Liberties Reporting on First Amendment freedoms

An impossible choice for Christian business owners

First Amendment | Wedding photographer’s dilemma highlights the need for clarity on conscience rights
by Steve West
Posted 7/07/20, 05:39 pm

A Christian wedding photographer in Virginia faces three bad options: compromising his religious beliefs, violating the law and risking bankruptcy, or shutting down. Chris Herring takes photos for LGBT clients but draws the line at content that violates his faith, like photographing a same-sex wedding. “I happily work with and serve all customers,” he said, “but I can’t and won’t let the state force me to express messages that contradict my beliefs.”

Herring filed a preenforcement challenge on June 30 against the so-called Virginia Values Act that took effect the following day. The statewide public accommodation law imposes fines on business owners who decline to serve individuals because of their sexual orientation or gender identity. It also bars Herring from explaining on his website his religious objections to same-sex weddings. In the lawsuit, Herring argues the law violates his right found in the First Amendment to the U.S. Constitution not to say things with which he disagrees.

If his dilemma sounds familiar, it should. Without clear guidance from the U.S. Supreme Court, Christian business owners face similar obstacles across the country. Last year, the Arizona Supreme Court handed a win to stationery designers Joanna Duka and Breanna Koski, saying they had the right to decline to create invitations for a same-sex wedding. A federal appeals court said videographers Carl and Angel Larsen did not have to shoot same-sex weddings. And the Kentucky Supreme Court upheld Christian printer Blaine Adamson’s right to decline to print pro-LGBT T-shirts.

But other cases remain unresolved. Colorado web designer Lorie Smith is waiting for a federal appellate court ruling after losing a suit over a Colorado law that would compel her to design wedding websites for same-sex couples. And Kentucky photographer and blogger Chelsey Nelson heads to federal court on July 14 to fight a state public accommodation law that would require her to take photos at LGBT weddings.

Despite successful court challenges, state and local governments continue to try to force business owners like Herring to violate their beliefs, partially because the Supreme Court hasn’t definitively ruled on the subject. In 2018, the justices decided in favor of Colorado baker Jack Phillips, who declined to make a cake for a same-sex wedding. But they limited their reasoning to the overt hostility a state civil rights commission showed to Phillips’ Christian beliefs. The justices will revisit the issue in florist Barronelle Stutzman’s case against the state of Washington for prosecuting her for declining to design flowers for a same-sex wedding.

Virginia’s new law is the most sweeping public accommodation law in the country, said Victoria Cobb, president of The Family Foundation, a Christian nonprofit organization in the state. She said that during debates over the bill, it was “crystal clear” that legislators wanted to make sure no one of faith could follow his or her conscience if it conflicted with the law. Cobb added that Herring’s lawsuit “was just the first of what no doubt will be an endless stream of lawsuits against the government’s infringement of freedoms guaranteed by the First Amendment.”

Associated Press/Photo by Richard Vogel (file) Associated Press/Photo by Richard Vogel (file) People outside an immigration court in Los Angeles in late February

Judges’ speech rights

A group of immigration judges sued the Trump administration on Wednesday over a U.S. Department of Justice policy prohibiting them from speaking about policy or law.

The judges’ union claims its members have a First Amendment right to discuss publicly U.S. Attorney General William Barr’s policy changes, including lowering case quotas, jurisdiction reassignments, and limiting judges’ ability to close cases. While the president appoints those who serve in U.S. District Courts and on the Court of Appeals and the Supreme Court, the attorney general chooses immigration judges. The lawsuit highlights a continuing rift between the Trump administration and the National Association of Immigration Judges.

It also draws attention to the extent to which the federal government can discipline employees who take to personal social media accounts or other off-work platforms to criticize employers or voice controversial opinions.

In a 1968 case, Pickering v. Board of Education, the Supreme Court decided the federal government could only curb public employees’ free speech if it had a compelling interest. But the justices shifted in 2006 with Garcetti v. Ceballos, siding with the U.S. government and deciding the First Amendment to the U.S. Constitution doesn’t protect on-duty public employee speech.

The judges argue in the lawsuit that the government cannot justify such a broad restraint on their public speech and the policy has prevented them from warning about “the impact of the COVID-19 pandemic on the immigration courts and detained immigrants.” —S.W.

