In August 2013, the New Mexico Supreme Court ruled that a small photo studio violated a state anti-discrimination law by refusing, on religious grounds, to photograph a same-sex commitment ceremony. In November, the studio appealed the case to the U.S. Supreme Court, asking the Court to protect its owners from having to send a message in violation of their religious beliefs that same-sex commitment ceremonies or marriages are acceptable. 

In their petition to the U.S. Supreme Court, the owners of Elane Photography are asking the Court to rule on whether the photographic product they produce is protected speech, and whether they should be required to create "pictures or books that will tell stories or convey messages contrary to their deeply held religious beliefs." Elaine Huguenin, who has a degree in photography, contends that her work is not simply taking photographs, but posing photo subjects, cropping photos, and creating a compelling photographic presentation.

The Elane Photography v. Willock case is assigned docket number 13-585 and the U.S. Supreme Court has not yet decided whether to hear the case.

The U.S. Supreme Court has scheduled the Hobby Lobby and Conestoga Wood Specialties cases for oral argument on March 25, 2014. In both cases, owners of the privately held secular for-profit corporations are deeply religious and are opposed to abortion. They are offended that the Affordable Care Act (ACA) requires them to provide insurance for abortion drugs. The corporations are legal extensions of the owners, so they feel that when their corporations are forced to act against their sincerely held religious beliefs, they are also personally being forced to act. 

(As an aside, a friend has suggested that this argument might make it much easier for future plaintiffs to "pierce the corporate veil" if the companies are an "alter ego" to the extent that the corporate religion reflects that of the owners.  The Supreme Court's decision could impact corporate law more than "religious freedom" law and I would anticipate that the Court will be very careful in how it approaches this issue.)

Another way to look at the ACA cases is to consider whether an employer may shield employees from government-mandated health services when the employees do not agree with the employer and request those services. Can a secular, for-profit employer follow his or her religious convictions at the expense of the rights of his or her employees in not just this, but any area of dispute?

Setting aside the morality of abortion-inducing drugs, what would it mean if the U.S. Supreme Court ruled that employers could take away government-mandated rights of employees because of their religious beliefs?  Could this be expanded to other areas where secular for-profit corporations could discriminate against certain employees on religious grounds?  What if an employer required all employees to attend mandatory worship services and somebody who did not share those beliefs objected? What if an employer said that only Bible-professing Christians could be promoted into a company? What if an employer only hired Muslims?  What if a secular employer, on religious grounds, refused to recognize same-sex couples, and reaped the competitive financial benefit of this refusal? Would some employers look to discrimination as another way to benefit the bottom line? Would a broad ruling on these two cases could lead to protection of corporations who abuse their employees' rights under cover of religion?   (Note:  This brings to mind the fact that some issues, such as abortion and maybe even marriage, might be unnecessarily cloaked in religious terms when they should be addressed as general human rights issues and thus avoid much of this debate.)

Last week in Idaho, legislators considered a bill (Idaho HB 427) ( that would allow Idahoans to refuse service to those that they objected to on religious grounds.   According to the bill summary, HB 427, which is called the "Free Exercise of Religion Act,"  "Amends existing law to provide that a person whose exercise of religion is burdened in violation of specified law may obtain appropriate relief against any person relying upon any government action, enactment or law that burdens a person's exercise of religion."

Idaho HB 427 would establish the Religious Freedom Restoration Act for individual actions, not just government actions.  If a person feels that they have been compelled to act against their conscience, they can sue the person who made them commit that act.

The same Idaho legislator who introduced HB 427, Lynn Luker, also introduced HB 426 which applies to licensed professional or occupational licensees – they cannot lose their license if they refuse service or not participate in objectionable activities based on sincerely held religious beliefs. They can still be sued or fired from their jobs.

In a released opinion, Idaho Deputy Attorney General Brian Kane, HB 426 could "subject employees to personal liability when they are simply doing their job and a court later decides that the state or local government policy burdened their free exercise of religion."  Kane gave an example that if a state prison had a policy of not providing kosher or Halal meals to Jewish or Muslim prisoners, and the prisoners sued, the liability could be extended to those who cook or serve the food. 

Further arguments can be made that the Idaho bills are unnecessary because the protections are present under current law and that HB 426 and HB
427 would simply be used as a license to discriminate

In light of the debate, it was not likely that HB 426 would pass, and as of February 18, Rep. Luker has withdrawn HB 427 and returned it to committee. In a statement, Luker said, "The intent of the bill was to provide a shield to protect the free exercise of religion under the First Amendment in light of the variety of increasing government mandates. However, many misinterpreted the intent to be a sword for discrimination.  I respect the concerns that I heard and therefore want to find the right language to balance those concerns."

At the same time, in Kansas, the Republican majority in the Senate has refused to consider an act (Kansas HB 2453) that passed the House that would have provided legal protections for people and organizations that refused to provide goods and services to gay and lesbian services.  It would have protected individuals, groups, and business that cited religious beliefs in refusing to provide goods, services, accommodations and employment benefits to same-sex couples. While Senate Judiciary Committee Chair Jeff King has indicated they would still consider protections for rights of conscience, King and others have pointed out that the bill as written is too broad and might actually encourage discrimination against gays and lesbians.

In Oregon, the state Bureau of Labor and Industries has ordered a dentist, Andrew Engel, to pay nearly $348,000 to resolve allegations that he threatened to terminate a dental assistant unless she went to three-day religious conference on Scientology. The assistant refused because she believed that the conference would conflict with her Christian beliefs and offered to attend a secular conference instead. The dentist refused, and the assistant quit her job.  

While the facts are still coming out about this Oregon case, it would be interesting to know what the response would have been if a Scientologist had been required to attend a Christian-themed motivational session.

In the infamous New Mexico Supreme Court ruling against Elane Photography, the court said that people like Elaine must abandon their freedom as "the price of citizenship." That should not be. But the answer is not to blow up the system with broad bills such as Idaho's HB 426 and HB 427 which will create even more problems.

A delicate balance must be struck when handling cases where the religious beliefs of employees and employers are at odds. Maybe there is room for exemptions for individual creative works, and for small businesses and sole proprietorships so that Elaine Huguenin is not forced to develop creative materials that violate her conscience and small bakers aren't forced to make wedding cakes that violate their conscience. Maybe there is room in the Hobby Lobby and Conestoga Wood cases for the employees to opt in or out of insurance policies offering abortion drugs, maybe aggrieved parties in Idaho should pursue the remedies already available under current law. And in those times when employers do step over the line, and when employees claim the employer was coercive, the remedy should be proportional to the harm caused. iStockPhoto

Parties to these kinds of disputes should be well-served if they cooperatively seek solutions by identifying and respecting those specific personal areas which are non-negotiable and cordoning them off, while respecting the freedom of the areas in between where both sides must intersect. Identifying and preserving these areas of respect and finding opportunities for accommodation is not an easy process in today's ideologically divided world, but the results will be much more profitable for both sides than engaging in perpetual conflict in the public arena.  At the same time, the religious rights of the participants on both sides to belief and practice would be honored and protected.

Photo: iStockPhoto


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