Conscience Freedoms Denied by Liberal Courts

Two recent court cases illustrate the incoherence and remarkable intolerance of “liberal” views regarding conscience.

One involves the bottomless pockets of the atheist Michael Newdow, who most recently joined several plaintiffs in a lawsuit against the U.S. Treasury Department demanding the words “In God We Trust” be scrubbed from U.S. currency.  Newdow advocates what Richard John Neuhaus called the “naked public square,” a public life stripped of all references to God or to the duties we owe to Him.  The “Constitution” is invoked, that document granting jurists ultimate authority over the local customs of citizens a thousand miles away.  The courts have been as wary of religion approaching the minds of impressionable children as an epidemiologist is wary of meningitis.  A child in a public school must never have to endure even the vicinity of any common, publicly acknowledged prayer, lest it wound him in his feelings, and lest it undermine a parent’s conscientious objection to giving homage to the Guarantor of conscience.

That supersensitive concern must puzzle a young Christian couple in New Mexico, the Hugenins.  They run a small photography business, and they were sued, not for doing anything, but for begging to decline from doing something.  They cannot in good conscience take pictures for a celebration of sodomitical relations.  They are not saying, like Melville’s Bartleby, that they should prefer not to.  They are saying that they must not.  They have no choice in the matter—unless they wish to betray all that they hold most dearly.  And, with stunning insouciance and callousness, the New Mexico Supreme Court has ruled that such betrayal is the price you must pay to live in a civil society.

Nothing could be further from the truth.  It’s like saying that one must cease to be fully human in order to attain to the human flourishing which civil society is for.  That is a contradiction in terms.  That the court does not see it as such suggests that it has not considered the nature of religious faith, the claims that the worship of God makes, and the centrality of conscience to the human person.

Think of the violence the state wishes to wreak upon that young couple.  Their involvement in the celebration would not be incidental.  Unlike people attending a graduation ceremony, they would not be merely present while others did something ordinary, something that even the atheist would not call indecent.  If you’re going to take successful photos of the groom and groom, you have to enter into the spirit of the occasion.  You have to ask them to kiss one another.  You have to photograph their embraces.  You have to be a participant.

Elane and Jonathan HugueninAlter the terms of the situation.  Suppose the Hugenins were asked to shoot photographs at a party thrown to celebrate a friend’s divorce.  Would they be required by law to participate in that?  Suppose it was a celebration of a porn magazine’s jubilee.  Must they assist in that, if the editor comes a-calling?  Why should they be compelled to stifle their consciences and be less than human, just to run a business?  Aren’t business and politics meant to serve the flourishing of human persons, and not the other way around?  Why should running a business expose you to what Jefferson called tyranny upon the mind of man?

Conscience-forcers will argue that the Hugenins are like a racist restaurateur who turns away a black customer.  I wonder whether Americans have lost the capacity for rational thought, so feeble are their powers of analogy.  First, the restaurateur is in the position of Bartleby, not in the position of Daniel, who refused to do homage to the statue of the emperor.  He would prefer not to serve the black customer; but his objections are not moral.  It is not his conscience speaking, but his self-will.  He does not say that it is wrong for a person to eat.  If he believed that, he’d not have gone into the business in the first place.  He’d be six feet underground.  He simply does not want to serve the man his dinner.  But that won’t do, not for someone whose business is to serve the bodily needs we all share in common.  It is wrong not to feed the hungry, and people do not digest food through the skin!  But the Hugenins most certainly believe that two men or two women celebrating a mimic-marriage are engaging in behavior that is gravely wrong.  It’s the behavior and not the persons that they cannot in conscience serve.  If one of them were to ask them to photograph her brother’s graduation, there would be no problem.

Second, the restaurateur is not being asked to cooperate in a deed.  What the man at the lunch counter does when he leaves the diner is not his business.  A bad man may show up at your stationery shop to buy paper.  What he does with that paper is not your business.  But it’s another matter entirely if the chef or the stationer is asked to take action to support something he believes to be evil.  Suppose a Kleagle from the Ku Klux Klan shows up at your bakery and wishes to order a cake with a flagrantly racist decoration—are you required to make that cake?  Why?  Keep the law out of it for the moment.  Consider only the demands of conscience.  What would we call the chef who gives in, who knows that what the Kleagle is ordering is wrong, and whose conscience tells him that to comply is evil?  We call him a coward, that’s what.

The real question is not whether the Hugenins have a duty to obey their consciences, but why any lover not merely of freedom but of humanity would want to compel them to disobey.  Here it’s not just that a Hugh Hefner claims a supposed right to produce pornography.  He is claiming the right to make you look at it, to be a part of it, knowing full well that you believe it is evil.  He wants you to be either a coward or a hypocrite.  What is going on?  What kinds of people want to leave the souls of their fellow human beings a twisted mess, by forcing them to violate their consciences?  Who would want to make Quakers shoot to kill, not because they need the Quakers to do that, but just because they revile their pacifism and want to rub it out?

