New Mexico Court Says Photographers Are Legally Required To Photograph Same-Sex Commitment Ceremonies

06.18.2012, 12:55 PM

I wanted to comment briefly on Elane Photography vs Willock.

The case is pretty simple. Vanessa Willock emailed Elane Photography asking if they’d photograph her and her partner’s same-sex commitment ceremony (New Mexico law doesn’t recognize gay marriages). Elaine Huguenin emailed back saying “we do not photograph same-sex weddings, but again, thanks for checking out our site! Have a great day.”

Vanessa Willock did not, it seems safe to infer, have a great day. In her later testimony, Willock reported feeling shocked, angered, saddened, and fearful by Huguenin’s response. She couldn’t bring herself to contact other photographers, because she was anxious that she’d get a similar response. (She did eventually hire a photographer recommended to her by a friend.)

Willock eventually complained to the New Mexico Human Rights Commission, asking for an injunction ordering Elane Photography to stop discriminating against same-sex ceremonies. Willock refused to ask for any “actual damages,” but asked for and was awarded her attorney’s fees, which were about $6000. (You can read the New Mexico Human Rights Commission’s ruling here, in pdf form.)

* * *

A few points about this case.

1) I’ve often seen Elane Photography cited as an example of why we should oppose marriage equality. That argument makes no sense. New Mexico doesn’t have marriage equality; therefore, lack of marriage equality will not prevent legal conflicts of this sort.

2) I agree with Eugene Volokh, who argues that the decision should be overturned on First Amendment grounds: “It seems to me that the right to be free from compelled speech includes the right not to create First-Amendment-protected expression — photographs, paintings, songs, press releases, or what have you — that you disagree with, even if no-one would perceive you as endorsing that expression.”

3) It’s wrong for Ms. Huguenin to discriminate against same-sex ceremonies, but this isn’t a wrong that should have a legal remedy. I’d say the same if Ms. Huguenin was discriminating against Jewish weddings, mixed-race weddings, or weddings of fat people. Artists, even commercial artists, have a legal right to decide what to say (or not say). The proper remedy for Ms. Willock would have been to let her friends and family know that they shouldn’t hire Elane Photography and why.

4) Those in favor of this decision tend to invoke a slippery-slope argument: “if photographers are allowed to refuse to photograph same-sex ceremonies, then we have to allow hotel owners to refuse service to gay couples, doctors to refuse to treat gay patients,” etc. This argument assumes, mistakenly, that it’s not possible for the law to make some sensible distinctions in this area. For example, most state anti-discrimination laws define “public accommodation” more narrowly than New Mexico’s law does, and this hasn’t led to any of the predicted “slippery slope” effects.


43 Responses to “New Mexico Court Says Photographers Are Legally Required To Photograph Same-Sex Commitment Ceremonies”

  1. Jeffrey says:

    I wouldn’t be so quick to assume this is a First Amendment issue. Public accommodation laws were created to counter Jim Crow-era laws that left consumers unsure of when (or if) they would be able to have services provided by business owners. Not being able to use a dress shop or photographer is as much an act of discrimination as a hotel.

    The greater concern is that the use of a religious-based First Amendment challenge, suggesting that a business owner who is a believer is free to violate public policy of the state by pointing to a their “conscience.” That’s the remedy that some religious groups are looking for and that’s where the is a real danger when it comes to undermining these public accommodation laws.

  2. nobody.really says:

    I largely share Barry’s view. But I squirm: “Oh, we artists are too precious to be burdened by non-discrimination laws. See, we’re just more special than you other people….”

    Honestly, which is more burdensome to your autonomy: Being compelled to photograph a gay couple, or being compelled to rent the upstairs apartment to them? Which act is more intrusive on your right not to associate? Which act is more suggestive of endorsement?

    I don’t want to discount the work of artists. I also don’t want to discount the work of landlords. Or chefs. Or store owners.

    It is a sloped argument – but perhaps not all that slippery. Ultimately I suspect we have adopted civil rights laws that intrude upon some people’s autonomy not because those people’s work is so different, but because the harm of the discrimination is so great. We bar discrimination by employers against employees, but not by employees against employers, because the harm of discrimination by employers has been so widely recognized, whereas the harm of discrimination by employees has not. It isn’t a principled distinction; it’s a practical one.

    Thus, I’m not persuaded of the need to compel photographers to be subject to non-discrimination laws simply because I’m not persuaded that the harm is that great. To be blunt, photographers aren’t that important. But if I felt differently about photographers, then I’d want the nondiscrimination laws to apply – autonomy issues be damned.

  3. La Lubu says:

    I have to disagree with you, Barry. Wedding photographers aren’t being commissioned to do First Amendment pieces for their clients; they’re hired to perform a skilled service—in exactly the same way a chauffeur, a caterer, baker, florist, dressmaker, tailor, dry cleaner, bartender or any other skilled labor typically hired for a wedding is. I’m also not too keen on the idea of folks who are discriminated against being under some ethical obligation to avoid legal action. If you’re marginalized enough, it’s probably your only effective course of action.

  4. they’re hired to perform a skilled service—in exactly the same way a chauffeur, a caterer, baker, florist, dressmaker, tailor, dry cleaner, bartender or any other skilled labor typically hired for a wedding is.

    You’re trying to handwave the problem away here, but you don’t provide a single argument to support the view that photography is not an expressive act protected by the first amendment. Just saying that there’s no difference between a chauffeur and a photographer, doesn’t make it so.

    I’m a commercial illustrator for part of my living. That’s exactly the same thing as a wedding photographer — people pay me to provide my artistic skills to their projects.

    Suppose I’m in a state with a public accommodations law against discriminating against religious views, and a Church wants to hire me to draw the cover of their program. I don’t want to do it, because I’m an atheist and (let’s say, for the sake of the example) I prefer not to take Churches as clients. Should the Church be able to sue me?

  5. Comrade Svilova says:

    I guess I don’t understand why people who don’t want to work for a same sex couple’s ceremony don’t just say ‘I’m booked up that day.’ Why is it necessary to inform a potential client that you are anti same sex relationships? It’s rude and unnecessary.

  6. La Lubu says:

    Just saying that there’s no difference between a chauffeur and a photographer, doesn’t make it so.

    I’m not making a blanket statement about all photography, just saying that in the case of wedding photography, people aren’t hiring for creativity, but technical skill. The subjects are already chosen, the settings are already chosen, the costumes and makeup are already chosen and performed by others—what those hiring a wedding photographer want is someone with the technical skill to insure that the photos are clear in all sorts of lighting. They want to be able to recognize their friends and relatives when they look at the album/DVD years later. That’s what I mean by it isn’t a first amendment piece; it’s not a concept piece by the photographer. The work is more akin to, say, what I do for a living (“I want the light there, I want the receptacle over there“).

    Look…legislation of this nature is part of how the cultural landscape (and thus minds) are changed. I like nobodyreally’s argument that the fabric of society is more torn apart by discrimination against minorities than by imposing on those who host a public business to actually serve the public.

    I understand your position, Barry. I appreciate the fact that Bruce Springsteen and John Mellencamp refuse to allow their music to be co-opted by politicians whose positions are the polar opposite of their own. But I do think there needs to be a crystal-clear line drawn when it comes to creative exemption. Not just “first amendment”, because otherwise a newspaper (first amendment entity) could refuse to publish advertisements for a business that was owned by someone of the “wrong” race, ethnicity, sex, etc. (under the guise of, “well, they can always start their own newspaper!”). In that case, the imposition on the newspaper publisher is minimal in comparison to the impact on the minority business owner who is shut out of one of the primary means for advertising in his or her community.

