Jordan Lorence is a veteran attorney who in 2006 represented a female photographer in one of the cases widely cited in the “religious freedom” law debate this week.
From his office in Washington, he has watched the events in Indiana and Arkansas and quickly reached this conclusion: Religious conservatives are the ones being discriminated against for their stance of conscience.
Lorence, the senior counsel for Alliance Defending Freedom, a religious-based legal lobbying group, represented a New Mexico photographer who declined to take photos for a gay wedding.
“Nobody has a religion that says they have to deny service to gay people, the way the other side portrays this issue,” he said. “That completely distorts reality and makes this seem like a segregated lunch counter in the South.”
He added: “I’ve had a long time to ponder this and I can’t think of a single person who has said ‘My religion says I can’t sell goods and services to gay people.’ Nobody.”
His observations offer an up-close look at one side of the issue that provoked a national uproar when lawmakers in Indiana and Arkansas approved legislation that they argue was designed to protect religious freedoms. The laws were widely criticized as measures that would allow for discrimination against gays and lesbians who could be denied goods and services in the name of religious belief. Many conservative backers of the law were opposed to same-sex marriage. Arkansas also took up the issue.
Governors in both states signed new legislation on Thursday that offers some protection against discrimination for sexual orientation, aiming to satisfy critics that included high-profile business leaders and gay rights activists.
Lorence explained why many religious people support such laws. What some are saying, he insisted, is that they cannot be a party to a ceremony in which marriage is defined differently than between one man and one woman – or serve as an advocate for such a marriage.
He said some professions do more than just sell goods. Some, he said, involve creativity and moral decisions.
People such as website designers, videographers, social media specialists and advertising agencies that devise campaigns – if asked to advocate political or religious platforms – have a right under the law to decline.
“They don’t have a standard product. It’s a message they have to formulate to put out there, but people want to ignore the fact that asking a (Christian) website designer to create a website that God does not exist could create some crisis of conscience.”
He said the law should protect, for instance, a Jewish tattoo artist asked to create a Nazi swastika.
The threshold for denying services in a religious protection case, he said, is whether the task required by the religious person is “expressive.” Does the job involve some sort of creativity?
For example, he said a Wal-Mart clerk could not refuse to check out a gay couple. “A Wal-Mart clerk can’t say, ‘I wont sell food that a gay couple wants to buy.’ That’s not expressive; they would lose the discrimination case.”
On the other hand, he argues, decorating a wedding cake with a message is an expressive act and should fall under religious protection laws.
“Those are going to create a conscientious objection. And if there is a nondiscrimination law that says, ‘You must promote my message or take part in my ceremony or I’m going to sue you for discrimination,’ that raises some significant constitutional issues.”
In 2006, Elane Photography owner Elaine Huguenin received an email request to photograph a “commitment ceremony” between two same-sex partners, asking if Huguenin would be “open to helping us celebrate our day,” according to the Alliance Defending Freedom website.
The site says the photographer declined to use her artistic expression to communicate a message at odds with her beliefs. The client, Vanessa Willock, filed a complaint with the New Mexico Human Rights Commission. After a one-day administrative trial in 2008, the commission ruled against the Huguenins and ordered them to pay $6,637.94 in attorneys’ fees to Willock. Lorence had invoked New Mexico’s version of the religious protection law.
The case then made its way through the New Mexico state court system, and the New Mexico Supreme Court upheld the ruling. In a concurrence accompanying the court’s opinion, one of the justices wrote that the Huguenins “now are compelled by law to compromise the very religious beliefs that inspire their lives,” adding “it is the price of citizenship.”
Said Lorence: “She is a photographer. Her work isn’t like taking photos for the DMV. Ms. Willock said she wanted to hire her because she liked her style, her artistic message. She said, ‘I want you to put our ceremony in the best light and communicate the message that our relationship is legitimate and that we love each other.’
“Elaine said that in good conscience ‘I can’t do that.’ She had a conviction not to take the job. She doesn’t take pictures like a gumball machine dispenses candy.”
In 2012, Santa Fe, N.M., hair stylist Antonio Darden made news when he said he would no longer cut the hair of Gov. Susana Martinez – or offer her the secret hair coloring recipe he designed just for her – because he disagreed with her opposition to gay marriage. Although his stand did not involve a religious protection law, Lorence used the anecdote to make a point.