I just finished reading the New Mexico trial court’s Elane Photography decision, and thought I’d blog a bit about it. Let me begin with the compelled speech question.
Elane Photography — a husband-and-wife company in which the wife, Elaine Huguenin, is the head photographer (and I think the only routine photographer) — refused to photograph a same-sex wedding. This, the court held, violates state antidiscrimination law, since commercial photographers, as well as “film editor[s], commercial music composer[s], commercial musician[s], graphic designer[s] or any other creative professional[s] whose services are available to the public,” are treated as “public accommodation[s]” under New Mexico law. And the refusal to photograph same-sex weddings constitutes sexual orientation discrimination in public accommodations, which state law bans.
But, Huguenin says, requiring me to photograph same-sex weddings on the same terms as other weddings compels me to create expressive works. The First Amendment presumptively bars speech compulsions as well as speech restrictions; creating photography is a form of speech; therefore, I can’t be compelled to create photography, any more than I can be compelled to say things or display things on my property. Not so, says the court:
Plaintiff is not being asked to represent the government’s position ..., nor to alter its message .... Plaintiff’s message is not and has never been about same-sex marriages. Rather, its message is fine photography of special moments. Unlike the parade [involved in Hurley, a case in which the Supreme Court held a parade organizer could not be legally compelled to let a gay/lesbian/bisexual group’s float into its parade –EV], Plaintiff’s final message is not its own. Instead, Plaintiff is conveying its client’s message of a day well spent. As Defedant Willock states, Plaintiff is really a conduit or an agent for its clients. As such, the Court’s finding that Plaintiff cannot refuse to photograph same-sex couples during a commitment ceremony is not an infringement of Plaintiff’s right to freedom of expression.
1. The first thing we should note is the breadth of the court’s reasoning: It applies not just to photographers, but also to the musicians, composers, graphic designers, film editors, and other creators that the court mentioned earlier in the opinion. It would also apply to freelancers who write press releases, advertising copy, and so on. And I take it that it would also apply to bookstores, movie theaters, and other such distributors of others’ works; the authors and filmmakers aren’t “clients” of such distributors, but still the distributors’ “final message is not [their] own,” and they are “really a conduit” for others’ work.
I’ve heard some people argue that wedding photography (as opposed to artistic expression) isn’t really expression, because it’s too banal and straightforward. I doubt that this is so, but in any event it’s clear that the court’s reasoning applies without regard to the supposed banality of the expressive work.
2. But is the court’s reasoning, broad as it is, correct? Is it permissible for the law to require freelance writers, composers, artists, editors, and the like to create speech that they don’t want to create? Might it even be permissible for the law to require other conduits, such as bookstores and movie theaters, to distribute speech that they don’t want to distribute? (I use “speech” here in the standard First Amendment sense, which includes music, pictures, video, and the like.)
I don’t think so. After all, despite the court’s attempt to distinguish Wooley v. Maynard — the license plate motto case — a license plate motto isn’t the driver’s own (and certainly wasn’t seen that way before the Court recognized a driver’s right to obscure motto). The drivers in Wooley were simply conveying the government’s message; they were a conduit for the government. Yet the Court held that “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind,’” and that the Maynards had a right “to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.”
Now it’s true that here the government isn’t specifically requiring people to carry a particular string of words; and while a same-sex wedding may represent “an idea” (actually, many ideas), photographs of the wedding don’t convey the idea quite as specifically as the “Live Free or Die” on the license plate did. Nonetheless, Huguenin is being compelled not just to foster but to create a particular sort of expression — expression celebrating a same-sex union — that she finds morally objectionable.
Nor does it matter, I think, that Huguenin is in business. The Court has long held that speech retains full protection even when it’s sold for money. (Fully protected speech products such as newspapers, books, and the like are routinely sold for money.) The freedom from compelled speech applies to such sold-for-money media as well as to other media. The right not to create speech that you disapprove of should likewise extend to the right not to create such speech for money as well as the right not to create such speech for free. I take it, for instance, that the Maynards’ right not to display the “Live Free or Die” motto would apply even if the Maynards used their car to deliver pizzas or drive to commercial photography assignments. The same should extend to the right not to create works you disapprove of.
