­eb­ra­tion, and in Wash­ing­ton state, where a flor­ist de­clined to make flor­al ar­range­ments for a gay-mar­riage ce­re­mony.

Bey­ond those cases, the is­sue may move to the fore­front of the pub­lic’s mind when the Sen­ate be­gins de­bate this fall on the Em­ploy­ment Non-Dis­crim­in­a­tion Act, which would ban dis­crim­in­a­tion on the basis of sexu­al ori­ent­a­tion in hir­ing and fir­ing em­ploy­ees. The act, known as ENDA, is dif­fer­ent be­cause it’s about em­ploy­ment rather than pub­lic ac­com­mod­a­tion, but it raises sim­il­ar ques­tions of re­li­gious liberty — wheth­er, for ex­ample, a private Chris­ti­an book­store can re­fuse to hire a gay clerk. (Gays and les­bi­ans are not con­sidered a pro­tec­ted group un­der the land­mark Civil Rights Act of 1964.)

Gay-rights sup­port­ers ac­know­ledge the con­tours of the fight will be dif­fer­ent — and likely more dif­fi­cult — than the battle over mar­riage equal­ity. An ar­gu­ment fo­cused on re­li­gious liberty, they say, is a po­tent one. “That’s ab­so­lutely now the primary ar­gu­ment op­pon­ents of LGBT equal­ity are mak­ing,” said Bri­an Moulton, leg­al dir­ect­or of the Hu­man Rights Cam­paign. “They’re try­ing to as­sert that the people ex­per­i­en­cing dis­crim­in­a­tion here aren’t LGBT people ne­ces­sar­ily but are people of faith who want to pre­serve their op­pos­i­tion to ho­mo­sexu­al­ity.”

Polling sug­gests that Moulton shouldn’t worry. A sur­vey con­duc­ted earli­er this year by the Hu­man Rights Cam­paign and the Third Way, a cent­rist Demo­crat­ic think tank, found broad op­pos­i­tion to new laws that would al­low busi­nesses to deny ser­vices to gay men and wo­men. Sixty-four per­cent, for in­stance, said they op­pose such a law even if it only ap­plied to small busi­nesses provid­ing wed­ding-re­lated ser­vices. In a ques­tion tailored for the New Mex­ico case, 54 per­cent of adults said it was wrong for a busi­ness to deny wed­ding-re­lated ser­vices to a gay couple; only 15 per­cent agreed the com­pany should be al­lowed to re­fuse ser­vice for wed­dings be­cause of re­li­gious reas­ons.

The key polit­ic­ally, Moulton said, is dis­tin­guish­ing between busi­nesses that op­er­ate in the pub­lic sphere and strictly re­li­gious in­sti­tu­tions such as churches. The pub­lic sup­ports let­ting churches hire based on their be­liefs, he said. Re­gard­less of pub­lic opin­ion, Moulton might also have the law on his side. Tra­di­tion­ally, groups that lose a civil-rights de­bate re­sort to claim­ing a re­li­gious ex­emp­tion for their be­liefs — and courts rarely re­cog­nize such an ex­emp­tion.

But cases like the one in New Mex­ico of­fer Re­pub­lic­an politi­cians a chance to sidestep their in­creas­ingly fraught op­pos­i­tion to gay mar­riage while still de­fend­ing the val­ues of so­cial con­ser­vat­ives. The ques­tion is likely to be cent­ral to the 2016 pres­id­en­tial race. One lead­ing can­did­ate for the GOP nom­in­a­tion, Sen. Rand Paul of Ken­tucky, sparked a fur­or three years ago when he sug­ges­ted that own­ers of private busi­nesses such as res­taur­ants should be bey­ond the reach of fed­er­al civil-rights law. (Paul has since walked back those com­ments.)

But it’s easy to see the ap­peal of the ar­gu­ment to re­li­gious voters in Iowa, South Car­o­lina, and else­where. And while the Huguen­ins are still con­sid­er­ing wheth­er to ap­peal the New Mex­ico de­cision to the U.S. Su­preme Court, it’s en­tirely pos­sible this will be a ques­tion that plays out in the polit­ic­al arena be­fore it’s defin­it­ively settled by a court. That makes the battle for pub­lic opin­ion now all the more cru­cial.

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