After a storm of protest from supporters of gay rights and the business community, Indiana and Arkansas have revised their Religious Freedom Restoration Acts. But it still isnt clear whether bakers, caterers and photographers that have religious objections to same-sex weddings can withhold their services from such celebrations.

Thetweaked Indiana law says businesses may not deny service on the basis of sexual orientation or gender identity, but some caterers, photographers andpizza purveyors insist they are happy to serve gays and lesbians and same-sex couples. They draw the line at facilitating/endorsing a ceremony they consider sacrilegious. (If a gay couple wants pizza for a New Years Eve party, no problem.)

Is refusing to bake or embellish a wedding cake for a same-sex ceremony discrimination on the basis of sexual orientation, or simply a refusal to participate in -- and endorse the message of -- an activity? And is requiring someone to sell cakes or pizzas to a same-sex wedding really a "substantial burden" on their freeexercise of religion? We may find out as the Indiana law and others are tested in court.

Meanwhile, its worth noting that freedom of religion isnt the only legal weapon that potentially can be wielded by people in the wedding business who dont want to be complicit in same-sex nuptials.

Its widely believed that the political genesis of the Indiana RFRA was concern that anti-gay-marriage merchants would suffer the fate of Elaine Huguenin, a wedding photographer in New Mexico who didnt want to take pictures of a female couples commitment ceremony. The couple complained that Huguenins refusal violated a state law against discrimination on the basis of sexual orientation, and the states Human Rights Commission andSupreme Court agreed.

Huguenin tried several arguments. She said she wasnt really discriminating on the basis of sexual orientation, but the court rejected the distinction she tried to draw between sexual orientation and conduct so closely correlated with sexual orientation.

She also cited New Mexicos RFRA, but the court said that the religious-freedom law applied to only situations in which the government was a party not to disputes between private individuals. (Not very persuasively, the court said that the legislature and a court were not government agencies.) Interestingly, the Indiana RFRA made itclear that it would apply regardless of whether the state or any other governmental entity is a party to the proceeding.

So much for Huguenins religious-freedom arguments. But she made another claim based not on religious freedom but on another right enshrined in the 1st Amendment: the freedom of speech. As the New Mexico Supreme Court put it: Elane Photography [the name of Huguenins business] concludes that by requiring it to photograph same-sex weddings on the same basis that it photographs opposite-sex weddings, the NMHRA unconstitutionally compels it to create and engage in expression that sends a positive message about same-sex marriage not shared by its owner.

The New Mexico Supreme Court wasnt impressed by this argument, and neither, apparently, was the U.S. Supreme Court, whichdeclined last year to hear Huguenins appeal. But the issue could arise again.

The free-speech argument is arguably stronger than the religious-freedom claim. For one thing, its rooted not in a statute but in the 1st Amendment, which the Supreme Court in other cases has interpreted to prohibit compelled speech. (Perhaps the most famous example is the 1943ruling in which the court held that a state couldnt require schoolchildren to salute the American flag.)

Read more here:

Weddings, religion and free speech