Wooley did involve the display of speech, while this case involves the creation of speech. But that should cut in favor of Elane Photography, rather than against: It seems to me that having to create speech, using your own creative abilities and judgments as an artist, musician, writer, or what have you, is an even deeper “foster[ing]” of “an idea [you might] find morally objectionable” — an even deeper intrusion on “individual freedom of mind” — than is simply having to displaying what is clearly the government’s message on a government-provided license plate.
3. Finally, for those who disagree, let me ask (as I did in my posts on the Human Rights Commission decision): Say you’re a freelance writer, who holds himself out as a business offering to perform a service. Someone tries to hire you to write materials — press releases, Web site text, and the like — for a same-sex marriage planning company, a Scientology book distribution company, a state branch of the Socialist party, a company that gets its income through legal prostitution, or whatever else. (Note that some jurisdictions ban discriminate based on “political affiliation” and “source of income” as well as religion, sexual orientation, and the like.)
May the government force you, on pain of damages liability, to write those materials, even if you would prefer not to because of the sexual orientation, religion, political affiliation, or whatever else to which the materials would be related? That’s what the trial court decision seems to hold. Or do you have a First Amendment right to choose which words you write and which you decline to write?
Hans Bader says:
To overcome the photographer’s freedom of religion and free speech rights, the New Mexico Human Rights Commission would need, among other things, to show a compelling interest in restricting her speech. But it cannot (indeed, it cannot even show a violation of the antidiscrimination statute, under a reasonable reading of the statute).
The only possible interest it could rely on is the state’s interest in eradicating sexual orientation discrimination.
But that interest is not compelling, for two reasons.
First, it cannot be treated as compelling for purposes of this case because the state of New Mexico itself discriminates based on sexual orientation in a number of contexts (not just in not treating civil-commitment ceremonies as being analogous to marriages, assuming arguendo that that is discrimination), so it is barred from arguing that eradicating discrimination based on sexual orientation is a compelling interest. That’s what the Supreme Court made clear in its Lukumi decision, where it held that a local government could not treat an important interest as compelling where it inconsistently failed to advance that interest, even when in contexts where doing so would have cost nothing in terms of First Amendment rights. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546–47 (1993) (“Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling”). (This point is developed at length in the briefs in two court cases, Thomas v. Anchorage Equal Rights Commission and Lutheran Church v. FCC.)
So holding Elane Photography liable can’t be justified under the strict scrutiny mandated by the First Amendment and the New Mexico Religious Freedom Restoration Act.
Second, eradicating sexual-orientation discrimination is simply not a compelling state interest outside the employment context. See Curran v. Mt. Diablo Council of Boy Scouts of America, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (boy scouts were protected by First Amendment freedom of expressive association against being forced by California public accommodation and gay-rights laws to include gay people as members and leaders, since being forced to do so did not serve a compelling state interest), aff’d, 952 P.2d 218 (Cal. 1998).
Moreover, there is an additional, alternative First Amendment defense that applies here, unrelated to freedom of religion: freedom from compelled speech. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).
The anti-discrimination statute is being applied by the Commission in a very peculiar way. (I say that as an attorney who used to help adjudicate discrimination cases at the U.S. Department of Education, Office for Civil Rights). And the First Amendment defense is straightforward.
Photography is expressive; most businesses (say, selling hot dogs) are not. Ruling in favor of the photographer is not only consistent with the statute (which forbids discrimination based on customers’ sexual orientation, not based on the ceremony they wish to capture on film), but even if that were not the case, ruling in favor of the photographer would not carve out a big exception to the statute’s reach or vitiate any important state interests.
Since the photography is expressive, the case should be governed by the U.S. Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), which held that a state’s gay-rights law and public-accommodation law could not be used to force an expressive activity (a parade, in that case) to embrace a message of support for gay causes, because doing that violated the First Amendment.
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December 16, 2009, 4:06 pmTerrivus says:
Prof. Volokh — assume that the New Mexico Supreme Court issued this exact same opinion. Do you think that the Supreme Court would grant cert to review it? Should it?
