Saturday, 24 August 2013

New Mexico Supreme Court - Breaching Religious Beliefs "The Price of Citizenship"

A decision by the Supreme Court of New Mexico Elane Photography v Vanessa WillockAugust 22, 2013 has aroused controversy not because of its decision which was predictable but because of the reasoning put forward by one of the Judges Justice Bosson 

The case involved a small photography business run by  Elaine and John Huguenin who refused to photograph a "Commitment Ceremony" held by a Lesbian couple.  Same Sex marriage is not legal in New Mexico but it was accepted in the Court that the proposed  "Commitment Ceremony" was a Marriage Ceremony in all but name.  The Huguenins were then sued for breaching the New Mexico Human Rights Act (NMHRA) which is a Non Discrimination Act.  The New Mexico Supreme Court held that the acts of the Huguenins constituted unlawful discrimination in breach of NMHRA and their sincere religious objections to photographing the "Commitment Ceremony" were not protected by the First Amendment to the US Constitution

Leaving aside the fact that is Orwellian to describe as a "Human Rights Act" legislation which prohibits what private individuals, such as the Huguenins may or may not do the decision was predictable.  Refusals to provide services based on religious principles have been uniformly unsuccessful in the Courts of the USA, Canada, UK and Australia.

It is the reasoning by Mr Justice Bosson which is worthy of note and comment

 {90} All of which, I assume, is little comfort to the Huguenins, who now are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views.

{91} On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

{92} In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.

As a lawyer I come across a lot of clap trap masquerading as legal reasoning but this particular piece is in a class of its own.  The idea that the price of citizenship is to compromise personal beliefs is breathtaking in its intolerance furthermore there is a complete lack of logic in saying
"what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others."
and then forcing the Huguenins to do what they do not want to do. 

I certainly agree that "all citizens must compromise, if only a little, to accommodate the contrasting values of others." but that raises the fundamental question of what compromise, what accommodation, was shown to the "contrasting values" of the Huguenins

Similarly with the remark 
"That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. "
This reasoning does not logically lead to forcing people to act contrary to their conscience.  Forcing people to act contrary to their conscience as this case has done, does not show any "sense of respect" whatsoever for others. In fact, speaking as a Non American, what strikes me most about this judgment and its reasoning is how profoundly "Un American" it is.  Freedom and personal liberty are, or at least were, the founding principles of the United States and the decision in this case and the reasoning behind it are profoundly contrary to both those principles.

Respect for others would have said that the Huguenins  should not be forced to act contrary to their conscience and  would have held that the Lesbian couple were fully legally entitled to hold their "Commitment Ceremony" but they could not force anyone else to participate in it or endorse it.  Instead what the Supreme Court of New Mexico has decided is that the Huguenins must lose their liberty of choice and conscience in the name of "equality". 

To paraphrase that great American, Benjamin Franklin
"They who can give up essential liberty to obtain a little temporary {equality}, deserve neither liberty nor {equality}".

Thursday, 1 August 2013

Same Sex Marriage - Defining Marriage the Mormon Effect

Today I was in Court in Chorley Lancashire just down the road from one of the 2 Mormon Temples in Britain.  The  Mormon Church in Lancashire is currently running a Pageant at the Temple to celebrate 175 years since the first Mormon Missionaries arrived in Britain with many Mormons in America, including Mitt Romney, able to trace their ancestry back to those early converts.  I confess I have a soft spot for the Mormons and have visited, though not entered (see Gallagher (Valuation Officer) V Church of Jesus Christ of Latter-Day Saints [2008] UKHL 56 ) the Salt Lake City Temple and both British Temples.  Mormon History is colourfull and fascinating.

So how you may be wondering does this relate to the passing of the Marriage (Same Sex Couples) Act 2013 ?  The Act changes the definition of Marriage as historically understood in Britain by section 1(1) which says

"Marriage of same sex couples is lawful."

