Should a painter be allowed to decide what he or she paints?  Should a musician be allowed to decide what music to play or write?  Should a photographer be allowed to decide what pictures to take? 

In New Mexico, the answer to that last question is a resounding, “No.”

The New Mexico Human Rights Commission ruled on Wednesday that an evangelical Christian photographer discriminated against a lesbian couple by refusing a job to photograph the couple’s same-sex commitment ceremony. Religious rights attorneys plan to appeal.

The commission ordered Elaine and Jon Huenins, owners of Elane Photography in Albuquerque, N.M., to pay the lesbian couple $6,600 in attorney fees.

“It is just a stunning disregard for the First Amendment,” said Jordan Lorence, a senior legal counsel for the Scottsdale, Ariz.-based Alliance Defense Fund, which is representing the photographer couple in court.

Canada’s Human Right Commission has been, at the same time, busy accusing Ezra Levant, Mark Steyn and others of thought crimes (covered by the Shire Network News podcast here and here with many more details at FreeMarkSteyn.com), with the idea of “free speech” being considered foreign.

In fact, for an organization that is supposed to promote “human rights,” the HRC’s agents seem curiously oblivious to basic aspects of constitutional law. In one famous exchange during the [Marc] Lemire case, [Dean] Steacy [HRC investigator] was asked “What value do you give freedom of speech when you investigate?” — to which he replied “Freedom of speech is an American concept, so I don’t give it any value.” (I guess Section 2 has been excised from his copy of the Canadian Charter of Rights.)

If a photographer doesn’t want to take pictures at a same-sex commitment ceremony, but will get fined if she doesn’t, how soon before the First Amendment become a value-less concept within our own borders?

And this is not just a general free speech issue.  From the original article:

“[Vanessa] (Willock) had requested via e-mail for Elane Photography to conduct photography for her commitment ceremony, and the owner of Elane Photography responded that she would not perform that photography session because it was a same-sex commitment ceremony,” [Carrie] Moritomo [public information officer for the New Mexico Department of Workforce Solutions] told Cybercast News Service .

No punitive monetary damages were awarded because Willock did not seek damages, Moritomo added.

Lorence said the Huenins, who are fervent evangelicals, politely declined the request because they did not want to use their art to disparage traditional heterosexual marriage. That should have been the end of the matter, he said.

“The Constitution prohibits the state from forcing unwilling people to promote a message they disagree with and thereby violate their conscience,” Lorence said. “Christians should not be penalized for abiding by their beliefs.””

Eugene Volokh, UCLA Law School professor, constitutional scholar and contributor to the Volokh Conspiracy blog (where he’s blogged about this issue separately from the new story) is quoted, noting parallels to hypothetically requiring a freelance writer being forced to write for a pro-Scientology web site words that he does not believe in.  He also points out a bit of inconsistency.

“The law says that only when there is a ‘compelling government interest’ and applying the law is essential, only then can the government compel someone to violate their religious beliefs,” Volokh said.

The fact that New Mexico does not recognize same-sex marriage makes it hard to argue that government has a compelling interest in protecting same-sex commitment, he added.

Human Rights Commissions are becoming less and less aptly named, and are instead becoming mere tools in the hands of liberal interest groups to silence dissent.  Where the legislative avenue doesn’t work, these commissions and activist judges are the Left’s next front to get their way in social law when the people are clearly against them.

Doug Payton blogs at Considerettes.

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