National Review Online editor-at-large Kathryn Jean Lopez joined the right-wing media's outcry over a New Mexico Supreme Court decision affirming that businesses can't discriminate against gay customers, blasting the court's "soft tyranny" and declaring that the decision amounts to the effective death of religious freedom.
In an August 26 post for NRO, Lopez cited the successful lawsuit against Elane Photography, whose owner refused to photograph a same-sex couple's commitment ceremony, as evidence of the "tyrannical" trend in our nation's "libertine" culture:
The court ruled that it is "the price of citizenship" that, although you can believe whatever you want, you can't act as if you take certain beliefs all that seriously. It would seem the position of the New Mexico Supreme Court is that believing men and women are expressly made for the institution of marriage, for one another -- that their very biology suggests as much, naturally ordered toward the creative gifts that are children -- is somewhat akin to believing in unicorn gods who will come to set us free. That is: utterly absurd. Believe it in private if you wish; but don't ever try to operate in the world outside your active imagination or your codependent church with your crazy beliefs in mind.
But then, this is how the soft tyranny develops. Reporters trip over one another to refer to Bradley Manning as "she" because he asked them to. Loving a brother who is suffering doesn't require lying to him. Increasingly, though, lies are not only expected but mandated. That's not love. That's not freedom. That's where a dictatorship of relativism and cultural delusion lead us. And our very laws are coming to reflect this.
What are we going to do about it? You will recall that Tocqueville liked a lot of what he saw here. What he liked best is the civil society he saw flourishing. Today, that civil society is waning and threatened. When the government says that religious beliefs that conflict with its mandates on health insurance, in the realm of contraception, sterilization, and even abortion, are not fit for the public square, and when it subjects to punitive fines any employer who insists on acting on his beliefs, then it discourages service. It marginalizes a cast of characters a democratic republic needs. As much as some may believe they have found the perfect formula for happiness in the libertine realm, moral and even biological coherence does have its upsides. We would do well to leave some room for that. [emphasis added]
Lopez joins fellow right-wing commentators in perceiving a threat to religious liberty where, in reality, there is none. As the court's opinion noted, Elane Photography's "choice to offer its services to the public is a business decision" and is thereby bound to follow the letter of the state's anti-discrimination law. The court stated definitively that this did not mean Elane Photography or any other business could not freely express its owners' religious convictions:
Elane Photography and its owners likewise retain their First Amendment rights to express their religious and political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.
Despite what anti-gay media figures proclaim, such notions are not unprecedented. For years, state and federal non-discrimination laws have placed commonsense restrictions on religious liberty when religious beliefs are used to justify public discrimination based on characteristics like race or gender. Indeed, the absurdity of Lopez's column would be painfully apparent if she attempted to defend a wedding photographer whose deeply held religious beliefs compelled her to discriminate against an interracial couple.
If Lopez truly wants to stop "tyranny" and oppression wherever they occur, she might see some merit in laws that protect individuals against arbitrary discrimination based on who they are.