One way to blunt your own consciousness of wrongdoing is to dragoon as many people as possible into it, to compromise them, to wear down their defenses, to entice them if possible, to badger or threaten them if necessary.  The homosexuals in question cannot tolerate dissent.  If even one person is allowed to decline to manifest a tacit approval of sodomy, that is a punishable offense.  You must be suborned or silenced.  A child may not be made to endure the proximity of prayer, but he may be required, in some of our schools, to say “I am gay,” or to imagine it, regardless of his conscience or his parents’ moral directives; and if he doesn’t, he will be castigated for his intolerance.

What we see here is the imposition of a religion—the religion of the sexual revolution, as bizarre and incoherent and dehumanizing as it proves to be.  The state has become the church, and hearkens to no commandments but those of its own devising.

Editor’s note: Pictured above are Elane and Jonathan Hugenin.

Anthony Esolen


Professor Esolen is a teaching fellow and writer in residence at Thomas More College of the Liberal Arts, in Merrimack, New Hampshire. Dr. Esolen is a regular contributor to Crisis Magazine and the author of many books, including The Politically Incorrect Guide to Western Civilization (Regnery Press, 2008); Ten Ways to Destroy the Imagination of Your Child (ISI Books, 2010) and Reflections on the Christian Life (Sophia Institute Press, 2013). His most recent books are Reclaiming Catholic Social Teaching (Sophia Institute Press, 2014); Defending Marriage (Tan Books, 2014); Life Under Compulsion (ISI Books, 2015); and Out of the Ashes (Regnery, 2017).

  • Michael Paterson-Seymour

    The totalitarian element implicit in democracy was well understood by Rousseau.

    “Each man alienates, I admit, by the social compact, only such part of his powers, goods and liberty as it is important for the community to control; but it must also be granted that the Sovereign [the People] is sole judge of what is important,” for “ if the individuals retained certain rights, as there would be no common superior to decide between them and the public, each, being on one point his own judge, would ask to be so on all; the state of nature would thus continue, and the association would necessarily become inoperative or tyrannical.” Few liberals have pointed out so clearly the contradiction between popular sovereignty and universal human rights

    His conclusion is well known, “whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than that he will be forced to be free; [« ce qui ne signifie autre chose sinon qu’on le forcera d’être libre »] for this is the condition which, by giving each citizen to his country, secures him against all personal dependence.”

    Now, the old-fashioned Throne & Altar Conservative has his judge; for him, the ruler of a Christian people must be a faithful son of the Church. It is not without interest that some Liberals are now seeking a secular equivalent in the international community and its organs, with the Security Council and the International Criminal Court replacing the Chair of Peter.

    • PiusFan

      If you’re trying to insinuate some equating between rule via the Social Reign of Christ and the quasi-despotism we are sliding into, nothing could be further from the truth.

      The Church has definitively taught the Social Reign of Christ as God’s truth, which naturally would have spared us the last few centuries of sub-intellectual miasma and barbaric multi-million body counts.

      Rule in a confessional state does not mean some Catholic poobah would arbitrarily decide what goods and liberty you get to keep or not keep. The ruler would be governing in full accordance with divine and natural law, while making discretionary judgments in those areas that do no admit of only one possible licit course of action, but all of whose options are licit and in accordance with the mind of the Church. No more pure popular sovereignty nor contrived notions of universal human rights. Just divine and natural law. Imagine that.

      On the other hand, continuing on with this secular republic-based ‘Catholic Moment’ fantasy is indirectly feeding the modernist apparatus that will be at war with Catholic truth. While periodically giving us the erudite Joseph Bottums of the world who allegedly will help us expand our Catholic conscience while continuing to further erode our Catholic patrimony.

      • Michael Paterson-Seymour

        Quite the contrary.

        Rousseau’s point is that there is no one to judge between the public on the one hand and the individual on the other.

        Now the Throne and Altar conservatives solved Rousseau’s dilemma by placing the Holy See as the judge between ruler and ruled. Thus, Chateaubriand described Christian Rome as being for the modern what Pagan Rome had been for the ancient world—the universal bond of nations, instructing in duty, defending from oppression. De Maistre, too, argued that power may be limited from above, but not from below; subjects may not judge the sovereign, or impose conditions on him, but the Pope may, and his judge is God. Bonald says the same. That is why the Legitimist and the Ultramontane parties virtually coincided, from the Revolution to the First World War.