    Part of why it’s even possible to change minds about things like sexual orientation is because the civil rights movement paved the way with legislation abolishing Jim Crow. It got more people questioning what “public space” and “private space” are, and brought more of the full citizenry into public space. Public space isn’t just “well, some of the public.” I see this case as doing the same thing. I think discrimination is something that is only effectively fought against on large fronts, not the smaller fronts of just telling friends and family to avoid doing business with a discriminatory business owner on the local scale. That’s a proven ineffective strategy in areas where the discrimination is heavy, and resentment of uppity citizens claiming full rights is even heavier.

  7. JeffreyRO5 says:

    If there were a more practical reason for not providing services to same-sex couples than merely personal disapproval, then maybe it would be easier to support such behavior. I can see where a Jewish photographer might refuse to work on Saturday, the Jewish Sabbath. But then his behavior would be based on actual religious belief, not a fake religious belief that appears to claim that “people you don’t approve of must not be served, in the name of your religion.”

    I don’t find much evidence that the Bible forbids providing professional services to “sinners,” and for once, I’d like to hear of a Christian businessperson who refuses to serve or house the couple who had pre-marital sex, or the (wo)man who committed adultery or has gotten divorced, or dishonored his/her parents, or coveted his neighbor’s goat, or used the Lord’s name in vain. Why is it only gay people who get the Bible used as a weapon against them? How hard is it for the Christian photographer to inquire, did you two have sex before the wedding and if so, I can’t help you.

    I do love the irony of the professional maker of graven images, which clearly forbidden in the Bible, complaining about her religious freedom being imperiled! Does it get any more hypocritical?? Well, probably.

  8. JeffreyRO5 says:

    “I appreciate the fact that Bruce Springsteen and John Mellencamp refuse to allow their music to be co-opted by politicians whose positions are the polar opposite of their own.”

    I would hope that we can distinguish between a personal trait (being gay) and a circumstance (a political view), and the difference between discriminating against someone for who s/he is, rather than what s/he believes. Discriminating against someone for who s/he is is offensive.

  9. La Lubu says:

    Exactly, JeffreyRO5. See, I can easily see how Bruce Springsteen or John Mellencamp could say that the use of their lyrics to support ideology that is repugnant to them undermines their creative body of work and could possibly damage their future creative output if they had no choice in how their personal work was used. I can also see how they might change their minds if the politicians in question changed their sociopolitical views and legislative actions.

    I can’t see that in the case of wedding photography—that merely taking shots of a same-sex wedding party could constitute the undermining of their creative work and career. It’s not the equivalent of an atheist being forced to produce religious propaganda, or a rabbi being forced to conduct a wedding for neo-Nazis. There isn’t anything inherent to the act of wedding photography that requires one’s personal viewpoints to enter the equation.

    From my view, Elane Photography rejected these clients simply because of their identity. I don’t think that form of discrimination warrants protection. I don’t think we need to enshrine legal methods of setting up second-class citizenship. If wedding photographers get to opt out of equal access, why not caterers? Cooking is creative. Why not bakers? Dressmakers? Florists? The cover band? All that falls every bit as much under the creative rubric as the photographer.

    Question: why should sexual orientation be exempt from current civil rights laws? That’s what I feel the argument against this case is—that sexual orientation should not be a protected class of identity, unlike race, ethnicity, sex, religion, national origin, creed or color. I disagree strongly with that sentiment.

    This argument assumes, mistakenly, that it’s not possible for the law to make some sensible distinctions in this area.

    Can you give an example of this possibility? And the likelihood of consensus on these “sensible distinctions”? Because I’m a (straight) woman observing a real culture war regarding the availability of birth control right now, despite its almost universal popularity. “Possible” and “probable” are two entirely different things, and our proposed national healthcare exchange is having a really hard time with the sensible distinction of birth control access via insurance. I don’t think you can have an equal access exemption for photographers that couldn’t also include just about everyone else associated with wedding services.

    What equal access laws do is change the culture. I owe my livelihood to equal access laws; full stop. Legislation has been the most life-improving remedy for oppression in my lifetime. Much better than the old-fashioned route of civil war. Talking and trying to change minds over the long term? That’s great, and well worth doing, but it isn’t fast enough. People who are oppressed need remedies now, not in some pie-in-the-sky future. Asking them to continue to take on the burden of oppression so that those doing the oppressing won’t be discomfited is asking too much.

  10. Mont D. Law says:

    You are making it more complicated then it needs to be. If you offer your talent for hire on other peoples projects you should not be able to discriminate. A film editor should not be able refuse Wes Craven or Danial Glover or Martha Coolidge or Mel Gibson because they are gay, black, female and Catholic. Once you offer your talent for sale you offer it to all comers. Springsteen and Mellencamp don’t offer their talent, they offer the product of their talent. Danny Elfman offers his talent.

  11. Part of the issue here is that I may be more libertarian in outlook than many of the people here. I value individual liberty very highly, and think there needs to be a strongly compelling reason for the government to ever take individual liberty away.

    In the case of landlords and hotels, I think there is a strongly compelling reason for anti-discrimination laws to apply. People can die of exposure if they don’t have someplace to live. Less extreme, but similar, ideas can apply to purchasing food and finding employment. It creates an unsustainable burden on quiltbag people’s lives if they always have to drive an hour out of their way to the grocery store that serves them, or if they don’t have equal access to employment markets.

    In cases like those, I think the government’s interest in making sure that lgbt people can survive and participate in the economy on a reasonable basis can and should outweigh the personal liberty of grocers, landlords, etc..

    I don’t think that hiring wedding photographer A rather than some other wedding photographer rises to at all the same level. And the expressive component of taking photographs is much greater than the expressive component of renting an apartment or selling groceries.

    Nobody Really says, “Honestly, which is more burdensome to your autonomy: Being compelled to photograph a gay couple, or being compelled to rent the upstairs apartment to them?” But the First Amendment protects speech, not autonomy.

    I agree with you that the harm of the discrimination is a factor we should consider. But that’s something we should consider along with First Amendment issues, not instead of First Amendment issues.

    * * *

    La Lubu, you and I disagree on if there’s an expressive component to wedding photography.

    With all due respect, I was a wedding coordinator for 14 years, and in that time I worked with hundreds of wedding photographers. They aren’t all interchangeable; the good ones provide photos that not only document that Cousin Sally was there, but also communicate the joy and beauty of the wedding day.

    But that’s besides the point. Everyone has a First Amendment right to choose not only what to say, but to choose what NOT to say. As Volokh points out, the Supreme Court ruled that people in New Hampshire who object to the “live free or die” motto on NH license plates have a Frist Amendment right to cover that motto. Putting a license plate with the state motto on your car is about the least individual, creative act in the world — but people still have the right to not do it.

    Question: why should sexual orientation be exempt from current civil rights laws? That’s what I feel the argument against this case is—that sexual orientation should not be a protected class of identity, unlike race, ethnicity, sex, religion, national origin, creed or color. I disagree strongly with that sentiment.

    With all due respect, I think you didn’t read my original post carefully enough if you think this is my argument. As I said in my post, I think that wedding photographers should have the legal right to refuse to provide services based on race, religion, or pretty much any other factor, no matter how mean-spirited or bigoted. (“I’d say the same if Ms. Huguenin was discriminating against Jewish weddings, mixed-race weddings, or weddings of fat people.”)

    If wedding photographers get to opt out of equal access, why not caterers? Cooking is creative. Why not bakers? Dressmakers? Florists? The cover band?

    If you can made a good case that those folks are being forced to express something they’d rather not express by participating in a same-sex ceremony, then I do think they should have a First Amendment right to opt out.

    In practice, however, this is not a “get out of all anti-discrimination laws free” pass. The Supreme Court has said for many decades that everyone has a right to refrain from speech, but this hasn’t prevented anti-discrimination laws from existing.

