Apparently it is illegal to adhere to the normal and historic Christian faith in refusing to support Gay Marriage.

The Supreme Court of New Mexico ruled, on August 22, 2013, that Elane Photography illegally discriminated against a lesbian couple that sought their services for wedding photography. The couple promptly found a different photographer for the wedding. And the court ruling fined Elane Photography $7,000 for court costs. The ruling was based on New Mexico’s human rights code prohibiting discrimination on the basis of sexual orientation, race, religion, color, creed, ethnicity, ancestry, or gender. Elane photography made their case on the basis of the freedoms of religion and speech.

New Mexico’s court ruling seems flawed, and their ruling promises to stay unsettled and contentious for years to come.

First, this is not some lunch-counter case where a waiter declines patronage from blacks. A turkey sandwich is the same, regardless of the color of the costumer. When there is art involved, and photography is an art, even wedding photography, there is a lot of discernment involved so that the artist should have a wide-birth to select his or her settings so that the craft communicates his style, preferred impressions, and overall builds his or her portfolio. This is not free-license for just anything, but neither do we really want our courts dictating our arts very much if we can help it.

Second, this is a free-market. Businesses have to make business decisions. If a business is known to work with groups or individuals that the community does not like, for whatever reason, that business might lose contracts, jobs, and work orders. This is Machiavellian, I know. But on the softer end, without embracing full pragmatism, we still should be wise in our affiliations. I may know that an accused pedophile is probably innocent, but till his name is cleared, I might need to suspend any contracts with him till his name is cleared, or perhaps cut ties with him in case my “knowing” proves errant. One may even choose to avoid photographing weddings that seem doomed for divorce. I don’t know the statistics on this, nor the particular couple involved, a wedding photographer might now want his or her pictures to tied to epic fails.

Third, one should have some basic freedom to conduct one’s business in support or opposition of social institutions(i.e., not necessarily persons). One’s businesses may promote churches or mosques they like, carry name brands that they consider to be “ethical,” decline to let a charity advertise in their window, not accept trade agreements with foreign companies, aim their product sales at certain demographics, and be exclusive in which kinds of institutions they sell to, etc. It is silly to demand that a home-builder decline contracts with NGO’s (Non-governmental organizations). As a social institution, an NGO might be just the kind of group that one supports (or rejects, it works either way here). A green-energy home builder should not be forced to contract with high-rise construction corporations, no matter how profitable their offer may be.

Fourth, one should be able to target their craft towards specific demographics. It is silly to demand that a photographer who only does children’s portraits must also do senior pics, engagement shoots, prego’s (pregnancy shoots), or wedding photography. If someone refuses to do some of these kinds of shoots, is that anti-pregnancy discrimination? Or anti-marriage discrimination? Or for the senior pics, is it anti-education to not shoot their pictures? Obviously, a business should have some freedom to target their artistic craft, their business, and their livelihood towards audiences that they think they can please. It is probably not a good business model to readily accept business from groups whom you so radically disagree with that you cannot likely please them, and cannot likely get good reviews (and online reviews are life and death to modern businesses).

Fifth, it is fairly undemocratic and generally (though not absolutely) bad policy for courtrooms to dictate the mores of the country broadly, and for businesses specifically. In some cases, the courts do a fine job at holding people accountable to constitutional principles. And in the rarest cases, courts can rightly amend constitutions to reflect advancements in greater human dignity and civil liberty. Other times, courts can lose constitutional integrity and pit one person’s demands (to be able to get photographs from whomever they want) against another person’s freedom (to select clients whom they can satisfy). Effectively, sexual orientation becomes a more sacred and protected right than religious affiliation. Apparently, the first amendment no longer protects people from being coercive restrictions on one’s religion.

Sixth, when we factor in how we are not talking about merely targeted demographics–which businesses have the freedom to do, and we are not just talking about the stylistic choices and expertise of the photographer–again which businesses have a right to do (i.e., one may turn down a “biker wedding” or a “cowboy wedding,” and accept only “traditional” weddings), and when we remember that gay marriage is an institution, not merely a gender or a pair of genders, or even a sexual orientation, but a kind of societal recognition and acceptance of a particular institutionalized relation between two people, we can no longer guarantee a 1-to-1 identity between civil rights violations and institutional discrimination. It is normal and common, and even good, to discriminate against institutions on the basis of merit, preference, style, moral considerations, economic considerations, and so on. Need I mention how silly it would be to take a photographer to court who only shot gay weddings? Despite my moral disagreement with them, I respect that freedom of speech, the freedom of religion, and the free personal autonomy to run one’s business as they see fit. Now this is no blanket support of discrimination. Our country fought hard to outline general parameters for fair and equal treatment of people under the law to prevent discrimination on the basis of gender and racial discrimination, or handicap or heritage. But the constitution becomes contradiction if it’s principles for fair and equal treatment are contorted into religious discrimination, or into shackled speech.

Seventh, the freedom of religion does come up here. Opposition to gay marriage is not exclusive to religion, nor need it be based in religion. But it is common to religions such as Christianity (and X,Y,Z world religions). Traditional marriage (wherein marriage is defined as between a man and a women) is a moral norm for these religions, and our constitutional right to freedom of religion prohibits coercing anyone to violate integral or otherwise deeply rooted moral convictions of their faith, such as, demanding they advocate homosexual marriage. Here again, the civil rights comparisons don’t stick. There is no universal church creed, nor widescale theological tradition, nor clearly and consistently Biblical teaching, nor test of orthodoxy that demanded racism. Meanwhile, the same cannot be said for homosexual marriage. There was no orthodox racism, whereas traditional marriage is the universal orthodox view of the church.

Eighth, and building from the last point, the civil rights parallels bread down. Since gay marriage is not simply a “gender” issue, but a social institution, opposition to gay marriage cannot be simply and safely lumped under gender discrimination. Opposition to gay marriage does not have a clean and tight affiliation with racial discrimination, as if gay marriage were a comparable “civil right.” Neither males nor females are being discriminated against, as such. One is not even be discouraged from homosexual practice. Rather, the position opposes a particular institutionalization of homosexuality, with neither homosexuality nor marriage being a “gender.”

Lastly, We would do well to keep a market-friendly bias towards liberty such that one business may decline to photograph gay marriages, and another business may shoot gay marriages exclusively. They are allowed to vote with their business, and create by their energies. And they should not be forced by government coercion to conform their moral and religious convictions to court-ordered mores. Exceptions may occur, and this libertarian ideal might be too radical for some readers. But it is virtue, not vice, to advocate for freedom and liberty, especially in conducting one’s livelihood.

Having said all that, I’m not sure if Elane Photography should appeal to a higher court. Given the tenor of our current supreme court and the mood of the country at large, there is a strong possibility that the case would turn out poorly, establishing a negative precedent for the Traditional Marriage camp, and thus make things harder for future cases of moral coercion–such as forcing a studio to shoot weddings of institutions that they themselves, their religion, their moral judgments, and their reasoned beliefs, hold to be wrong. They may decide to go to the higher court, but the cynic in me thinks that the odds are against them right now.