        • PiusFan

          The Church’s teaching has nothing directly to do with Rousseau, and existed long before Rousseau. The Church has been clear that Christ rules all, so States and their rulers have obligations to Christ, just as all societal entities and institutions do. Along with the benefit that humanity is not subjected to the arbitary liberal whims of modern man.

          Evading the problems and issues of those like Rousseau is an indirect benefit, not the motive behind what the Church teaches.

          • Michael Paterson-Seymour

            Certainly the Church has always taught that states and rulers have obligations to Christ. What was disputed for centuries (one thinks of the Guelphs and Ghibelines, the Gallicans and Ultramontanes) was who was to judge in particular cases and the power of the pope (the Indirect Power as it is sometimes called) over temporal rulers.

            It was the Revolution (which embraced the ideas of Rousseau) that brought this into sharper focus.

            • Adam__Baum

              “Certainly the Church has always taught that states and rulers have obligations to Christ. ”

              And states and rulers have always taught they have no such obligations.

              • Michael Paterson-Seymour

                They used to.

                Often, in the past, this was conveyed to the people in images, like the famous image of Clovis, the first Christian king of the Franks in the royal abbey of Saint-Denis. At the top, we see the heavens opening, the Father, with the Lamb, standing as slain on His right hand and the seven lamps that St John speaks of, burning before the Father’s throne. We see the Spirit descending and the seven parted tongues of flame burning on the head of Clovis, whose posture exactly mirrors the Father’s. The significance is obvious: the seven lamps in heaven, the seven tongues of flame on earth, the one the counterpart of the other.

                A thousand years later, Bossuet appeals to the same tradition, when he says that whereas St Paul says in Ephesians 4:7 “to every one is given according to the measure of the gift,” (so that there is no one who alone has full abundance) to the anointing of Christian kings we rather apply the text, “God giveth him not the Spirit by measure.”

    • tamsin

      Thanks for the references. Yes, totalitarian. Yes, they are trying to replace what has always been an invitation to obey the Chair of Peter with a compulsion to obey the State.

      [the People are] the sole judge of what is important [for the community to control]… the majority will rule on what is allowed to be in your head.

      giving each citizen to his country sounds like placing a new baby into the arms of the “federal family”, the new talking point (point of doctrine? revelation?) coming out of the Obama administration: that we are all members of a “federal family”.

      • ColdStanding

        Recalling that the people probably does not mean the the total number of people, but the special courtiers, The People.

    • Adam__Baum

      Perhaps Rousseau would have provided a more credible commentary if he hadn’t been so theologically wrong, especially on the question of original sin.

    • Sean

      The Rousseau quote is very pertinent here. Elane Photography (the Huguenin’s business) violated the New Mexico Human Rights Act when it discriminated against a same-sex couple. This is the reality of conducting business in a state with inclusive non-discrimination laws. The Rule of Law applied. If anyone wants to change this, they’re going to need a more convincing approach than making tortured analogies about forcing Quakers to kill. Not many people equate protecting civil rights for GLBTs with forced homicide. I don’t think that one would pass muster with Pope Francis, based on his recent comments.

      • Adam__Baum

        “when it discriminated against a same-sex couple”

        What the hell ever hapened to freedom of association?

        Choosing not to transact is not discrimination. Several years ago, I was siolicited to provide tax advice regarding retirement plans by an individual contemplating divorce, I informed him that I could not in good conscience offer this advice (as an aside, the divorce was being pursued to further his adultery) which was being solicited solely to enable him to break his vow on the best terms.

        This is not the “rule of law”, but the rule of laws. Maybe next time the court can advance the rights of polygamists.

        • One Eyed Jack

          “What the hell ever happened to freedom of association?”

          It died with SCOTUS ruling that any and all “commerce” is “interstate commerce.” That makes the US Gov’t the ruler of all who own and operate a business. (Google “SCOTUS interstate commerce” and get an eyeful)

          Since this is a Protestant country, and the Protestants are OK with same-sex attraction and marriage, then EVERYBODY is going to be OK with same-sex attraction and marriage. If not, to jail you go.

          Catholics will have to: a) become Protestant (which most have functionally become anyway), or b) Become martyrs in prison, or c) Leave the country.

          • Adam__Baum

            The Protestants are OK with same-sex attraction and marriage,

            No, some are-and among the only times I’m theologically in agreement with my Assemblies of God co-worker is on this issue. Ditto my Wisconsin Synod Lutheran friend.

            I do, however tell them this is a direct result of Luther’s position that marriage was a civil contract and not a Sacrament.

            • Bono95

              Especially because Luther was complacent in a German noble’s bigamy and his own “marriage” was not valid by any Church or Civil law.

      • Art Deco

        “Rights for [insert train wreck of consonants]”?? Why should anyone have the right to compel someone to do business with them? A photographic studio does not even meet a conventional definition of ‘public accommodation’.

