This is no idle hypothetical from Rasmussen. A photography studio in New Mexico was fined years ago under the state’s Human Rights Act for refusing to accept a lesbian couple’s request to photograph their commitment ceremony because it was contrary to the owners’ Christian beliefs. The studio lost several rounds of appeals because the state’s antidiscrimination law forbids “public accommodations” from discriminating on the basis of orientation. As Gabe Malor said a few weeks ago after the big SCOTUS DOMA decision, this is the next flashpoint in political skirmishing over gay rights. Does free exercise of religion extend to how you run your business?
A heavy, heavy majority says yep, sure does:
If a Christian wedding photographer who has deeply held religious beliefs opposing same-sex marriage is asked to work a same-sex wedding ceremony, 85% of American Adults believe he has the right to say no. A new Rasmussen Reports national telephone survey finds that only eight percent (8%) disagree even as the courts are hearing such challenges.
You can, if you like, agree with the majority here without bringing free exercise into it. A strong-form libertarian would say that the photographer has a right to refuse for whatever reason he chooses, religious or not. It’s a matter of private property, not free exercise. That hasn’t been the law in America for 50 years, though; “public accommodations” are statutorily barred from discriminating on the basis of race and certain other categories. And needless to say, you’re not going to see national Republicans rally behind the idea that businesses should have a general right to discriminate restored. (Even Rand Paul’s unlikely to take that position at this point.) Stick with the religious justification and you’re on firmer ground in an overwhelmingly religious country, even one that increasingly supports gay marriage. The big stumbling block here for gay-rights activists is that their most compelling argument to opponents no longer applies: “It doesn’t affect you” is a good, solid, libertarian justification for legalized marriage, not so good when it means business owners will be forced to work with you whether they want to or not. I haven’t seen many polls on this particular question, but if Ras is right that we’re looking at a spread of upwards of 80 points, then national Democrats will stay far away from this topic. Critics of SSM argue that the slippery slope has no stopping point but 85/8 would seem to have plenty of stopping power — enough so that I wonder if a constitutional amendment would be in the offing if the Supreme Court sided with gay-rights supporters on the free exercise question.
The New Mexico case isn’t the only instance of this sort of thing happening, by the way. Erick Erickson has collected other incidents at the state level. The issue hasn’t broken out significantly among the population, though, I think, because people have been too consumed with the gay-marriage debate. As that recedes, that’ll change.