Positions harden on gay, religious rights in Idaho

The Supreme Court's decision to let sanctions stand against a New Mexico photo studio ripples into Idaho

dpopkey@idahostatesman.comApril 10, 2014 

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In the final week of the 2014 Legislature, the Add the Words proponents made a final push for a hearing on expanding protections in the Idaho Human Rights Act to gays, bisexuals and transgender people.

KYLE GREEN — kgreen@idahostatesman.com Buy Photo

Prospects of resolving disputes over Add the Words and religious freedom in the marketplace may have gotten a little more difficult thanks to the U.S. Supreme Court.

The court's refusal Monday to consider the appeal of an Albuquerque, N.M., photographer who declined to shoot a same-sex couple's commitment ceremony met with opposite responses.

Advocates of adding sexual orientation and gender identity to the Idaho Human Rights Act hailed the move.

"This reaffirms the fact that if someone is going to operate in the public marketplace, everyone has to play by the same rules, and that peoples' religious liberties are already protected," said Monica Hopkins of the ACLU.

However, opponents of Add the Words cited the pending New Mexico case in urging the 2014 Legislature to pass House Bill 427, an attempt to expand the Idaho Free Exercise of Religion Act to protect photographers, bakers and florists who choose not to work on gay ceremonies.

"The decision not to hear the Elane Photography case makes it really clear that religious freedom is under assault and we need to protect all Idahoans from government coercion," said Julie Lynde of Idaho's Cornerstone Family Council. "This is the height of bullying, and when people are able to use the government and the courts to do it, it's outrageous."

DEEPER DIVIDE?

House Speaker Scott Bedke has called on the foes to negotiate a deal and said that's still his aim for when the 2015 Legislature convenes in January.

"This is an issue that should be tackled together, public accommodations as well as the other protections," Bedke said. "Both sides are talking about increasing their protections, so there ought to be some common ground."

Bedke acknowledged, however, that the photography case might make lines already drawn in the sand still deeper.

"It certainly raises that possibility, but I don't think anybody's got their spade out," said Bedke, R-Oakley. "I guess time will tell."

Bedke's Senate counterpart, Pro Tem Brent Hill, took the brunt of numerous Add the Words protests during the 2014 session. Late in the session, he made good on his word to meet with key proponents, Senate Democratic Caucus Chairwoman Cherie Buckner-Webb and House Assistant Democratic Leader Grant Burgoyne, both of Boise.

Hill declined to say whether the New Mexico case might complicate action in 2015. "There is a lot of time for a lot of events between then and now," said Hill, R-Rexburg.

Rep. Lynn Luker, R-Boise - who authored and then withdrew HB 427, saying it had been misunderstood as a "sword for discrimination" - said he hasn't decided whether to bring back the bill in some form or take a different approach.

Luker said a pending Supreme Court decision on the Hobby Lobby contraception case and same-sex marriage cases advancing in several states could affect the religious freedom issue.

"The landscape on these issues may well change before January, and what the courts say will need to be considered in deciding upon the scope and details of any further legislation," he said.

WHAT HAPPENED IN NEW MEXICO?

Elane Photography's co-owner and lead photographer, Elaine Huguenin, opposes same-sex marriage. She told prospective customer Vanessa Willock that she only photographs "traditional weddings." Willock's ceremony with her partner included vows, rings, a minister, flower girls and a wedding dress.

In 2003, the New Mexico Human Rights Act was amended to add "sexual orientation," defined as "heterosexuality, homosexuality or bisexuality, whether actual or perceived."

Willock filed a complaint with the New Mexico Human Rights Commission, which held that Elane Photography discriminated. Willock was awarded $7,000 in attorney's fees, which she later waived. No other monetary or injunctive relief was granted.

Elane Photography appealed and a district court granted Willock summary judgment. First the state Court of Appeals and then the New Mexico Supreme Court upheld the commission's judgment.

In a 5-0 decision by state high court Justice Edward Chavez, the court rejected arguments that the Human Rights Act violated the free speech and freedom of religious clauses of the First Amendment and the New Mexico Religious Freedom Restoration Act, a law similar to the Idaho statute Luker sought to expand.

"(W)hen Elane Photography refused to photograph a same-sex commitment ceremony, it violated the (Human Rights Act) in the same way as if it had refused to photograph a wedding between people of different races," said the court.

In a special concurring opinion, Justice Richard Bosson wrote that when doing business, Elaine Huguenin and her husband "have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different.

"That 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."

'A CAKE IS NOT JUST A CAKE'

When Lynde testified for HB 427 on Feb. 5, she was joined by her Cornerstone colleague, Barry Peters. But in a 3 1/2-hour hearing, they were the only proponents besides Luker.

Fifty-nine opponents appeared, including religious leaders, city officials and high school students. They said the bill would fuel discrimination by letting religious opinion trump individual rights. About 500 people crowded the halls outside.

This week, Lynde said the fears of discrimination were unfounded.

"Idahoans don't treat people like that," she said.

Noting that about 80 percent of weddings are performed as religious ceremonies, Lynde said the photos, flowers and cakes have sacred power.

"A cake is not just a cake, a picture is not just a picture," Lynde said. "What you are asking those people to do is use their art, to take hours and hours of their lives, to create a piece of themselves that is a part of that ceremony."

In New Mexico, Huguenin said she would have taken portraits or other pictures, as long as they weren't intimate expressions of affection, including holding hands.

"She said, 'I cannot come to your wedding and pose you in kissing situations and create memory books and stuff that goes on your wall. I can't use my creative God-given abilities to do that,' " Lynde said.

"I mean, that's a lot to ask of somebody. To violate their eternity, to violate their relationship with God."

20/20 VISION

Burgoyne said the U.S. Supreme Court was right to deny the Huguenins a final appeal.

"There is a lot that society does to support commerce and there are certain societal norms," he said. "Among those are that all comers who bring money are entitled to services and products with equal footing. It all comes undone if religious belief carries an absolute veto over reasonable regulation of the marketplace."

Burgoyne said expanding civil rights protections to gays, bisexuals and transgender people is legally inevitable.

"The only issue is how many more people we're going to hurt along the way arguing about it," he said.

Lynde sees a double standard, citing last week's forced resignation of Mozilla CEO Brendan Eich over his opposition to gay marriage.

"Why is it OK for Mozilla to refuse to honor the private, constitutional rights of their CEO but it's not OK for Elane Photography?" she asked.

Still, like Bedke, Lynde said she holds out hope for compromise.

"I think we all need to sit down and have a conversation about 'live-and-let-live' laws," she said.

Lynde said she doesn't think the photography case necessarily makes a legislative solution tougher.

"This helps clarify with 20/20 vision what the battle is becoming," she said. "It's breathtaking."

Dan Popkey: 377-6438, Twitter: @IDS_politics

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