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December 16, 2009, 4:08 pmHans Bader says:
The trial court’s claim that religious-freedom guarantees like NMRFRA don’t apply to suits between private parties is utterly irrelevant to this case (the Human Rights Commission went after the photographer, not just private parties) and obviously wrong (the Supreme Court has often held that private parties can raise free speech or religious-freedom objections to lawsuits by private parties, see Hustler Magazine v. Falwell (1988) (private lawsuit for intentional infliction of emotional distress was barred by First Amendment), Boy Scouts v. Dale (private lawsuit for sexual orientation discrimination barred by First Amendment), and the same principle applies to state “human-rights” agencies, see Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995) (state agency could not fine employer for religious harassment based on offensive speech that was protected by state constitution’s religious-freedom guarantees)).
The court’s claim that there is less of an expressive interest at stake here than in the Supreme Court’s Hurley and Dale decisions is very ironic. Taking a photograph is deeply expressive, to the point where copyright law attaches to photographs as a matter of course. By contrast, the parade in Hurley did not take any position or express any view about homosexuality — it merely wished to steer clear of the issue — and the Boy Scouts in Dale were not directly prevented from expressing any view, yet the Supreme Court found that the far more attenuated expressive interests in those cases overrode state sexual-orientation discrimination bans akin to New Mexico’s.
The State of New Mexico’s position reaks of hypocrisy.
It is punishing a wedding photographer for refusing to photograph what is NOT a wedding, but a “commitment ceremony.” The State of New Mexico treats non-married “committed” couples as different from married couples for a host of purposes, belying any claim that they are legally analogous to marriages.
Yet, now the State of New Mexico, in the form of the Human Rights Commission, claims that the commitment ceremony IS akin to a wedding, and must be photographed as such — and any refusal counts as discrimination against gays.
Moreover, elsewhere, the State of New Mexico acts as if same-sex commitments are not analogous to straight ones, much less marriages, since the State itself bans gay marriage. Maybe the State should practice what it preaches and stop banning gay marriage.
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December 16, 2009, 4:11 pmSteve says:
You have a right to determine which words you write. You do not have a right to determine which clients you offer your services to, if you’re discriminating against a suspect class.
The photographer tried to get around this argument by saying, “We have no problem photographing gay people, as long as they’re marrying someone of the opposite sex!” The court correctly rejected this as absurd, no better than the argument in Loving v. Virginia that there is no race discrimination so long as everyone is free to marry someone of the same race.
If a freelance writer reserves the right to reject offensive topics (“I won’t write a pro-Nazi screed for you, sorry”) I don’t see the logic whereby they would be compelled to write on any particular topic.
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December 16, 2009, 4:14 pmCJColucci says:
Some years ago, Judge Easterbrook rejected a First Amendment compelled speech claim in a case involving a professor who was denied tenure because he exercised his right not to publish. He perished.
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December 16, 2009, 4:16 pmloki13 says:
Well, my pithy response to this would be– the best way to end all these discrimination suits is to stop discriminating. h/t Roberts. :)
I think Prof. Volokh does a thorough analysis. However, I also think the question is more thought-provoking than it might appear. In order to tease out the real issue (and get away from the tired debate about homosexuality), let’s view this from the persepctive of race, since we can all agree that racial discrimination is bad– right?
Two situations–
1. A black couple hires X catering company to cater their wedding. When X company finds out they’re black, they refuse to cater the wedding.
2. A black couple hires X celebrity baker to create a unique cake commemorating their wedding. When X celebrity baker finds out they’re black, he refuses to make the cake.
I think 1 and 2, without going into the legal issues, present somewhat different issues. In 1, you have a service normally performed at weddings that would be no different at this wedding BUT FOR the couple being black. In 2, you have an (arguably) artistic expression of the individual.
Is wedding photography more like 1 or 2? Clearly, it requires some skill and application of artistic sensibility– but so does cooking a meal for catering an event. *shrug* I don’t know about EV, but I’ve always viewed it as banal... but (to borrow from contracts) specific performance should be frowned upon; better the photographer announced up front their displeasure than do a substandard job.
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December 16, 2009, 4:23 pmMark N. says:
Is that actually true? If your job is an expressive one, I would think you do have the right to pick your clients based on who they are. In some states, as Prof. Volokh notes, political viewpoints are a suspect class, and yet a pamphlet writer may, I think, choose to offer services to members of one party and not members of another party, discriminating solely based on their party membership. Religion is also a suspect class in many states, and I would think a painter could choose to accept commissions only from, say, Catholics in good standing.
