Sarvis' Views on Religious Liberties Divert From Gov. Johnson But Parallel Cato

It well known that Virginia Libertarian gubernatorial nominee Robert Sarvis wants same sex marriage to be legal in the Commonwealth like one of his opponents, Democrat Terry McAuliffe. Sarvis’ campaign theme is “Virginia – Open minded and Open for Business.” However, Sarvis rarely if ever has discussed the resulting debate from legalizing same-sex marriage regarding religious liberties.

The New Mexico Supreme Court, for example, recently ruled  in August that wedding photographers could not refuse shooting same sex couples’ marriage ceremonies :

“When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the [New Mexico Human Rights Act, or NMHRA] in the same way as if it had refused to photograph a wedding between people of different races,” the court said in a unanimous verdict.

The court rejected each of photographer’s Elaine Huguenin’s arguments, particularly one in which Huguenin had argued that her refusal did not discriminate against same-sex customers. Huguenin had argued that she would happily photograph gay customers, but not in a context that seemed to endorse same-sex marriage. Likewise, she said, she wouldn’t shoot heterosexuals in a context that endorsed same-sex marriage.

The court rejected any legal differentiation between homosexuality and homosexual conduct.

The CATO Institute, a Washington D.C. based Libertarian think tank, weighed in on the case and sided with Huguenin via a friend of the court brief.  :

Our brief explains that photography is an art form protected by the First Amendment because clients seek out the photographer’s method of staging, posing, lighting, and editing.  Photography is thus a form of expression subject to the First Amendment’s protection, unlike many other wedding-related businesses (e.g., caterers, hotels, limousine drivers).

The U.S. Supreme Court has already ruled in Wooly v. Maynard that photography is protected speech–even if it’s not political and even if the photos are used for commercial value–and that speech compulsions (forcing people to speak) are just as unconstitutional as speech restrictions.  The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all.”  Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other photographers in the same area.

“I agree with [CATO]. I think religious liberty is very important. We should protect it and I’m not trying to tell religious institutions at all what marriages they should and shouldn’t do. Religious institutions can choose that for themselves,” Sarvis told Breitbart News on Saturday. “My view is that, solely to respect to the government being in the business of granting legal privileges on the basis of a personal relationship, the government shouldn’t be in that business. It should be done on the basis of equality and those privileges should be available to same sex couples on a equal basis.”

Former New Mexico Republican governor Gary Johnson, one of Sarvis’ endorsers admitted he usually never “crosses ways” with Cato, however,he thinks the libertarian thin tank is wrong. Johnson told Breitbart News on Saturday, “I happen to believe that marriage equality is institutionally guaranteed and that it is a federal issue.”

Johnson explained, “So if that were established as a federal issue and marriage equality is a constitutional issue, then I think Cato’s case probably goes out the door, because Cato for one second, I don’t think, would say they would have the right to deny blacks the right to marriage photographs. That would in fact be discrimination and acting against the Constitution. Maybe I’m wrong.”  

He added, “I know Cato can intellectually get into the weeds. I mean anybody can get intellectually into the weeds.” 

Sarvis, however, said, “I’m only interested in making sure the state is not discriminating. I’m not advocating for interfering in people’s associational rights or religious rights.” He explained, “The point is if the state is involved in something then it has to do something with business but the state should not be telling businesses who they should be doing business with and things like that–and certainly not religious institutions.”

Ed Crane, founder and former president of the Cato Institute, recently donated $300,000 in PAC money to Sarvis’ campaign.  Cato also criticized liberal politicians for being “intolerant” and a bunch of “bully boys” for abusing their power against the popular restaurant Chick fil A, when the president of the food chain said he supported “the biblical definition of the family unit.”