    Can you give an example of this possibility?

    For example, New Mexico’s definition of “public accommodation” is broader than Federal law, which defines a public accommodation as those businesses providing food, lodging, gasoline, and entertainment. (I’m oversimplifying here, for the sake of brevity). As I understand it, many states use definitions similar to the Federal definition. That definition is not all-encompassing, but neither has it lead to a slippery slope in which all rights are lost to quiltbag people.

    * * *

    What are you thinking the law is remedying, in this case?

    The actual problem in this case wasn’t that Willock couldn’t get a wedding photographer. She got one. No legal intervention was required in any way.

    The actual problem was that Willock ran into a bigot, and the bigot made Willock feel humiliated, hated and unhappy. I’m genuinely sorry that Willock had that experience. I think I’ve been there myself, and it sucks.

    But that’s not something the government is capable of remedying.

  12. Not just “first amendment”, because otherwise a newspaper (first amendment entity) could refuse to publish advertisements for a business that was owned by someone of the “wrong” race, ethnicity, sex, etc. (under the guise of, “well, they can always start their own newspaper!”). In that case, the imposition on the newspaper publisher is minimal in comparison to the impact on the minority business owner who is shut out of one of the primary means for advertising in his or her community.

    There isn’t any expressive component to refusing an ad based on someone’s race, because there’s no intrinsic connection between the content of an ad and the race of the person paying for the ad. An ad for used tire sales is identical regardless of the race of the person who places the ad.

    On the other hand, newspapers are perfectly within their rights to refuse an ad based on the content of the ad. This is so even if the newspaper was refusing an ad from the NAACP promoting racial tolerance, on the grounds that the newspaper’s owner is a KKK member who opposes racial tolerance. People have a first amendment right to be racists, and to express their racism.

  13. aravind says:

    New Mexico has laws against discrimination on the basis of sexual orientation with regards to housing or employment, which makes it seem like the state views sexual orientation as a non-issue that is innately discriminatory when considered between contractual parties (which is how New Mexico can defend LGBetc peoples’ rights when engaging in any sort of contract with other people but ignore them when LGBetc people want to have fully recognize same-sex marriages – the risk is other people contractually discriminating against them, not their relationships being devalued).

    Viewed through that lens, it’s not that photographers cannot turn down same-sex couples or LGBetc clients, but that their reason for doing so, at least explicitly cannot be because they’re a same-sex couple or an LGBetc person. It’s just like how it’s untrue that (for example) a woman or black person cannot be turned down for services by a business, only that (according to federal anti-discrimination laws) they cannot be turned down on the basis of their gender or race, respectively. (Since a lot of people don’t understand how these laws work, they would apply just as much if a man or a white person were denied work on the basis of their gender or race as well. Likewise, if the photography studio refused on the basis that they don’t “photograph male-female weddings” they’d also be at risk of such a suit, which would also probably win.)

    A bit like hate crimes laws, these situations factor in intent, so Elane Photography really screwed the pooch when they explicitly laid out their reasons for doing so. Honestly, you can get away with not associating with categories of people you don’t like (either by refusing to sell or hire or otherwise interact with them), but by a mixture of federal and state anti-discrimination laws you just can’t get away if you make it clear that your reasons for doing so are on grounds that invoke protected classes (which federally are gender, race, and religion, with assorted states adding further factors which are unacceptable when considering hiring, firing, housing, and typically other contractual agreements).

  14. aravind says:

    DISCLAIMER: I am not a lawyer in any sense, so take all of the above with a grain of salt.

  15. La Lubu says:

    People can die of exposure if they don’t have someplace to live. Less extreme, but similar, ideas can apply to purchasing food and finding employment.

    Sure. But people won’t die of exposure if they merely have a limited choice of places to live; if they’re restricted to certain sectors of the city. They won’t die of hunger if they are limited to purchasing food at certain stores, or getting takeout at the back door rather than sitting in the restaurant with the human beings. They also won’t die of hunger if their employment choices are narrowed to those of meager pay. A low-paying job is still a job. Being refused entrance to higher education because of one’s identity is also not something likely to kill someone.

    I know libertarians are big on individualism, and free speech, and free association—with “free association” meaning the right not to associate with anyone as well. And y’know—I fully agree with that view of free association in one’s private life. In the public life, you lose the right to limit association, because others have rights to public services and public spaces as well. You’re reading this as a free speech issue. I read it as a free association issue—that Elane Photography wasn’t concerned that the free speech of the business was being infringed upon, but that her right to not have to associate with those in same-sex relationships was being infringed upon. I believe that while Elaine Huegenin has the right to choose her friends, her church, who she has in her home, and other private venues…….once she opens a business that is open to the public, she has a legal obligation to serve the public. If she does not desire this, she is better served by opening a business that is restricted to the public—that requires private membership.

    Barry, you live in one of the larger metropolitan areas of the US. When you said, “photographer A, rather than any photographer” I about fell out of my chair. Have you never lived in a smaller city or small town? A less dense urban area, or a rural area, means fewer choices. And if those fewer choices all link hands and agree that a certain class of people is not the class of people they are willing to provide services for, those choices dwindle down to zero. This imposes a large financial cost for the restricted class of people—they now have to hire services that come from a great distance, perhaps requiring an overnight stay. It’s an added burden that the non-restricted class of people don’t have to carry. Perhaps your libertarianism leads you to believe that that no one has a right to live in their hometown, or close to their employment. I don’t know. But you don’t seem to have any familiarity with exactly how provincial much of this nation is. The choice in most areas of the country wouldn’t be between “photographer A” and “photographer B”, but between a professional photographer and Uncle Joe with his $180 Nikon he got on sale at Best Buy, and hoping Uncle Joe got some good shots before he got in the bag (got drunk).

    Which brings me down to what these laws accomplish—changing the culture. The reason we’re having this debate in the first place is because the USian culture has already been changed by equal rights laws. One’s business used to be thought of as private space—as much of a “castle” as one’s home, with the full right to exclude any class of person one wished. Now, after the Civil Rights Act, most people make a clear separation in their minds between what is public and what is private. Most people recognize the harm when the full citizenry isn’t allowed to participate in public life as full citizens. Most people don’t accept that some folks should be allowed to sit in the restaurant and partake of social space along with the food, while others are relegated to picking up takeout at the back door.

    That’s what the laws do—they allow everyone in the front door, by drawing a clear, bright line of what is acceptable public behavior when it comes to who will and will not be offered services (or employment). My employers can lay me off first—there’s no real remedy for that, and is an endemic problem in the trades for women and men of color—but they can’t refuse to hire me in the first instance because I’m female. Prior to 1972? That was perfectly legal. It wasn’t thought to deny women anything; after all, I could still get a job as a maid, waitress, daycare worker, what have you. I wouldn’t starve if I were ambitious, right? (well, at least until my body held up. saving for the future isn’t really possible with jobs like that). But then Title IX came along, and opened up apprenticeships (governed under the Department of Education), and all of a sudden women couldn’t be turned away. Which isn’t to say we weren’t; although I saw the immediate effect as a child (seeing women on road construction jobs), in many places women were still being turned away. It wasn’t until Jimmy Carter put the hammer down in 1978 that many trades were effectively opened to women.

    That’s hard to explain to apprentices I work with. They’ve never known any other world. Young guys—I must be getting old, ‘cuz I think of them as ‘kids’—they haven’t seen a world in which women were excluded from gainful employment. They can’t wrap their heads around why that would even be desirable.

    Change happens slowly. But it requires an initial kinetic force to get things moving. If equal rights laws were never passed to begin with—that initial lever—the momentum we see now wouldn’t exist. We’d still be in stasis; in a place where some of our citizens have full rights of participation, and others don’t (although the ones that don’t would still have obligations that exceed their rights—-they necessarily would be giving much more than they received at the societal level).

