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Gay rights ruling could impede political solution

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Vanessa Willock asked Elane Photography in Albuquerque to photograph a ceremony of commitment to her same-sex partner in September 2006.

The company’s owners, Jonathan and Elaine Huguenin, refused the job on grounds they would not create images that would suggest marriage between two women was in any way acceptable. The Huguenins say their understanding of Christianity and of the Bible requires that marriage be a union of one man and one woman.

New Mexico law prohibits businesses from refusing to provide services on the basis of a potential customer’s sexual orientation. The state Human Rights Commission, state District Court and the Appeals Court all found that Elane Photography had unlawfully discriminated against Willock. The case is now before the New Mexico Supreme Court.

This is just one of many cases in the nation’s courts concerning the rights of gays and lesbians, especially the rights associated with marriage. The U.S. Supreme Court is considering whether the federal Defense of Marriage Act is constitutional, and it is reviewing whether voters in California denied gays and lesbians equal protection of the law when they banned gay marriage in the state.

If our nation is very unlucky indeed, the stage is set for another Roe v. Wade dilemma.

Just to be clear, I am a strong supporter of same-sex marriage. I have written in UpFront before that my eldest son is gay. Like the Huguenins, I am a Christian, but my understanding of my faith and of Scripture on this issue could not be further out of alignment with theirs.

The Huguenins are arguing that wedding photography is a form of expression protected by the First Amendment. Our First Amendment protections include a right not to be compelled to express something inconsistent with our own beliefs. You can’t force someone to say the Pledge of Allegiance, for example.

Willock and her supporters say that a wedding photographer is offering a service for sale to the public that is akin to architectural or Web design services. There is creativity involved, certainly, but it is just a service. They say that what Elane Photography is doing is in no way different from denying services to a mixed-race couple, should one’s understanding of the Bible be that blacks and whites or Asians and Latinos should not be allowed to marry.

It is intriguing and instructive that the state of New Mexico, through our elected representatives, has banned discrimination in the marketplace on the basis of sexual orientation but has consistently refused to legalize same-sex marriage. Our state’s political process has identified the parameters New Mexico can live with on this issue. Because it is a political issue, the parameters are always subject to debate and revision.

The state Supreme Court is not being asked to decide the legitimacy of Willock’s domestic partnership or her suitability for marriage. It is being asked to decide what constitutes protected expression and whether lower courts have interpreted too narrowly a state law designed to protect an individual’s religious freedom.

You don’t need much imagination to appreciate what would hit the fan should the court rule not on those issues but instead take this opportunity to declare that marriage in New Mexico by law includes same-sex couples. In Roe v. Wade, we’ve seen what happens when courts leapfrog the public.

The U.S. Supreme Court was asked in 1973 to rule on the constitutionality of a Texas law criminalizing all abortions except an abortion required to save the life of the mother. Ruth Bader Ginsberg, now a Supreme Court justice, said in 1992 while still a federal Appeals Court judge, that the court could have ruled only on the constitutionality of what was at that time a rather extreme state abortion law. That would have helped states understand and adapt to the parameters governing abortions and women’s sovereignty over their own health and well-being. Instead the court decision set a single standard that invalidated every state’s abortion laws. Normally, Ginsberg said, opinions are written to invite states to engage politically in search of a solution to the issues identified by the court. Roe did no such thing.

Ginsberg said that prior to the ruling in Roe, states were evolving on the issue. Some states clearly would have restricted abortion as much as possible, but others would have wound up with very liberal laws. Roe unleashed an angry, motivated, well-organized opposition to any abortion, all but halting progress toward a sensible, politically acceptable policy, according to Ginsberg.

There are those, myself among them, who think same-sex marriage is a human right. I think it’s good for social cohesion and good economic policy. At some level, nothing would please me more than seeing the U.S. Supreme Court strike down state and federal prohibitions against same-sex marriage.

But that kind of efficiency comes with a political price those of us on Willock’s side of the legal fight had better be certain we’re prepared to pay.

UpFront is a daily front-page news and opinion column. Comment directly to Winthrop Quigley at 505-823-3896 or wquigley@abqjournal.com. Go to ABQjournal.com/letters/new to submit a letter to the editor.

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