      • redfish

        Its pertinent in two ways. On the one hand, you’re right, Rousseau is arguing for the rule of law over pure popular rule. On the other hand, he believed the proper point of the state was to secure liberty, not govern free association. His influence is evident in the Declaration of the Rights of Man and Citizen. Article 4: “Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights.”

  • Art Deco

    I suspect these decisions are indicative of the essential superciliousness of our professional-managerial bourgeoisie. They do not have any regard for the judgments of their ancestors and do not have any regard for the discretionary judgments of people from classes and subcultures other than their own. Their understanding of constitutional government sees themselves in a tutelary position. The appelllate judges and the public interest bar are the principals and the deans, and the rest of us are the student body. The legislature is the student government. Like so much else with liberal political discourse, they are ever revealing that high school never ended for them.

  • smokes

    Democrat presidents regularly appoint screwballs to the bench…for life. Justice Felix Frankfurter colluded with then attorney Thurgood Marshall ( with the help of Alexander Bickel) to write the brief for Brown vs. Board of Education. The end justifies the means for these communist-leaning apparatchiks.

    There are 4 or 5 on the supreme court Right Now. It bodes ill for our Constitution and America’s diminishing prospects.

    • PiusFan

      You seem to be overlooking the fact that for over 35 years, the U.S. Supreme Court has been dominated by Republican-President appointees. Let’s not try to hang this solely on the Democrats. The Republicans are just as bad.

      • Adam__Baum

        And they all appoint sinful men to positions of lifelong unaccountable power.
        The modern SCOTUS justice is generally what we used to refer to in my youth as a “dweeb”, that is, a very bright individual with weak social skills who finds affirmation in the applause of others to the narcisstic logorrheic musings that now pass for judicial opinions.
        (Thank God for that, the lawyers with strong social skills have become litigators manipulating juries into disproprtionate and destructive awards with lachrymose narratives, those miscreants merely cause economic havoc)
        The Court has always been problematic. Justice Jackson once observed that the court wasn’t final because it was infallible, it was infallible because it was final.
        Starting with the arrogation of power that occurred in 1803, the Court has a long history of offering windy opinions that can’t withstand the judgment of history.
        Marbury v. Madison, Plessy v. Ferguson, Buck v. Bell, Korematsu v. The United States, Roe v. Wade, Kelo v. New London, NFIB v. Sebelius are just a handful of cases that were affronts to anything remotely like “justice”.
        The problem has been worsened by the existence of “law schools” that serve not to educate, but indoctrinate, especially at the “elite” ivy academies that so disproportionately serve as the training ground for the judiciary. Also, not to be forgotten is the acceptance of the modern ABA which is nothing more than a medieval guild for moden pharisees.
        That having been said, the tattered ropes of the Constitution would have been severed decades ago if the SCOTUS had been the exclusive domain of the types of litmus-tested leftists that were advanced starting with Roosevelt, but absolutely required by Clinton, Obama and any foreseeable Democrat President.

        • smokes

          True Pius. The Georgetown cocktail circuit seems to move them farther to the Left, too. Must be the bitters in the martinis. Did you notice that the Leftist candidates never move to the right, while those purporting to be “moderate” swing Leftist?

          Electing Leftist presidents is dangerous for the nation when it comes to this judicial dictatorship.

        • Michael Paterson-Seymour

          If one looks back to an earlier period, in Jones v Opelika [319 US 584 (1942)] one finds Roberts J complaining that, in some six years, the court had fourteen times reversed one or more of its earlier decisions, many of them recent. He observed that such decisions tended “to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject.”

          As one particularly egregious example, a case, Minersville School District v Gobitis [310 US 586 (1940)] that was decided by a majority of eight to one, was overruled three years later in West Virginia School Board of Education v Barnette [319 US 624 (1943)] by a majority of six to three. Of the six, three of the Justices (Black, Douglas & Murphy JJ) had changed their minds, two (Jackson & Ritledge JJ) were new appointments and one was the former lone dissident (Stone CJ, formerly Stone J)

          • Adam__Baum

            Stare Decisis may assure continuity and order, it doesn’t assure justice.

            • Michael Paterson-Seymour

              Minersville was the Jehovah’s Witnesses case – saluting the flag &c

              Regardless of the merits, even in Civil Law countries, like France that do not accept the doctrine of binding precedent, there is a convention that, once the highest court has settled the law, it is up to the legislature to change it, if it sees fit. Otherwise judicial decisions become merely capricious and no one can organize their affairs in reliance on them.