    And by requiring all businesses to provide the same services to the same groups—no more back door—it gives societal support to those who are willing to push the envelope. Without that societal backing, people can be afraid to do so, because they can’t count on support but can count on resistance and backlash (again, this is a lot more visible in less dense urban areas and rural areas. there’s a certain anonymity in very dense urban areas that isn’t present elsewhere).

    My biggest disconnect with libertarianism is the extent to which it protects and upholds the status quo—it upholds the powerful and effectively punishes those with less power by claiming the powerful have no obligations to those without other than what any particular powerful individual deigns to offer on his or her individual whim. It’s an updated version of feudalism. But my other disconnect with it is the fact that human beings are social animals—we don’t survive well (or at all) as individuals. We evolved to survive cooperatively. Structures that promote cooperation and full participation enhance our survival. Structures that rely on the goodwill of those who are under no obligation to offer it stunt our collective survival. The human experiment may or may not turn out well, but if it does, it won’t be because of libertarianism.

  16. La Lubu says:

    Forgive me, Barry, but may I be allowed another comment? As I was getting ready for my day, my mind kept racing with more thoughts.

    The first is that I’m bothered by the assumption that Elaine Huegenin is merely a bigoted, (insert negative name-calling here), individual. I don’t believe that’s true. I believe she is a product of her cultural environment, and that she is/was acting within the cultural norms of her environment. Thus, the over-riding assumption within her locale isn’t going to be, “wow, what a hateful person; let’s take our business elsewhere”, but a yawn. Or even a hooray. Discriminatory acts take place within the backdrop of historical oppression. It’s an illusion that they happen on an individual level. Marginalized people are marginalized because of historical oppression that has continued for such a length of time to be thought of as organic.

    I’m also bothered by the assumption that State power is inherently more oppressive than other forms of institutional power, or more oppressive than the myriad forms of informal instituional power. The state isn’t an amorphous entity that exists independently of the persons who comprise it. Informal instutions have just as much coercive and violent expressions of power as formal institutions (“mob mentality”) and fewer means for marginalized persons to assert their humanity by participating in society. State executions are brutal, but are far more humane on any objective measure than lynchings.

    If you are a marginalized person, your experience of your oppression doesn’t come primarily from the State, but is rather demonstrated on a daily basis by a series of informal hostilities turned upon you by your “neighbors”, people who ostensibly don’t have any more power or status than you, but in reality do, because they benefit from participation in privileged institutions you are excluded from, through no fault of your own. These hostilities are not only condoned by the larger society, but are often extolled as virtues. Privileged people have the luxury of fearing the power of the State because it is the only power (in a secular society) that can challenge informal (but ubiquitous) oppressive institutions that benefit them (at the expense of maginalized others).

    What you are proposing is that marginalized individuals can somehow gather enough power to overcome the power of those who marginalize them (gathered over generations and deeply embedded within the larger culture) while simulaneously being excluded from means for exercising equivalent power (as individuals or as a colective). This doesn’t make any sense to me. These social transactions aren’t individualized; they happen within the context of history and culture. Without a countervailing societal force equivalent in power, any challenge to the status quo is easily dismissed.

    (Or perhaps I misunderstand you. Perhaps you feel that if marginalized persons aserting their humanity via peaceful means and supererogatory behavior on their part are still not accepted, then they are morally free to take up arms against their oppressors and kill their way to freedom. Because to be blunt, that’s what we’re talking about—achieving equality via effective peaceful means or by brute force. Tacitly accepting unequal status is not what humans do (using history as our guide). Neither does politely appealing to the better nature of one’s oppressor work, absent the inherent threat of force.

    The other thing that bothers me is the idea that individuals can end their oppression via rational means. Bigotry is an inherently irrational, nonobjective behavior. Sandra Dy O’Connor didn’t get to be a Supreme. Court Justice because she worked hard in college and graduated with honors from an elite university; she did all that and received one job offer after graduation….to be a secretary (a position that had she taken it, would have provided enough of a living for her to keep her from starvation, no?). No, it was the passage of antidiscrimination laws that allowed her to rise to the position she did. It wasn’t her abilities that limited her, but the culture in which she lived. Bigotry, because it is irrational, requires means other than the rational (“proving oneself”) to combat it effectively. Antidiscrimination laws work because they provide a certain critical mass. They change the flow of the stream. Relying on individual efforts always results in the advantage of critical mass being with the status quo. If the marginalized populace is small enough, the tipping point for their full humanity may never come.

    I agree with you that power is inherently abusive or subject to abuse. That is why it is so critical to human survival to have a balance of powers. You are bluntly proposing that there are more advantages to allowing, rather than challenging, the form of discrimination Elane Photography engaged in. That the cost of imposing on Elaine to photograph same-sex couples as part of her publically-operated business is too great to be borne by her and those who share her feelings. That the cost instead should be borne by the couples rejected by those with ill feelings toward same-sex couples (or any other marginalized group)—the emotional cost of being reminded of second-clss status (and the physical cost that a lifetime of this stress does to one’s body) as well as the literal financial cost of having to pay more money for services (either as part of a premium charged to marginalized persons because the market allows it, or the actual cost of hiring long-distance services if the marginalization is concentrated in one’s locale—with the service provider having to charge extra for food, lodging, and lost business due to the time away from home). That there is no real cost to society as a whole in tacitly supporting and normalizing this discrimination, as if these acts don’t reinforce the inferior status of marginalized people.

  17. La Lubu says:

    (Forgive my spelling errors; typing on a phone doesn’t allow easy proofreading. “Me spell gud one day.”)

  18. David Blankenhorn says:

    Good discussion here. To me this is not a simple issue. One point that I don’t think has been fully explored is that, it matters whether the service being denied can be obtained elswhere without the process being an undue burden (economically, and/or in terms of human dignity) on the purchaser. If you are the only druggist in town, and you don’t want to sell, say, birth control pills to teenage females, that arguably creates a heavy burden for many of those who want the service. But if there are ten other druggists in town who do provide birth control pills for all who seek them, the burden on the would-be purchaser who is denied at the one drug store is quite different. My guess (though I suppose it varies) is that most wedding photography falls in the latter category — i.e., if one provider won’t work for you on grounds of conscience, there are others who happily will.

    Another consideration is, how vital is the service. Medicine is one thing, photos are arguably another. Both matter to quality of life, but medicine is more fundamental, in most senses, than photos.

    In general I think Barry is right. Compelling a private actor in the economy to sell personal services to anyone who will pay, even if doing so violates the conscience of the provider, is a very serious step and a significant curtailment of the rights of conscience. I’m not saying there aren’t good arguments on both sides, and I would likely feel differently if the question were for example (as above) medicine and the town’s only drug store, but simply legally steamrolling over say, photographers, on this issue, with all of the social uniformity that that step implies, does seem to me to be over-reaching and ultimately counter-productive, in the name of legally enforcing one ethical outlook on everyone.

    A footnote. I’m also, in general, impressed when ANYONE reaches a conclusion that, in general, challenges the assumptions of many of his or her “allies” and possibly appeals to many of her or his “adversaries.” Taking this type of in some ways contrarian position doesn’t prove that the position is correct, of course, but to me, it does show character. And it is so, and increasingly, rare in today’s public conversation. So, a hat-tip from me to Barry, the merits of this particular case aside.

  19. JeffreyRO5 says:

    “….even if doing so violates the conscience of the provider….”

    I think the notion that this is a conscience issue is debatable. I mentioned earlier that there rarely, if ever, seems to be the case of wedding photographer who refuses to photograph the couple who had pre-marital sex, or where one or both of the spouses committed adultery (by remarrying), etc. So, first, there is the lack of consistency, which calls into question whether this is really about religious belief at all.

