County Fair

Fox News' Disastrous Coverage Of LGBT Discrimination Case

November 13, 2013 12:13 am ET by Emily Arrowood

Fox News' Shannon Bream and Megyn Kelly continued the network's general defense of anti-gay discrimination in separate reports on a New Mexico Supreme Court ruling concerning a photographer who was sued after refusing to photograph a same-sex commitment ceremony. Bream omitted critical context from the court's decision while Kelly pondered its slippery-slope implications, tactics in keeping with Fox's history of inaccurate and offensive reporting on the case.

In August, the New Mexico Supreme Court ruled unanimously that Elane Huguenin -- owner of Elane Photography -- violated New Mexico's anti-discrimination law when she refused to photograph the commitment ceremony of a same-sex couple. Huguenin filed an appeal of the decision to the U.S. Supreme Court last week.

In the eyes of Special Report's Bret Baier, the central issue for the Court to consider in the case is "whether you must check your religious values at the door when you open a business," as he stated on the November 12 program. He then aired a package regarding the case by correspondent Shannon Bream, who did not explain the constitutional basis for the court's ruling, but instead cited only the concurring opinion's general reference to "the legal rights" of the same-sex couple.

The segment heavily featured the Huguenins' attorney, Alliance Defending Freedom (ADF) senior counsel Jordan Lorence. Lorence accused the court of dictating that "once you agree to enter the workplace, the marketplace, you surrender all your constitutional rights."

Despite Fox's suggestion otherwise, this case does not concern religious freedom. The court held that because Elane Photography chooses to offer services to the public, it is engaged in commercial conduct that can be regulated by the state, and so it must comply with the state's Human Rights Act. Just as these businesses may not discriminate based on race or gender, it is likewise a violation to discriminate based on sexual orientation:  

We conclude that a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the NMHRA and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.


The purpose of the NMHRA is to ensure that businesses offering services to the general public do not discriminate against protected classes of people, and the United States Supreme Court has made it clear that the First Amendment permits such regulation by state. Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or 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 anti-discrimination laws.

The Elane Photography case is a frequent target of Bream's, who went so far as to suggest businesses have a right to discriminate against gay people during a previous report on the suit. She wondered if the lawsuit was secretly an effort to advance the legalization of same-sex marriage and said she was "confused" by the state supreme court's claim that Elane Photography had violated the couple's "constitutionally protected rights." Bream is a trained attorney.

Fox host Megyn Kelly, another lawyer by training, invited Lorence onto her program, The Kelly File, later in the evening where she wondered whether the court's ruling might require Catholic Churches to perform same-sex weddings as well:

KELLY: How far could this go? I mean, if your clients lose, if the Supreme Court doesn't take the case and the lower court decision stands, then how far could this go? I mean, could we ultimately see a lawsuit by a gay couple that won't, you know, see a wedding service performed in a Catholic Church?

Lorence responded, "Yeah, or I think you could have the liberal photographers sued by Westboro Baptist when he turns down an opportunity to photograph there."

Kelly's fearmongering is laughable -- churches are not businesses and so would only be required  to host same sex-weddings if they were renting out their building to the public for a profit, which would constitute a public business transaction subject to state regulation.

These appearances are not Lorence's first time on the network. He has repeatedly joinied Bream to push his views on the Elane Photography case. His organization, the ADF, is engaged internationally in efforts to criminalize homosexuality -- a fact that Fox News has conveniently failed to acknowledge.

Fox News is a safe harbor for anti-LGBT views -- the network's ongoing coverage of these issues is marked by distortions, fearmongering, and bigotry. Bream is often Fox's go-to proponent of conservative efforts to discriminate against LGBT people, but Kelly's remarks tonight could indicate she's giving Bream a run for her money.   


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