      • Martial Artist

        I concur. To a great extent we have come to an impasse which effectively ensures a two-party state. And the choice of parties has increasingly come to be between the Evil Stupid Party and the Stupid Evil Party.
        Pax et bonum,
        Keith Töpfer

  • plb5678

    Seems atheists spend a lot of time thinking and worrying about God. At least God is on theoir mind and evebtually they may see the Light.
    Our rights have been given to us by God and our country was founded as such as the Declaration of Independence states. No judge can take away our conscience. Time to take it to the streets.

  • john

    The growing number of these “forced to participate in gay “marriage”” cases makes me think it’s time to develop our “wise as serpents” skills. Perhaps announcing (or posting via social media) that the profits from these contracts will be donated to the National Organization for Marriage? (Imagine how well “Don and Steve helped defend marriage by donating $100 to stop gay “marriage” in New Mexico!” might go over!) Maybe Including relevant Bible verses on company stationery or contract verbiage? (maybe a disclaimer: “I acknowledge that by hiring this person to photograph my event, he is not responsible for my violating God’s law or the proper ordering of families according to sound reason and natural law, //signed// “husband: _____” and “wife ____”) How about watermarks on photographic proofs? Those are company property anyway, right? (Imagine “Hugenin Photography: Male and Female He Created Them” or “Hugenin Memories: Be Fruitful and Multiply” in faux script watermarks across all the proofs). You might also be preventing piracy through virtuous messaging! Time to get wise!

    • Uuncle Max


      • jenny

        excellent !!!

    • Sean

      Your suggestions are creative. The New Mexico court determined, “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.” Pleas for freedom of conscience don’t translate into freedom to break laws. We can all choose to break the law, but then we need to be prepared to accept the consequences The Huegenins could have found many ways to decline this opportunity without breaking the law.

      • Adam__Baum

        “Pleas for freedom of conscience don’t translate into freedom to break laws. ”

        That’s right. German Jews understood this completely.

      • Pay

        Unjust laws are not true laws.

      • msmischief

        Just like there was no right to break the segregation laws.

    • Adam__Baum

      Upon further thought, I remove my thumbs up. This might work in the very short run, but it also requires the business owner to make political sentiments public, to invite retaliation. How long do you think it would be before the local LGBT “community” assembles at their place of business, lobbies for some municipal ordinance that restricts the nature of signage, has the local TV station do a story about a “controversial” business, protests at the local chamber of commerce in favor of their expulsion or something else?

      • Proteios

        Good point. It would take courage and being “openly Christian” .
        You can’t make someone do that, but as for me, I am done being ‘in the closet’. Because that’s where they are putting us. But when we “come out” we’re unlikely to get all this glowing support, politicians and Supreme Court justices applauding us. No. We will be forced back in the closet.

    • jenny

      excellent ideas !!!

    • Arthur

      Sir i could not agree more with you if you cant beat them join them. I come from the UK and there was a case where a Christian couple who owned a Bed and Breakfast business refused 2 Homosexuals a bed for the night .Now it wasnt as if there was -No Room at The Inn-the owners of the B.B were set up there were plenty of other B.B. who would have welcomed the 2 Homosexuals with open arms. Now the Christian couple refused them a room they were taken to court and told -wait for it -To pay the 2 Homosexual men 3600pounds in compensation FOR HURTING THEIR FEELINGS -Now as you say its time to fight back .The next time Homosexuals come knocking for a bed for the night Christian B.B owners should get together and charge 3600pounds for a nights stay.If they then are satisfied by Homosexuals staying in their B,B, they can give them a refund before they leave if not tough luck. If its good enough for the Goose so to speak. If this sounds like bigotry your definately right.

    • zcastaux

      No, this is not a solution. You KNOW it’s not a solution. I mean, it sounds like wiping out millions of residents of a region via some genocide, and then, well, helping a few survivors to join in a ‘reconciliation’ process. Does anybody really do that? (Check some history, to find out.) You are not seriously suggesting that the photographers take those unhappy photos and then write a BIble verse on them ….. NO. You’re not serious at all.

  • Pay

    “The homosexuals in question cannot tolerate dissent. If even one person is allowed to decline to manifest a tacit approval of sodomy, that is a punishable offense. You must be suborned or silenced.”


    Very true. They will not tolerate anyone not affirming their deviant desires or actions because they think if all will approve it will soothe their consciences. It never does.

    • Adam__Baum

      If something is intrinsically disordered, it will be questioned. Once questioned, the defect will be exposed. Therefore, for those who wish to advance that something, they guard against any and all questions, by whatever means necessary including suppression and violence.

      • Pay

        Right, they want all to keep pretending it is good.

  • roxwyfe

    Absolutely correct! The homomafia is only about “toleration” when everyone else is being forced to tolerate their aberrant beliefs and behaviors. There is no room for the “toleration” of any other point of view in this debate. They act like spoiled brats screaming, I want what I want and I want it NOW and you have to give it to me and you have to like it.