    It’s not unfair to determine, or at least question, the inconsistency of a particular service provider. As conjecture, I wonder if s/he had the opportunity to photograph the Brad Pitt/Angelina Jolie wedding, with the awesome publicity that would provide a photographer, if s/he would turn it down because they are both adulterers, according to the Bible.

    Second, for Christians, where in the Bible is the authority that says you cannot provide professional services to people whom you perceive have sinned? Are commitment ceremonies or same-sex weddings forbidden in the Bible? It boggles the mind to think what our society would be like if religious reasons could be used by lay people to note serve customers. Are Christians under any requirement by the Bible to find out if obviously affectionate couples are actually married before renting them a room together?

    Third, New Mexico has a law against discriminating in business against certain groups. As the US Supreme Court has noted, religious exceptions to laws are rare.

    Religious beliefs aren’t cut and dried; many faiths are happy to bless same-sex weddings, for example, including Christian denominations. All religious beliefs are in some way informed by personal beliefs and interpretation.

  20. Mont D. Law says:

    You can not possibly be more libertarian on free speech issues then I am. It is condescending of you suggest that is the source of our disagreement.

    People should have the absolute right to make any statement, produce and distribute any art they want, that is free speech. After deciding to sell a product you and the photographer want to be able to decide who can purchase that product. Johnny Rebel’s right to record and distribute “Nigger Hatin’ Me,” is free speech and absolute. He also has a right under copy right law to control, within limits, the use of the song by others. What he can’t do is refuse to distribute it to black record stores and radio stations because he
    doesn’t like black people.

    [People can die of exposure if they don’t have someplace to live.]

    This parsing is both illogical and dangerous. A right exists or it doesn’t. If a right is contingent on market availability it is not a right. If a landlord can assert gay people have plenty of rental options in the Castro or an employer can point La Luba to other job opportunities or a grocer can deny my bi-racial son to other nearby stores how would you argue against them discriminate accordingly?

    [The actual problem was that Willock ran into a bigot, and the bigot made Willock feel humiliated, hated and unhappy. I’m genuinely sorry that Willock had that experience. I think I’ve been there myself, and it sucks.

    But that’s not something the government is capable of remedying.]

    The Sands hired Sammy Davis Jr. to entertain in the casino but would let him stay or eat there. Under your theory Davis’ rights are not being violated. After all he was free to not work at The Sands. If he choose to work there he wasn’t going to freeze or starve. All the hotel did was make him feel humiliated, hated and unhappy.

  21. La Lubu and Mont D Law, I feel that both of you have responded to me in a way that vastly distorted what I said. Presumably this is my fault, because I didn’t state my view clearly enough. Let me see if I can clarify my point.

    Here’s a paragraph I wrote, that both of you quoted partly to respond to:

    In the case of landlords and hotels, I think there is a strongly compelling reason for anti-discrimination laws to apply. People can die of exposure if they don’t have someplace to live. Less extreme, but similar, ideas can apply to purchasing food and finding employment. It creates an unsustainable burden on quiltbag people’s lives if they always have to drive an hour out of their way to the grocery store that serves them, or if they don’t have equal access to employment markets.

    Both of you quoted part of that paragraph and then argued with me as if I hadn’t written the bolded sentence at all.

    When I gave the example of having to drive out of your way to the non-discriminatory grocery story as creating “an unsustainable burden on quiltbag people’s lives,” my intention was to say that I don’t think any grocery store should have the right to refuse to serve people because they are lesbian, gay, bi, or trans. I’m sorry that wasn’t clear.

    I think the government has a strong interest in American citizens having access to participation in the economy and in society without regard for sexual orientation, sex, race, religion, etc.. At the same time, the government also has a strong interest in protecting freedom of speech and individual autonomy. The law should seek to balance those interests, not to say that one interest is so important that the other interest is never relevant.

    Finding the exact place to draw the line is hard — no matter where you draw it, there are always going to be hard cases at the border. But I think looking at the size of the burden created on quiltbag people, and (on the other side) looking at the burden created on free speech, is a defensible approach.

    The burden created on someone who can’t shop at their local grocery store, can’t stay in a hotel when they travel, can’t rent an apartment where they want to, can’t go to the local movie theater, etc.., is much larger than the burden on someone who can’t hire a wedding photographer (as David said). This is because food, lodging, and even entertainment are everyday needs, whereas a wedding photographer is a once-or-twice-in-a-lifetime.

    So that’s one distinction between a grocery store and a wedding photographer.

    On the other hand, being a wedding photographer clearly does have an expressive component, and so brings up first amendment issues. No such first amendment issue is brought up by a grocery story.

    So that’s a second distinction.

    I don’t think these distinctions are arbitrary, or meaningless, or impossible for laws and courts to parse.

  22. Mont, I am obviously more libertarian on free speech issues than you are. You think that the government has a right to compel Danny Elfman to compose music he doesn’t want to compose; I don’t.

    (Incidentally, I also disagree that Springsteen or anyone else should have a right to control who plays his music in what context. To say that the government, or Springsteen, has a right to control what music Mitt Romney plays at a Romney campaign rally is an unfair infringement on Romney’s free speech, imo.)

    Nor is it true that rights either exist absolutely, or don’t exist at all. For instance, your right to free speech doesn’t extend to falsely shouting “fire” in a crowded theater. Context matters. Rights are often in conflict and have to be balanced.

  23. La Lubu says:

    Barry, you contradict yourself when you say that artists don’t have the right to control artistic creations that they hold ownership over. Why should Romney or anyone else have ownership over another’s words? It is my understanding (and correct me if I’m wrong) that wedding photographers don’t hold full ownership or creative control of the wedding photos that they take—that the typical contract they present to clients may give them limited-use rights for promotional purposes, but no more. That they don’t hold authority over how or when or under what circumstances their clients make use of the photos. That isn’t the same circumstance of creation that Springsteen or Mellencamp are creating in, and to the best of my knowledge hold strong creative title to their productions (though perhaps not as strong as Tom Waits holds over his productions).

  24. La Lubu says:

    Drat, I lost a comment in there somewhere….maybe I can conjure it up later.

  25. La Lubu, I feel that because I mentioned the word “libertarian,” you’ve attributed many views to me that I don’t actually hold. Let me clarify that although I have libertarian views on some particular issues, such as free speech and drug use, I am NOT a libertarian.

    I agree with 95% of what you’ve written here, including your critique of libertarianism.

    You’re reading this as a free speech issue. I read it as a free association issue—that Elane Photography wasn’t concerned that the free speech of the business was being infringed upon, but that her right to not have to associate with those in same-sex relationships was being infringed upon.

    Elaine Huguenin hired a lawyer to make arguments for her, and that lawyer explicitly argued that her concern was that her free speech rights are violated if she’s compelled to take photos celebrating an occasion she believes to be wrong. Huguenin also testified under oath about her concerns.

    So unless you’re arguing that Huguenin was simply lying – in which case, I’d want to know the basis for that — I think we have to accept that she believes there’s a real free speech issue here.

    She might also want not to associate with quiltbag people, but she didn’t make that argument in court (afaik).

    Barry, you live in one of the larger metropolitan areas of the US.

    As does Vanessa Willock. (Portland and Albuquerque are similar sized cities.)

    When you said, “photographer A, rather than any photographer” I about fell out of my chair. Have you never lived in a smaller city or small town?

    I used to live in Sunderland, Massachusetts, which has a population of less than 4,000. However, I have to admit Sunderland is in a pretty liberal area (Jane Lynch’s wedding took place in Sunderland), and it’s not a far drive from Sunderland to larger towns like Amherst.