The previous legal definition of Marriage was first formally stated by Lord Penzance in the  1866 case of Hyde v. Hyde [L.R.] 1 P. & D. 130 where he said that Marriage in English law meant
" the voluntary union for life of one man and one woman, to the exclusion of all others"

A similar approach was taken by the US Supreme Court in the 1878 case of Reynolds v USA 98 U.S. 145 

The common factor in both cases was that they concerned Mormon Marriages. As is fairly well known the Mormon Church practiced Polygamy (often called plural marriage) until it banned the practice in 1890 .  In fairness to the modern day Mormon Church (proper title Church of Jesus Christ of Latter Day Saints)  I should make it clear that it has never endorsed Polygamy since 1890 and the practice is totally forbidden by the Church. Nevertheless Polygamy was a major feature of 19th Century Mormonism and it is entirely because of that history that there was felt to be any need to formally define Marriage in Law.  

So does the ending of the historical definition of Marriage open the way to Polygamy ?  As is being discovered in Canada permitting Same-Sex Marriage makes it more difficult to put forward a logical argument against future attempts to change the law so as to permit Polygamy or Plural Marriage between consenting Adults.

However the change in the law which is happening on both sides of the Atlantic also raises the question of how far Government will go to enforce obedience to the new definition and there the 19th Century Mormon experience is instructive and sobering.  

The practice of Polygamy by the Mormon Church was objected to by other Americans simply because they disagreed with it.  Despite many lurid novels suggesting coercive Polygamy there is little objective evidence to support this and much evidence that many Mormon wives supported "the principle" as it became known and indeed spoke in its defence.  Therefore provided the practice was voluntary one would have thought that the Mormons would have been left alone but that was certainly not the case.

The United States Congress passed a number of increasingly draconian laws against Polygamy and against Polygamists, ie Mormons, in ways that restricted their Civil and Constitutional rights way beyond simply banning the practice of Polygamy itself.  

The 1862 Morrill Anti-Bigamy Act 1862 banned bigamy and limited church and non-profit ownership in any territory of the United States to $50,000 so targeting the Mormon Church in the Utah territory

The 1874 Poland Act eliminated Territorial Courts and Law enforcement officers in the Utah Territory, contrary to the normal practice of the US in its territories, and also restricted the ability of those living as polygamists to serve as jurors even if they had not been convicted of any crime.  As was discussed in Reynolds v USA 1878 this provision led to a wonderful exchange with one potential juror 

"Are you living in polygamy?" .... I am only a fornicator." 

 The 1882 Edmunds Act prohibited "bigamous" or "unlawful cohabitation" without requiring any evidence that there had been any form of Marriage ceremony polygamous or otherwise.  It  revoked polygamists' right to vote, made them ineligible for jury service, and prohibited them from holding political office.

Finally the 1887 Edmunds- Tucker Act dissolved the Mormon Church and directed the confiscation by the federal government of all church properties. The legality and constitutionality of this extraordinarily draconian act being endorsed the US Supreme Court in Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States 136 U.S. 1 (1890).
Fortunately for Mormonism the 1890 decision to abandon  Polygamy allowed the Church to return to legality, eventually its property was restored and Utah entered the United States as a State with a Constitution which banned Polygamy.

The history of Mormon Polygamy might seem only of academic interest but I suggest that studying what happened is relevant today.  What the Mormon experience shows is that ultimately Government is willing to use coercive force to defend its own definition of Marriage and to destroy those religions or forces that oppose that definition.  The history of Mormonism also shows that Constitutional guarantees of Religious Freedom can easily be overridden and ignored in this situation.  

Now that Government on both sides of the Atlantic are redefining marriage will they ultimately decide to convict those religious leaders who speak out against the new definition and abolish or expropriate the property of those religions that do not conform to the new ideology.  Based on the Mormon experience I would not be surprised.  As the Mormons showed changing the definition of something as fundamental as Marriage is a step with enormous consequences.