    • Proteios

      Maybe it’s time to ask why they won’t tolerate your values. I think they have their fingers in their ears, but I think the discussion needs to be raised.

  • cestusdei

    From Antigone: Amazing how the issues remain the same over time.

    “Naturally! since Zeus never promulgated such a law, nor will you find that
    Justice, Mistress of the world below , publishes such laws on humankind. I never
    thought your mortal edicts had such force they nullified the laws of heaven…”

    “I did not believe/your proclamation had such power to enable/one who
    will someday die to override/God’s ordinances, unwritten and
    secure./They are not of today and yesterday;/they live forever; none
    knows when first they were./These are the laws whose penalties I would
    not/incur from the gods, through fear of any man’s temper.”

    “With wisdom has someone declared/a word of distinction:/that evil seems
    good to one whose mind/the god leads to ruin,/and but for the briefest
    moment of time/is his life outside of calamity.”

  • Dick Prudlo

    It is not merely the courts, but the many whose conscience’s have been so very bent, thought itself is painful to them. Argument on things that matter will not prevail in today’s zeitgeist. Politics has trumped all things, just take a look at the USCCB whose promenade on the decks of social justice has married them to unlikely partners publicly, and privately who knows for sure anymore?

  • tamsin

    I wonder whether Americans have lost the capacity for rational thought, so feeble are their powers of analogy.

    I wouldn’t say they have lost the capacity for rational thought, I would say that the allegation of racism is like having a gun pointed at your head. It precludes rational thought when you are concerned for your social survival.

    It has been enormously successful analogy, erroneous or not, for the gay lobby, without which they couldn’t have gotten as far as they have.

    It is good to have an alternative analogy at hand; thanks.

    • bdub

      Absolutely, reversing the analogies needs to be key part of waging a counter-offensive to the rhetorical manipulation of the sodomites.

      The analogy isn’t whether you would refuse service to a black man, but rather if a black man would have to make a cake celebrating a KKK lynching or white celebration party. Would a Jew have to take pictures at a neo-nazi reenactment of the holocaust? In another vein, would you force a person to give up their fundamental convictions about the ultimate nature of reality just because they are black? or do you just do this to Christians?

      Everyone knows the equation of homosexuality and being black is a crock, they just need to tricks and tools to articulate it well.

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  • Brian Haines

    Well said – thanks

  • Sygurd Jonfski

    As one of Dickens’ characters succinctly said, “The law is an ass”. He forgot to add that it also has the power of making asses out of those who have a blind respect for it.

  • hombre111

    Thoughtful, as usual, Dr. Esolen. I am with the Hugenins. But one quibble: To witness two men embrace and kiss after exchanging marriage vows is not to witness sodomy. You are assuming that anal intercourse will follow as sure as night follows sunset, but many gay couples find that as offensive as you do. Unless you interviewed them about their sexual behavior, you really do not know how their marriage will unfold.

    • ColdStanding

      “yes, but I did not inhale.”

    • Adam__Baum

      Who cares, to quote a particularly shrill politician “what difference does it make”?

      It’s still fascism.

      Are we to believe that people who tell us that their sexual attraction is so insuperable as to require a re-ordering of social laws and norms will not result in some sort of sexual activity?

      I object to what the author has defined as pseudonogamy because it mocks God and don’t care what the entrants do is immaterial.

      We have no idea how this placy out, but perhaps someday your successors will find the state outlawing the Eucharist because Sharia forbids the consumption of vineous spirits.

  • Bono95

    Hats off to this courageous couple!

  • Bono95

    “One way to blunt your conscience is to dragoon as many others as possible into agreeing with you and affirming your actions. The homosexuals in question cannot tolerate dissent. If even 1 person is allowed to disagree, it is a punishable offense.”

    Does all this remind anyone else of the time when that king wanted to get rid of his queen of 20+ years so he could hook up with one of her ladies-in-waiting and everyone went along with it except 1 old bishop, the chancellor of the realm, and a handful of monks, and when these wouldn’t give in to the pressure they were all locked up in dusty dungeons and later bereft of their heads (all of them) and of their arms, legs, and guts (the monks, and very nearly the bishop and by that time former chancellor)? And the king had to get their approval or else silence them in order to salve his own troubled conscience and to ensure that everyone would agree with him?

  • bathmaster

    The revolution is coming soon and these progressives will be put to rest.

  • bathmaster

    This is the man who has some good things to help us get there. Obama and the libs most likely have him on a terror list??? Here is the link, pass it around. lets get it going viral.

  • JefZeph

    And yet, to hang a “No Shirt, No Shoes, No Service” sign on your front door is still fine and dandy. Go figure.