    The choice in most areas of the country wouldn’t be between “photographer A” and “photographer B”, but between a professional photographer and Uncle Joe with his $180 Nikon he got on sale at Best Buy, and hoping Uncle Joe got some good shots before he got in the bag (got drunk).

    This is a pet peeve of mine that doesn’t have much to do with this issue, but “most areas of the country” isn’t a really relevant metric in a democracy. The question shouldn’t be what most of the geography is like, but what the lives of most people are like. And most people live in urban areas or in large towns, not in isolated rural areas.

    The large majority of people in this country live in towns and cities large enough to support multiple photographers.

    That said, it is true that somewhere in the country, there are people who live in areas with only one photographer, and if that photographer is a bigot they may be out of luck, or be forced to spend extra money to import a photographer from further away. And maybe they don’t have that extra money at all.

    So you’re right, that could happen. But that doesn’t seem like such a crucial issue to me. I’ve worked with literally hundreds of couples (both same-sex and opposite-sex) who couldn’t afford professional photography at their wedding (let alone professional catering!). Having a skilled photographer at your wedding is really nice if you can afford it, but many ordinary people can’t afford it, and they can still have wonderful weddings.

    I think that the first amendment right to not be compelled into speech is really crucial. To overcome it should require that something equally or even more crucial is at issue. The right of a small rural minority to have a professional wedding photographer at their wedding, doesn’t seem to me to be an example of a right that’s more crucial than free speech.

    You’re not just arguing that Elaine Huguenin shouldn’t have the right to decide what photos she takes. You’re also in effect arguing that I shouldn’t have the right to decide what illustrations I draw. It’s the same free speech issue; do “expressive contractors” (wow, what a clumsy phrase, but you know what I mean) have a right to turn down jobs because of what the job requires them to express?

    You bring up the examples of restaurants serving people; of Title IX; of the Civil Rights Act. But those are all examples I agree with. Restaurants should not have the right to refuse to serve people because they are quiltbag; I favor Title IX; I favor the CRA; I favor equal employment laws.

    None of those laws, however, require the government to compel Elaine Huguenin to take photos celebrating an occasion that she abhors.

  26. By the way, La Lubu, I’m amazed at how well you can type on a phone! I can barely peck out a single sentence on my phone.

    Barry, you contradict yourself when you say that artists don’t have the right to control artistic creations that they hold ownership over.

    I think you misunderstand me. I’m not saying artists “don’t” have that right; to some extent, they do have that right, under current law. I’m saying they SHOULDN’T have that right.

    My views on copyright are pretty radical, and not really relevant to this thread. But I think that once an artist releases a work into the public, they [should] no longer have a right to control what exactly the public does with that work.

    Why should Romney or anyone else have ownership over another’s words?

    Romney shouldn’t be the legal owner of the songs. But he should have the right to play those songs in public or private, just like anyone else.

    It is my understanding (and correct me if I’m wrong) that wedding photographers don’t hold full ownership or creative control of the wedding photos that they take—that the typical contract they present to clients may give them limited-use rights for promotional purposes, but no more.

    It depends on the contract. In the case of Elane Photography, Huguenin retains legal ownership of all the photos she takes, and just gives permission to her clients to use the photos in certain limited situations (i.e., they can display the photos at private occasions and on their websites, but they can’t sell them to be used in advertisements). This is a pretty common arrangement for wedding photography.

    (I know about Huguenin’s contracts because they’re described in the NMHRC ruling.)

    But, again, I don’t really think this is all that relevant to this thread. Even if Huguenin’s contract gave copyright ownership of the photos to her clients, she’d still have a first amendment right to turn down clients, in my opinion.

  27. La Lubu says:

    Oh, nevermind. I’m being an ‘ucarranna anyway. *smile* (literal translation: I’m talking too much. Understood translation: “diarreah of the mouth”)

    I mentioned that I did notice your bolded paragraph, Barry, but that there remains plent of argument about what constitutes an undue burden, and offered some examples from Illinois and from my own experience as a woman in the building trades. Amongst all the tl;dr my main point is: the balance of power is already struck in favor of bigotry. Bigotry is the status quo. I see your argument as claiming that it is unfair to ask one party to suffer a psychic/emotional burden by having to provide public services to the whole public; that instead the burden should be borne by the party that suffers both an emotional/psychic wound and a material burden. That somehow a double burden is a lighter imposition than a single burden. That dosn’t make any sense to me. (And yes, I’m thinking of the case in terms of legal precedent, and overlooking the fact that in this particular instance, the couple was able to find a photographer. That wouldn’t be the case for many other couples, nor would it be the case that most of these couples would have access to the libertarian path to justice—the court system. Attorneys are prohibitively expensive for most of us, particularly if it isn’t a slam-dunk case. Libertarian viewpoints privilege the already-privileged, and justice shouldn’t be limited to those with the wealth to pursue it.

  28. La Lubu says:

    Barry, it’s not primarily rural areas that I’m thinking of, but rather smaller urban areas like my own (less than 200,000) where is is easy to imagine marginalized groups being turned away from any number of legitimate businesses if they had the legal right to do so. Right here, the balance of power leans heavily towards those who prefer to discriminate. Lesbians have been kicked out of public accommodations for expressing the mildest form of PDA, and gay bashing is a routine occurrance. You may feel that there is a clear difference between photography and say, hall rental, but that isn’t the majority view here. Here, the view is more like that of David’s example of the right to refuse birth control—that just because someone serves the public, that person should be under no legal obligation to serve people that they feel are inherently immoral. That it is a violation of conscience and undermining their ethics.

    Part of what legal decisions are supposed to do is set new parameters. That is their blessing and their danger. I’m more of a fan of legislative change, because it is inherently more democratic (more people have access to the ballot than to the court system; the courts ultimately favor those with the most wealth….though in a post-Citizens world the same is true of the legislature….so, nevermind! *smile*). But…my pragmatism outweighs any glimmers of idealism every time (I chalk that up to a side-effect of being a tradesperson; the tangible world is where we spend our time, and the work we do indelibly shapes us over a lifetime. It’s that, and not Marxism (* broad smile*) that leads me to prioritize the material over the ethereal).

  29. Brian says:

    David,

    I am not sure your distinction on whether the person can purchase the service elsewhere holds up. Let’s assume a town or city that has such an abundance of housing that a landlord who would only rent to Caucasians would not in any practical manner impact the ability of non-Caucasians to find housing. For the sake of argument let’s further assume that there is no negative impact on the quality and price of housing available to non-Caucasians. I think most of us would agree that the landlord’s business practice here should not be allowed even if there is no direct negative consequences.

  30. La Lubu says:

    Oh…and regarding access, it’s fairly common for midwestern cities of less than 200,000 to not have evening bus service. It was that way in my city until very recently; there was no evening service for something like fifty years. Welcome to the rust belt; enjoy the dwindling services of our depleted tax base!

  31. Mont D. Law says:

    [You think that the government has a right to compel Danny Elfman to compose music he doesn’t want to compose; I don’t.]

    I’m sorry my point was perhaps not clear enough. I did not argue any such thing. Danny Elfman is free to compose anything he wants anytime he wants. I argued that once he decided to sell his talents as a composer he should not legally be able discriminate against protected minorities who want employ him, based on their status as protected minorities. Elfman’s speech rights are not impacted at all, only his right to sell his talents as a composer.

    [You’re not just arguing that Elaine Huguenin shouldn’t have the right to decide what photos she takes. You’re also in effect arguing that I shouldn’t have the right to decide what illustrations I draw. It’s the same free speech issue; do “expressive contractors” (wow, what a clumsy phrase, but you know what I mean) have a right to turn down jobs because of what the job requires them to express?]

