Russell and Duenes

Think the Commerce Clause Doesn’t Matter to You?

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It matters to a personal photographer friend of mine, and it matters to the folks over at Elane Photography, who have just been told that if they want to continue with their photography business, they must, by force of law, photograph gay wedding ceremonies, their Christian convictions be damned. Plenty of great articles have been written about the the New Mexico Supreme Court’s high-handed and profoundly wrongheaded decision (see here, here, and here), so I’ll not add to them here. What I will say is, the Commerce Clause of our Constitution is not some ethereal clap-trap that has nothing to do with your individual lives. It has everything to do with you, and this is the kind of thing that stokes my desire to get back into teaching at some point, equipped with a knowledge of the law; so that Christians can understand and offer reasoned and principled arguments against our current legal and social chicanery. Thus, let me explain a bit.

Back in the 1960s, the Supreme Court was looking for a way to compel private businesses to serve African-Americans. Desegregation is one of the worthiest goals our nation has ever pursued, and I believe that it primarily started to come about because of the moral convictions of righteous people voting with their feet, rather than by force of law. But good-faith arguments can be made on both sides, and that’s not my point here. My point is that the courts knew that they could not compel private businesses to serve African-Americans under the 14th Amendment because that Amendment says only that people have a right to the equal protection of the laws and the privileges and immunities of citizenship when it comes to governmental activity, not private activity. So, what to do?

Well, as one of my professors says, “Judges are lawyers, and when they see where they want to go, you can be sure they’re going to get there.” Hence, they turned to the Commerce Clause. In Heart of Atlanta Hotel v. U.S., to use but one example, the hotel did not want to serve African-Americans, and they argued that they did not have to serve anyone in particular because they were a private business. Therefore, they reserved the right to refuse people as they saw fit. The Court replied that, even though the hotel was private, it was engaging in interstate commerce because it had people staying there who came across state lines. Thus, because Congress can regulate commerce, they can regulate the hotel’s business. Voila! The principle was established, and now the Court’s doctrine is that virtually all economic activity encompasses interstate commerce (down to whether you can eat the wheat you grow on your own farm). Is this a correct reading of the Commerce Clause? Not in my opinion, not even close; and I think there were other, better ways to combat segregation than twisting the Constitution. But that’s where we are.

So, now of course this improper interpretation of the Commerce Clause is being used to bludgeon a photographer into photographing gay ceremonies, something which violates the photographer’s Christian convictions. At this point, most people would say, “Well, what if this photographer didn’t want to photograph Mexicans? Would we think that’s OK?” No, I would think it’s morally abominable, and I imagine that Elane Photography thinks similarly. But there’s a crucial distinction between not wanting to serve a particular racial group and not wanting to serve those who practice homosexual behavior.

Racial and ethnic make-up and homosexuality are demonstrably different things, and this is the crucial point Christians and others need to make winsomely and often. It is demonstrably false to equate race and any kind of sexual behavior or orientation. For one’s racial make-up is never a choice, and all sexual behavior is always a choice. This is the nature of reality. It matters not that our current cultural voices deny it. The eternal, unchanging, glorious Word of God contradicts them, and so does experience. God’s Word makes it clear always and everywhere that sexual behavior is a moral issue, not an issue of genetics or predispositions or orientations. We all have inclinations and dispositions, genetic or not, toward doing a good many things that God says are wrong. Yet God never allows this as a justification for sin. He never allows us to say, “I was born that way.” We were all born in rebellion against God, with all kinds of wrong desires and orientations. The gospel is about repenting of these, turning to Christ for forgiveness and freedom, and letting Him do His gracious work in changing our desires toward beautiful, righteous ones. And sexual faithfulness and purity within marriage is beautiful, both in our souls and in the world. Experience too shows, and legions of witnesses could be produced who will testify that, though they once engaged headlong in homosexual behavior, they no longer do so. Their sexuality is something over which Jesus is Lord, and over which, by His power, they can make choices.

So for judges and others to claim that homosexual behavior is no different than racial make-up, and therefore, private businesses must be compelled to serve gays in all the ways they desire to be served, is simply wrong. It’s constitutionally wrong, legally unjust, and philosophically wrongheaded. No one ought to be compelled, by force of law, to do business in such a way that celebrates sin, particularly while being lectured that this is the “price of citizenship.” This is the talk of tyranny and demagoguery. We should all be awakened from our indifferent slumber by such chilling pronouncements.

This issue, by the way, points up the need for Christians to give their children an explicitly Christian education. Wringing our hands will not address the need of the hour. Rootedness in the gospel, the gospel that proclaims that Jesus is Lord over every inch of existence, is what is needed. Our children need to learn these things in school, have them reinforced throughout all of the curriculum, and to learn how to speak about them in a winsome and wise manner. None of this will happen in the public schools.



Written by Michael Duenes

August 24, 2013 at 12:08 pm

Posted in Uncategorized

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