    • Adam__Baum

      The shoeless and shirtless haven’t organized.

      • Bono95

        Well, one could argue that the shirtless and shoeless are unorganized by definition. :-/

  • Paul McGuire

    How do you decide which sorts of businesses are free to refuse to serve same-sex couples and which aren’t? If you are suggesting that wedding photography is not a public accommodation and thus anti-discrimination laws should not apply to them, where do you draw the line? Would you support a hotel or resort that wanted to refuse to let a same-sex couple share a room (married or not) because of the owner’s religious beliefs? What about a cab driver who has a problem with same-sex couples sharing a ride in his cab?

    • Art Deco

      Why not restore freedom of contract? All businesses should be at liberty.

    • Adam__Baum

      How do you decide which sorts of businesses are free to refuse to serve same-sex couples and which aren’t?
      You don’t. Leave me alone to conduct my business as I see fit.

      • staremund38

        unfortunately for you there is a law that makes it clear what discrimination means: it prohibits “any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, genderidentity, spousal affiliation or physical or mental handicap.”

        • Art Deco

          And we understand perfectly well the statute is asinine and a tool for the worlds asses to harass decent people going about their business making a living. So what’s your point?

          • staremund38

            when you run a business, accommodations must be made to existing legal statutes, restrictions, licenses, standards, taxes et al. Should all of these be removed as well so you can “conduct business as you see fit”?

            • Ty

              The law should be amended if it is absurd.

    • Guest

      What do you think of restaurants that ban strollers, or even the children themselves?

  • Proteios

    Bear in mind, these decisions are based on the acts of an infinitesimally small number of cases and decided on by just as few people in positions of authority. The extremist perspectives indoctrinated through atheists or leftists or whoever, represent a tiny minority enforcing their doctrines on all of us. I’m not sure people are to be blamed for their stupidity. People are to be blamed for their complacency. Silence in these matters is a dangerous action as it permits these well funded groups of so few people to succeed in pushing a clearly wrong agenda on us all. I fact, that is the only way anti Christian sentiment in a blatantly dominantly Christian nation could ever occur. Imagine if we all stopped one day and said no more! They would rebel. React. Maybe get the national guard out. Or worse. Try to ignore us like they do of so many tragedies or “local stories”. But if persistent, at some point, they would have to deal with us. Bend to the majority and not as toeffler said, well financed minority and special interests. But then again..I have a mortgage, so nevermind,

  • Danielck

    Homosexuality is defined by sex. Period. It cannot be defined by marriage. It cannot be defined by children. And it will never be defined by love. It is defined the moment two folks of the same sex engage in perverted sex. Were sex not involved in the relationship it could not be homo-sexual. Homosexuality is defined by sex. Heterosexuality is defined by God.

  • Nerd

    Problem one: You argue this is a liberal mindset, which simply isn’t true. This is a deeply engrained, mainstream mindset. Until we recognize this, we can’t address it effectively. This isn’t liberal anymore. This is the new normal.

    Problem 2: Recognizing the primacy of conscience requires an understanding of GOOD and EVIL as definite, objective things. This is simply not accepted. To the average person (or at least, to the average young person) your claims that there is a fundamental difference between serving someone at a restaurant or photographing their wedding wouldn’t make any sense. They would argue that its just your opinion.

    Not that I don’t think you’re RIGHT.

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  • mollysdad

    What these developments prove is that religious freedom – meaning freedom to follow what your conscience tells you to do – is incompatible with freedom to dissent from Christian truths of reason concerning God and morality. If one is decriminalised, the other will be forbidden and repressed.
    Sodomites, back in the closet!

    • staremund38

      then move there

  • James Patton

    I enjoy how “conscience” in this particular article resembles discrimination. I think that is the biggest hurdle when appealing to the “liberal courts”.

    • Adam__Baum

      We discriminate every day. Who we marry, associate with, where we work are all acts of discrimination.

  • jenny

    ..our bodies are made based on a natural law of genders (man and woman)….

    • Adam__Baum

      Jenny, don’t let a good idea get lost. Gender is a construction of language (he, she, him, her). Your body has a sex (male/female).

  • A better analogy: imagine the Hugenins refused to photograph an interracial marriage celebration because they deeply believed that the celebration was immoral. Do you think that freedom of conscience should be legally protected?

    • Pay

      How is that analogous? It does not fit at all. Race has nothing to do with immoral acts.

      A better analogy would be forcing a photog to take pics at a abortion.

      • No one forces a black man to marry a white woman or a white man to marry a black woman. So this isn’t really about anything outside someone’s control. It’s about a choice. Just like the choice a man has to marry another man, or a woman to marry another woman.

        Do you think that the law should protect the freedom of conscience of someone who believes that it is immoral for a black man to marry a white woman or not (and therefore finds taking pictures at their wedding morally wrong)?

