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
Add to Briefcase
See more stories about...
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.

What We're Following See More »
WOULD HAVE BEEN HIS SECOND STINT
Howard Dean Pulls out of DNC Race
2 hours ago
THE LATEST

Howard Dean, the former Vermont governor and Democratic National Committee chair, announced he's pulling out of the running to regain the chairman's post. Dean "announced in a pre-recorded video to a conference of state Democratic chairs that he would step aside to allow for a new face to lead the party as it seeks to rebuild."

Source:
RUBENSTEIN FUNDING ELEVATOR REPAIR
Washington Monument Closed until 2019
4 hours ago
THE DETAILS

"Once again, businessman and philanthropist David M. Rubenstein has come through for the National Park Service. This time, he's pledged funding needed to modernize the Washington Monument's elevator-- but the monument will remain closed until 2019 while repairs and improvements are underway. Rubenstein's donation of between $2-3 million, announced Friday, will correct those ongoing elevator issues, which have shuttered the monument since August 17."

Source:
$618 BILLION IN FUNDING
By a Big Margin, House Passes Defense Bill
7 hours ago
THE DETAILS

The National Defense Authorization Act passed the House this morning by a 375-34 vote. The bill, which heads to the Senate next week for final consideration, would fund the military to the tune of $618.7 billion, "about $3.2 billion more than the president requested for fiscal 2017. ... The White House has issued a veto threat on both the House and Senate-passed versions of the bill, but has not yet said if it will sign the compromise bill released by the conference committee this week."

Source:
FILED BY JILL STEIN
Michigan Attorney General Sues to End Recount
8 hours ago
THE LATEST

Bill Schuette, Michigan's attorney general, has filed a lawsuit on behalf of the state to halt the recount of the state's voting results. The recount was elected by Green Party candidate Jill Stein. Schuette says the recount shouldn't occur because Stein cited no evidence of voter fraud or tabulation error.

Source:
SUCCEEDS UPTON
Walden to Chair Energy and Commerce Committee
9 hours ago
THE DETAILS

"Republicans have elected Rep. Greg Walden (R-OR) the next chairman of the powerful House Energy and Commerce Committee. Walden defeated Reps. John Shimkus (R-IL) and Joe Barton (R-TX), the former committee chairman, in the race for the gavel" to succeed Michgan's Fred Upton.

Source:
×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login