    Except neither you nor Elaine are asking to be exempt from the law because of what you’re being asked to express in your art work. You are asking to be allowed to refuse service to a protected class as a sign of disapproval of that class and/or their actions. The photographer is not obligated to take a job shooting stills on a gay porn set and you are not obligated to take a job drawing Jack Chick comics. You want to the right to discriminate before any discussion of what work would be expected takes place.

    [I think that the first amendment right to not be compelled into speech is really crucial.]

    There is no first amendment right not to be into compelled to speech. The law can’t force you to draw letterhead logos or Elaine to take wedding photos and isn’t trying to. It can stop you from discriminating once you have agreed to draw letterhead logos or take wedding photos.

    [For instance, your right to free speech doesn’t extend to falsely shouting “fire” in a crowded theater. Context matters. Rights are often in conflict and have to be balanced.]

    It is because rights are absolute that they come into conflict and must be balanced. If rights were not absolute they could be abrogated for any reason or none. We could grade them on a curve. Because they are absolute balancing them requires assessing the burden placed on the person trying to exercise the right relative to the cost to society when that right is denied. Not the cost to the individual asking permission to deny that right but to the society as a whole if that right is denied. The argument you are making is in effect the same arguments social conservatives use to impose conditions on abortion. In their view the conditions they are demanding from the women do not constitute a burden when balanced by societies interest in the welfare of the unborn child. I get that in your view denying gay couples access to a wedding photographer doesn’t impose the same burden as denying them housing. What you haven’t successfully explained is exactly what Elaine and her lawyer could not explain. How society benefits from restricting minority rights in this case.

    As for the fire/theater thing, Holmes made that argument to justify the imprisonment socialists of distributing flyers opposing the draft. The decision he wrote for the entire court balances competing rights in exactly the way I described. The burden imposed on the socialists was weighed against societies the larger need to win the war. He said:

    [The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.]

  32. JeffreyRO5 says:

    “You’re not just arguing that Elaine Huguenin shouldn’t have the right to decide what photos she takes. You’re also in effect arguing that I shouldn’t have the right to decide what illustrations I draw.”

    Not at all. The argument is about deciding WHO you take photos for, or make illustrations for, and is there a place for deciding that some people make desirable customers and other people make undesirable customers, based on who they are. In other words, can a business decide to serve some people, but not others, based on who the customers are (as opposed to, say, where they live [far or near], how much they have to spend, their specific demands (that you can’t meet), etc.

    You would have to feel comfortable letting photographers not photograph Jews, blacks or other minorities, if you want to argue that they not be required to serve gay customers, it seems to me. I’m not comfortable at all with extending that right to service providers or businesses.

  33. Jeffrey, the argument in court was not about Elane Photography’s right to decline to work for a lesbian client; neither she nor her lawyer ever made such an argument, as far as I know. The argument they made was about her right to decline to photograph a same-sex commitment ceremony.

    Imagine, for instance, that a lesbian’s heterosexual mother had gone to Elane Photography, and had tried to hire her to photograph her daughter’s commitment ceremony. In that case, I presume that Elane Photography would have turned the job down, even though the client would have been a heterosexual.

    The argument Elane Photography made in court wasn’t that she has a right not to work for lesbians, but that she has a right to decline to take photographs celebrating a same-sex commitment ceremony. If you’re not addressing that argument, then you’re not addressing the actual argument at issue in this specific case.

  34. aravind says:

    La Lubu:

    it’s not primarily rural areas that I’m thinking of, but rather smaller urban areas like my own (less than 200,000) where is is easy to imagine marginalized groups being turned away from any number of legitimate businesses if they had the legal right to do so.

    Not only that, but with so many local businesses being replaced with larger chains if not multi-national corporations, accountability to any sort of local pressure not to discriminate is thinning. For instance, the primary bank my parents use is based in Texas, so naturally it doesn’t recognize them as a legally married couple, even though they are by the state they live in. The result is practically farcical, since they legally have to prepare state taxes as a married couple, using funds in accounts that don’t recognize them as such.

  35. JeffreyRO5 says:

    “The argument Elane Photography made in court wasn’t that she has a right not to work for lesbians, but that she has a right to decline to take photographs celebrating a same-sex commitment ceremony.”

    I think that’s splitting hairs, since gay people, not straight people, are the ones that have same-sex ceremonies on a pretty consistent basis. But I guess she could refuse to do bar mitzvahs and bat mitzvahs, and say it has nothing to do with Jews. I would be suspicious of such an explanation though.

    It does, however, make her case of religious conscience even weaker, since there is nothing in the bible about not photographing same-sex ceremonies that I’ve heard of, as opposed to those oblique and glancing references to homosexual activity that seem to form the foundation of arguments against equal legal rights for gays and lesbians. She could re-strengthen her case by pointing to the adulterous couple she refused to photograph, the couple that had pre-marital sex whom she refused to photograph and the Atheist couple she refused to photograph.

    And as I noted, the Bible does forbid the creation of graven images, aka, photographs. It stretches credulity, then, that a Christian photographer could object to photographing a same-sex ceremony. If the world made any sense, Christian weddings wouldn’t have a photographer in the first place!

  36. JeffreyRO5 says:

    “Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth”

    I know not everyone is familiar with the Ten Commandments these days, so I thought I’d post #2. In essence, this photographer is violating the Second Commandment by the very nature of her work. Her specific objection is to, as Barry noted, photographing a same-sex ceremony, something that I think the Bible is silent about.

    At the risk of beating a dead horse, it is quite odd indeed that a woman would choose a profession that violates her faith, and then claim religious conscience about not doing something that her main faith book says nothing about.

    But that’s the crazy world we live in!

  37. Linus says:

    JeffreyRO5,

    While I have no doubt that many professional artists and creators who are religious are highly inconsistent in living out their faiths (in the same way that every religious and non-religious person is inconsistent in living out their morals) – is it the state’s right (or any outside party for that matter) to define what their orthodox practice ought to look like?

    Even in the verse you cited, there might be many differing interpretations of what actually constitutes a “graven image.” If Elaine’s religious community interprets that passage in such a way as to allow photography, and also interprets other scriptures to conclude that people in same-sex relationships ought to be shunned and avoided because they are some sort of frightful abomination – they can do so sincerely believing that they are living out their faith correctly. And this wouldn’t stop the next church or synagague down the street from approaching the same scriptures from an entirely different angle and coming to a vastly different interpretation where they would happily sanction same-sex union while forbidding photography as a grave sin.

    I don’t think the state wants to get into the business of determining for each individual what actions or expression do, or do not, violate their conscience. Elane gets to allege that her conscience is being violated when she is compelled to photograph a same-sex commitment ceremony and we have to take her at her word that she sincerely believes this (even if we also think that makes her a bigot). The question becomes – does the same-sex couple’s right to public accomodation trump her right to deny them said accomodation on grounds of free speech.

    New Mexico says yes, Barry says no. I honestly am not sure – I want to side with Barry based on the constitutional principles, but I feel like if the court rules in Elane Photography’s favor, it undermines some important civil rights precedents.

  38. JeffreyRO5 says:

    Linus,

    I think society, via the government (especially when such government purports to be “of the people, by the people, for the people”) does have a right to question religious practices. In fact, that’s long-established in our jurisprudence. Religious practices are often curtailed for the greater good, such as forbidding the stoning of non-virgin brides. More relevantly, perhaps, all 50 states allow easy divorce, grossly in violation of any possible interpretation of Christian instruction regarding marriage.

    Either the state supports discrimination against a minority or it opposes it. This dichotomy is going to leave somebody unhappy. But we are forcing the government to choose sides, or in some cases, change sides.

