Two Thoughts About Elane Photography and a Question to Consider

By Jeremiah G. Dys, Esq.

Today, the Supreme Court of the United States “denied cert” on an appeal by lawyers for Elane Photography, the New Mexico photographer who was sued several years ago for refusing – on grounds of her faith – to photograph a same-sex commitment ceremony.  In layman’s terms, “denied cert” is lawyer talk for refusing to hear the appeal.  There will be a lot of analysis flowing soon, but here’s two things you need to know and a question to ponder as the pundits pour in:

1.  Today’s decision will have an impact mainly limited to New Mexico

This case turned on a matter of state law, their nondiscrimination statute.  The last body to have heard the case was the highest court in New Mexico.  If SCOTUS can avoid it, they try to avoid getting involved in matters of state law that do not weigh heavily on matters of Federal law and the Constitution.

While this was unquestionably an important case, on the pleadings it did not heavily implicate the First Amendment and mainly sought review of a state law claim.  Of course, other states will be emboldened by this decision and begin to enact similar laws and precedent in their own state courts, but, for now, the impact of having this appeal denied is limited to these facts in only that state.

2.  Nondiscrimination laws will be challenged again . . . soon

That said, there is another shoe to drop.  Actually, probably more like 49 other shoes.

We have moved (or are moving) away from the issue of marriage to the issue of how the cultural acceptance of homosexuality is to be applied in life. (For more on how we got here, I recommend Joe Carter’s piece.) Will it be a forced compliance?  Voluntary?  How does religious liberty interact with these nondiscrimination laws?  Your job?  Your company?

The points of litigating these nondiscrimination laws are as myriad as the diversity of this nation.  In the coming years, we will see a new round of bitter dialog engulf us.  You think the rhetoric over marriage was heavily charged?  This cultural discussion will make things looks tame in comparison.  Watch for a clash between these new, perceived civil rights and the long-standing rights enshrined in our Constitution.  One will either have to bend to the other or another forcibly bent into submission.

When a right given to us by our Creator is confronted by perceived rights declared by the creature, sparks fly.

So, here’s the question: Are you ready to bear the cost of citizenship?

One of the judges in New Mexico upholding this penalty on Elane Photography famusly noted that this penalty is, “the price of citizenship.”  That ought to absolutely take your breath away.  It’s worth pondering: are you ready to bear the cost of citizenship?

As a follower of Christ, you will bear it by being constantly told that you are a backwards bigot.  It does not matter how much you love your fellow man, nor how often you are “welcoming,” if you hold to a Biblical view of gender, you will be forever branded a bigot until your repent of your sins of faithfulness to Scripture.  Certainly, this will come along with angry gesticulations and furious faces.  That’s ok; meet them with a smile.  And, be certain, that this offense is because you are named by Christ – not because your actions give credence to the name-calling.  Do not back down in fear, even if that fear masquerades as a strong desire to like everyone (and be liked in return).

Beyond this, and perhaps because of this, you will constantly be drawn into the discussion on homosexuality.  Repeatedly.  You will not be able to avoid it.  If somehow you have managed to steer clear of the debate thus far, that will change.  As the new tolerance takes the reigns, you will be called upon to answer for what you believe.  I Peter 3:15 would be a good passage to remember – be prepared with an answer.  And, a simple answer may not do.  You are called to given an answer “for the hope that is within you.”  You need to know how your hope in Christ influences this discussion and be ready to pivot to it as you speak.  And so must your children.

Bearing this, “cost of citizenship” likewise means that you will be called to defend the religious liberty God gave you at birth and that has been affirmed in our Bill of Rights.  Government did not give you that right and it certainly cannot take it away.  God created humans to worship him (see the Westminister Shorter Catechism, Question 1 for more).  Whether religious liberty is strengthened in the Courts or stripped entirely from our Constitutional guarantees, we must be as resolute Peter and John in Acts 4 who, when told to no longer speak of Jesus or preach His Gospel, firmly replied, “Whether it is right in the sight of God to listen to you rather than to God, you must judge, for we cannot but speak of what we have seen and heard.”

And, if you’re confronted for being a Christian in public again, be like Peter and the apostles in Acts 5 and boldly declare, “We must obey God rather than men.”

In between, be like the early church of Acts 4:23-31 and pray for boldness.

You’re going to need it.

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Jeremiah G. Dys is Senior Counsel to Liberty Institute, a nationwide religious liberty law firm. As a First Amendment attorney, Dys works with Liberty Institute across the country to restore and defend religious liberty. Dys is regularly featured in local, state, and national print, radio, and television outlets. He lives in a log home on the edge of the country close to Charleston, West Virginia, with his wife and four sons.