No picnic

The day before the Fourth of July, Supreme Court Justice Brett Kavanaugh denied a request to stay Illinois Gov. J.B. Pritzker’s ban on mass gatherings. Kavanaugh, who is assigned to hear emergency petitions from a region that includes Illinois, offered no explanation.

Republican leaders challenged the Democratic governor’s ban on meetings of more than 50 people, arguing that it unfairly allowed religious gatherings of any size but not political gatherings. They had hoped to hold an Independence Day picnic, as well as an outdoor rally and indoor convention at some point.

After various state GOP organizations sued on Wednesday, a federal judge denied the request . In her opinion, U.S. District Judge Sara L. Ellis, who was appointed by President Barack Obama, ruled that “the Constitution does not accord a political party the same express protections as it provides to religion.”

Republican leaders have indicated they will ask the 7th U.S. Circuit Court of Appeals for expedited relief. —S.W.

Steve West

Steve is an attorney and freelance writer based in Raleigh, N.C. Follow him on Twitter @slntplanet or at his blog.

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  • Cyborg3's picture
    Cyborg3
    Posted: Tue, 07/07/2020 06:12 pm

    Our nation is changing so it is hostile to Christians, which is sad to see. We have let Democrats control most our institutions which has brought this on. Especially, our universities and schools are propaganda machines and if we are going to win the cultural war we had better reign it in. If we don't the percentage supporting revolution will grow and soon we will fall either by political domination or by outright overthrow of our government. It seems like we are in the days of Jeremiah where we will see our rights eliminated, our churches destroyed by hostile people seeking to eliminate our faith. Let us pray earnestly that God would again move our land to turn to Him   living faithful lives rooted in the word. 

  • MTJanet
    Posted: Tue, 07/07/2020 06:40 pm

    It would seem that, according to the Virginia Values Act, a black person would have to photograph a white supremist gathering, yes?  This is inherently wrong, and all business owners should fight a law that forces them to do business with organizations and events that are objectionable to them on any grounds.  I like the fact that most Christian businesses are LGBT friendly as this gives them an opportunity to witness, but nothing is gained in forcing Christians to concede to sin.   

  •  Xion's picture
    Xion
    Posted: Tue, 07/07/2020 07:25 pm

    The most irritating (and illegal) thing about these laws is their inconsistency.  For example, a Kosher deli is not forced to serve ham sandwiches.  Secondly, LGBTQ are lifestyle choices.  Going topless is also a lifestyle choice, but that is usually not allowed.  Thirdly, what other laws dictate that certain services must be provided?  If you sell kids shoes, can the government force you to sell every other kind of shoe also?

  • HANNAH.
    Posted: Wed, 07/08/2020 10:59 am

    Re: No Picnic
    The second-to-last paragraph has a redundancy: "... Obama-appointed U.S. District Judge Sara L. Ellis, who was appointed by President Barack Obama, ..."

  • Web Editor
    Posted: Wed, 07/08/2020 02:06 pm

    Thank you for pointing out the error. We have corrected it.

  • Ernie
    Posted: Wed, 07/08/2020 09:49 pm

    No Picnic: Maybe I'm reading the First Amendment wrong, but doesn't the "right to peaceably assemble" clause apply to the GOP case? I don't see how this is a religious question in the first place.

    Governor Pritzker's ban on mass gatherings, whether he made an exception for religious gatherings or not, seems to violate the right to peaceably assemble.

    Seems almost every state has violated the First Amendment when we look at it from that perspective. Certainly states across the country "allowed" protests, some even allowed rioting, looting, and arson by mass groups, too.

  • OldMike
    Posted: Tue, 07/14/2020 01:32 am

    Don't expect consistency from the left.  Their view of rights expands exponentially when it is a liberal or liberal group claiming certain rights.  On the other hand, everything narrows drastically when any conservative person or group claims particular rights. Yet the lefties are positive they are fair, tolerant, and just. 
     

    "Free speech" provides some of the best proofs of this.  ANY hateful, provocative, bigoted, profane thing out of a leftist's mouth is "protected free speech."  If we say something they don't like?  No way--that's HATE SPEECH and absolutely will not be permitted!

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