    What you want is a system where someone gets to claim a conscience protection, with no external evaluation about the legitimacy of that claim. I reject that, because it ultimately makes us all a religion of one: if I say it’s so, then it’s so. At that point, one’s religious beliefs are merely personal beliefs. Given the harmful impact on our fellow citizens, it becomes untenable to allow each of us a “hiding place,” religious belief, to justify our personal beliefs or actions. I don’t doubt the sincerity of the photographer’s belief; I do doubt whether it is religious or personal though. As I mentioned, a history of denying photographic services to adulterers, fornicators, and other sinners would be instructive, as would passages from the Bible forbidding the photographing of same-sex couple rituals.

    You acknowledge how flexible religious beliefs are in their interpretation. Given this fact, how strong is any person’s claim on religious conscience beliefs? And what is the downside of “violating” this belief? Would God somehow punish this photographer for taking photographs of a same-sex commitment ceremony, assuming He doesn’t mind the “graven images” aspect of her profession?

  39. It does, however, make her case of religious conscience even weaker, since there is nothing in the bible about not photographing same-sex ceremonies that I’ve heard of, as opposed to those oblique and glancing references to homosexual activity that seem to form the foundation of arguments against equal legal rights for gays and lesbians.

    Jeffrey, since she is not arguing that the bible commands her not to photograph gay weddings, your argument doesn’t seem relevant to this case. With all due respect, this feels like you had a pre-existing argument you like (which happens to be one I like, too), that you’re trying to shoehorn into a case where it really doesn’t fit.

    She is arguing that as a matter of free speech, she declines to create photographs celebrating an occasion that she thinks shouldn’t be celebrated. Nothing about that argument requires “the bible forbids taking photos of lesbian commitment ceremonies” as a premise.

    The argument that’s actually at issue here can be summed up like this:

    1) Taking wedding photographs is at least as expressive an act as putting a license plate with a political motto on it, on your car.

    2) There is a first amendment right to decline to express something you don’t want to express.

    3) That first amendment right should outweigh New Mexico’s interest in making sure that all professional wedding photographers do not discriminate against lgbt ceremonies.

    Note that nothing in this argument requires a test of whether or not her underlying religious premises are consistent with her religion’s holy texts. Nor would I want to live in a country in which secular courts took it upon themselves to rule on whether or not people’s religious practices and beliefs are consistent with their religion’s texts.

  40. JeffreyRO5 says:

    From the PDF attached to this article:

    “Elane Photography also had an unwritten company policy, which was shared between its co-owners, Elaine Huguenin and Jonathan Huguenin, that Elane Photography would not photograph any image or event which was contrary to the religious beliefs of its co-owners.
    [Testimony of Elaine Huguenin and Jonathan Huguenin]”

    This article is listed under the categories of “marriage” and “religion”.

    Having read media reports about this case, and knowing that religious organizations have seized on it as a case of bias against religious belief, I believe that the basis of the photographer’s complaint is a perceived religious belief, not one of artistic expression.

    Her artistic abilities are in no way compromised depending on the gender of the couple participating in the ceremony, that I can see. Her business might be compromised, if anti-gay customers decline to use her services if they find out she does “gay stuff.” But that doesn’t seem to be the basis of her complaint.

  41. Linus says:

    Barry, I think you clarify this well.

    JeffreyRO5,

    I think society, via the government (especially when such government purports to be “of the people, by the people, for the people”) does have a right to question religious practices. In fact, that’s long-established in our jurisprudence. Religious practices are often curtailed for the greater good, such as forbidding the stoning of non-virgin brides.

    The first amendment text reads: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

    You are right if what you are saying is that the government can, in order to protect the rights of others and ensure the preservation of public goods, restrict the free exercise of religion. However, current court precedent requires a principle of “strict scrutiny” to come into play, where the government must show a compelling interest (with general applicability) for restricting the right of religious exercise. Note that the content of the religious exercise is not important, proving that the state has a valid reason for opposing it is.

    It is not for you to question whether the photographer’s beliefs are her personal or religious beliefs; you are allowed to question whether the state has a compelling interest for asking her to violate them. Stopping discrimination is a compelling public interest, so there is an argument to be made for it. However – as Barry points out, protecting her free speech right as an extention of her free exercise rights, is an equally important consideration.

  42. JeffreyRO5 says:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

    Which is why we have no choice but to scrutinize and test a claim of religious conscience, to see if a law is violating someone’s religious freedom. The law doesn’t say, “Whosoever claims a religious exemption automatically gets his way” or “a claim of religious belief supersedes any other considerations.” Legal precedent shows that the courts are rather suspicious of religious exemptions as a way to skirt the law. Here, New Mexico has a law that says businesses can’t discriminate based on sexual orientation. The photographer in question appears to want to avoid serving gay people, or more specifically, photographing a celebratory event between two people of the same sex.

    To know whether the photographer can break the law based on religious beliefs, we have to know what the beliefs are, and if they are legitimate. To me, the court has to ask:

    1. What is the religious belief?
    2. Is it genuinely held (as opposed to a rationalization disguised as religious belief)?
    3. What is the harm to the believer if the belief is curtailed?

    To answer, in my opinion,

    1. Beats me what the religious belief is. I don’t know of anything in the Bible, or any other religious text, that states a person engaged in business must not perform a service for a same-sex couple. I’m not saying such instructions don’t exist, I’m just admitting I’ve never heard of them. If there’s something in the Bible about commercial transactions with sinners, I’d like to learn about that, and if it applies only to gay people.
    2. If “not serving sinners” or whatever is the photographer’s sincerely held belief, then there are probably numerous times that she’s turned down other sinners, gay or straight, in her line of work. To help the courts determine whether hers is a religious belief or a personal belief, she could produce documentation of the fornicating couple whose wedding she refused to photograph, or the adulterer whose business she turned away. She might post an official statement on her website to the effect: “no persons who are in violation of biblical law will be served,” although, as I’ve noted, I don’t see how that would exclude a gay couple having a commitment ceremony. It would hurt her case, of course, if there were evidence that she knowingly photographed a divorced person getting remarried.
    3. To some extent, I think it’s up to the believer to determine what harm they think will befall them. As with #1, it would be useful if the relevant religious text cited specific punishments, for example. I know that if the photographer does do the ceremony, she’ll be paid, which is a good thing, not a bad thing.

    To sum up, I don’t think a religious conscience objection is a free pass to do what you want, or not do what you don’t want, particularly when other people are affected. I also think analyzing the claim is extremely useful, in case the claim is false. What if the photographer falsely believed that the Bible forbids photographing gay people and their friends and family having fun? She might actually really want to do the job, but felt constrained by her erroneous understanding of the Bible!

    The photographer has other options, too. She can move to a less gay-friendly state. Where I live, you can fire a person or kick them out of a rental unit for being gay. I suspect my state would not have a law that forbids discrimination in commerce based on sexual orientation.

    Or she could find a line of work that doesn’t involve serving the public.

  43. olterigo says:

    You know this issue has a much simpler solution. It may not solve the issue of housing, jobs, and other more fundamental accommodations, but it will take care of the more “creative” service providers. Here’s the quote from sex and relationship columnist Dan Savage:

    If I may briefly speak for all gay couples everywhere: We don’t want to accidentally hire a bigot to take our wedding photos or bake—and perhaps spit in—our wedding cakes. So maybe instead of a special right to discriminate against us enshrined in law, anti-gay bigots who own wedding-related businesses could get together and start an anti-gay-wedding registry. It would be a website where you could let us know that you personally disapprove of same-sex marriages and would prefer that we take our business elsewhere. And we would take our business elsewhere. Given a choice between a bigoted baker and non-bigoted baker, gay couples will choose the latter—and spit-free batter—every time.

    So create a website, bigots, let us know who you are, and we’ll take our business elsewhere. And we’ll encourage our straight friends, family members, and coworkers to do the same.

    Now, isn’t that the simplest solution possible?