        • Art Deco

          Do you think that the law should protect the freedom of conscience of
          someone who believes that it is immoral for a black man to marry a white
          woman or not (and therefore finds taking pictures at their wedding
          morally wrong)?

          There is no justification I am aware of for compelling people to do business when they would rather not. Expenditure on photography is wholly discretionary and there is not the slightest compulsion to use a particular vendor’s services as their might be with a desert gas station. It is called ‘liberty’.

          It’s about a choice. Just like the choice a man has to marry another man, or a woman to marry another woman.

          Filiation creates social architecture, which is a function of community mores and community decisions. The self-governing community is properly at liberty to decide that it grants no formal recognition and studiously ignores homosexual relations (no matter what smug, asinine, and officious lawyers have to say about it).

          • I admire your consistency of thought.

            The self-governing community is properly at liberty to decide that it grants no formal recognition… [to] homosexual relations

            The self-governing community here, called the United Kingdom, has happily recognized gay marriage. Different societies are free to recognize or ignore or suppress gay marriage. Those who suppress or ignore gay marriage will face considerable social pressure from the civilized world in the near future.

  • michael susce

    the article is based on a false premise. Appealing to conscience is meaningless. The argument should be based on the morality or immorality of the homosexual act. If the act is deemed moral, then appeal to conscience is insufficient. I am beginning to sense a trend away from the immorality of the act itself toward allowing us to BELIEVE the act is immoral. Of course, the result is inevitable. Now, if one believes the act is immoral, he is immoral. Just like the white man who hates the black man because he is black is immoral and is abhorred so will we be. An appeal by the white man to conscience is invalid.
    An excerpt from Butler Lives of the Saints. “The prisoners taken at Abitina were shackled and sent to Carthage, the residence of the proconsul, and during their journey they sang hymns and psalms to God, praising His name and rendering Him thanks”!!!!!!! “It appears that they all died in prison, either from length of their confinement or from torture and the hardships they had undergone” For what? Certainly not because of their appeal to conscience but their rejection of immorality which they were forced to accept.
    God bless

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  • Cincinnatus1775

    Nebuchadnezzar demanded all bow down to the idol he made. Three would not and were thrown into the fiery furnace. God preserved them and Nebuchadnezzar’s heart was changed. We will have to undergo the same fiery trial, but in court. Pray for the Hugenins and lend financial support to organizations like the Thomas More Law Center ( or the Becket Fund (

  • hihal

    Has Anthony Esolen ever heard of the “strawman” fallacy?

    -“Suppose the Hugenins were asked to shoot photographs at a party thrown to celebrate a friend’s divorce … or celebration of a porn magazine’s jubilee. Would they be required by law to participate in that?” No they wouldn’t because the New Mexico law is very clear on what constitutes discrimination: it is unlawful for “any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap.”

    – “Conscience-forcers will argue that the Hugenins are like a racist restaurateur who turns away a black customer.” Why not instead imagine a wedding photographer who refused to photograph a mixed race wedding for moral reasons, or a Baptist photographer who refused to photograph a Catholic wedding for religious reasons. These are all examples of discrimination.

    -“Suppose a Kleagle from the Ku Klux Klan shows up at your bakery and wishes to order a cake with a flagrantly racist decoration—are you required to make that cake?” No you are not unless you decide not to make the cake because the KKK members are white. This is really very simple.

    You might think the photography company has valid moral reasons for discriminating against the same sex couple, but you cannot deny the fact that it is still discrimination. There is a law against this in New Mexico, and that’s all there is to it. This is not about “conscience freedoms.” No one is telling the people who run the photography business that they personally have to accept gay marriage. But they are running a business, and when you run a business individual freedoms of conscience are sometimes not considered. Otherwise, would you think it acceptable for a hotel owner to eject a gay couple (mixed race couple, Irish couple, et al) from staying at his hotel for similar moral reasons, or a restaurant owner to forbid a gay couple from showing signs of affection. You might personally take issue with this, but a business showing such prejudice makes it discrimination.

    • Art Deco

      Anthony Esolen is not making use of strawmen and one disagreeable aspect of putting your opinions out there is that you have to contend with people who are obtuse. These cases point up the injustices of ‘anti-discrimination law’. There should be no such law in New Mexico.

      • hihal

        He doesn’t even mention the anti-discrimination law in New Mexico, and I seriously doubt he read the unanimous Supreme Court opinion which is linked in the WSJ article he cites. Otherwise he wouldn’t have come up with such unintelligent and easily refuted hypotheticals.

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  • michelle

    perhaps billboards with graphic facts about gay bowel syndrome. i mean really has it come to this? it has the scent of evil to like nothing else.