Alan Sears doesn’t know what it’s like to be refused service for being gay, but he does know what it’s like to be refused service for being a conservative.
Six months ago, a Southern California photographer turned him down flat when he asked her to take a Christmas card photo of his family, explaining in an email, “I oppose the goals and objectives of your organization and have no interest in working on its behalf.”
That was fine with Mr. Sears, CEO and general counsel of the conservative Alliance Defending Freedom, who is leading the legal battle on behalf of photographers, florists, cake decorators and others sued for refusing to create products for same-sex weddings.
What applies to wedding cake designers asked to violate their core beliefs, Mr. Sears argues, applies equally to liberals who decline to fill certain orders to conservatives customers.
“We’re talking about human dignity. It violates someone’s dignity to require them to create images that violate their core beliefs,” Mr. Sears said. “I think I’m a pretty nice guy, and my family are kind folks, but to require this woman to portray me in a loving, family-centered way that is contrary to her views and her conscience, I think it would be an act of violence against her dignity.”
Not long ago, his argument was widely dismissed by civil rights advocates as the isolated view of a subset of far-right Christians, but that is changing. A growing number of libertarians, supporters of same-sex marriage and even gays themselves are lining up with the Arizona-based legal defense group as the issue moves toward the Supreme Court.
The ADF has asked the high court to review a decision against Elane Photography, whose owner Elaine Huguenin refused to take photos at a same-sex wedding. The New Mexico Supreme Court ruled in August against the photographer, saying she had violated the state’s nondiscrimination clause by agreeing to shoot wedding photos for opposite-sex couples but not gay couples.
Those filing friend-of-the-court briefs in favor of the ADF’s position include some high-profile supporters of gay marriage, including Ilya Shapiro, Cato Institute legal counsel; Eugene Volokh, University of California at Los Angeles School of Law professor; and Dale Carpenter, professor at the University of Minnesota Law School.
For the state to compel a photographer to take pictures at a same-sex wedding because she does so at traditional weddings would be like forcing a Democrat to write speeches for a Republican, says a brief authored by the three men backing the ADF’s position.
“[T]he First Amendment protects the right not to create a message, not just the right not to convey another’s message,” according to their brief.
The ACLU, which filed the case on behalf of the New Mexico lesbian couple that was refused service, argues that the photography shop must operate under the same anti-discrimination laws governing all public accommodations.
“A commercial business cannot solicit customers from the general public to buy its services as a photographer for hire, and then claim that taking those photographs is a form of its own autonomous expressive activity,” the ACLU said in a statement.
The ACLU and major gay-rights groups are pressing for legal sanctions against photographers and others in the wedding industry who refuse to participate in same-sex ceremonies, but Mr. Carpenter says that approach could backfire badly for supporters of same-sex marriage.
“I would remind people in the movement that the First Amendment has been their ally,” said Mr. Carpenter. “We would not have the advancement of gay rights in this country without a libertarian-minded First Amendment.”
It’s not hard to imagine the ACLU’s rationale being used to compel a gay photographer to shoot photos at, say, a wedding ceremony at the anti-gay Westboro Baptist Church, or risk violating federal and state laws that forbid discrimination based on religion.