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December 16, 2009, 4:23 pmArthurKirkland says:
The ready solution to most of the problems addressed by Hans Bader seems to be for gays (perhaps with others who object to discrimination) to form a religion, placing themselves in a position to benefit from the “heads the religious claimant wins, tails the religious claimant also wins” arguments used by people who wish to engage in (or to avoid being the victim of) religion-based discrimination.
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December 16, 2009, 4:27 pmMari says:
Eugene — Assume New Mexico wants to promote a vibrant community of New Mexico photographers. At taxpayer expense, it creates a directory and website featuring NM photographers, and holds a contest awarding cash prizes to NM photographers who submit the best photos in various categories (such as wedding photography). But it excludes from the directory, website, and contest any photographer (like Elaine Huguenin) who discriminates on the basis of race, gender, religion or sexual orientation. So, the only difference is that Elaine is penalized with exclusion from a government forum instead of money damages. Do you have any constitutional problem with that? If so, how do you reconcile your answer with your posts on CLS v. Martinez? Thanks.
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December 16, 2009, 4:28 pmSteve says:
Religion is also a suspect class in many states, and I would think a painter could choose to accept commissions only from, say, Catholics in good standing.
Well, I don’t. “Oh, I don’t do business with Jews.” Seriously?
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December 16, 2009, 4:29 pmOff Kilter says:
I must say, as a practical matter, if I were in a SSM ceremony that I wanted commemorated on film, I wouldn’t want to employ the talents of someone who expressed disinterest in the job...
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December 16, 2009, 4:31 pmjer says:
The issue here seems to be whether “creative professional[s] whose services are available to the public” (e.g., photographers) are public accommodations.
To cite a few examples from the EEOC:
May a hotel refuse to rent rooms to a homosexual?
May a common carrier refuse to transport good for a homosexual client?
May a day care center refuse admission to the child of same-sex parents?
May a doctor’s office refuse to provide medical services to a homosexual?
Are creative professionals like any of these public accommodations, or are they something different?
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December 16, 2009, 4:32 pmAnthony says:
To what degree are wedding photos actually an expressive job? Also, is work for hire free expression anyway? Given that it tends to be taken as expressing the opinions of the [i]employer[/i], not the worker, it’s not obvious that restrictions on what you can say in work for hire have anything to do with free expression.
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December 16, 2009, 4:32 pmOff Kilter says:
Loki13: It’s interesting, but as a non-lawyer, I looked at the two choices very differently than you:
1. In case #1, if one catering company refuses you, on any grounds, it shouldn’t be too hard to replace them. You’re out little to nothing.
2. In case #2, if a celebrity pastry chef known for the uniqueness of his visionary work refuses you, he is almost by definition, irreplaceable. You’re out a lot.
I appreciate these may not be the factors the law uses in making a decision, but I suspect they’re the factors most people use. Even those who believe the celebrity chef has the absolute right to restrict his output and select his clients on any grounds desired would agree the couple turned down has lost a valuable option.
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December 16, 2009, 4:35 pmMark N. says:
You really think that a religious painter who paints mainly Catholic themes, is required to accept commissions from clients for paintings that they don’t believe in? If I paint Eastern Orthodox icons upon request, I must accept commissions from atheists? What about atheists who declare an intention to burn the icons upon purchase? Where do you draw the line in the required business dealings?
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December 16, 2009, 4:36 pmYankev says:
First, there is nothing in the record to suggest that the photographer was discriminating against a suspect class. Apart from turning down the job to photograph the commitment ceremony, is there any evidence that the defendant would have turned down a request to take the plaintiff’s portrait or to photograph a birthday party or some other activity? It seems a bit of a stretch to go from “we don’t photograph same sex weddings” to “we don’t any work for anyone who is not heterosexual.”
But even if there were evidence to suppport your accusation, go back to your speech analogy. Suppose you are a professional speech writer and someone asks you to write a speech passionately defending clitorectomy as a religious practice. By taking money for your speech writing, do you give up all right to choose your customer? By turning down the assignment, are you discriminating against Muslims (or subgroups of Muslims)? Is your refusal tantamount to saying that you do not want to do business with Muslims on the same basis as with non-Muslims?
Sorry, too thin. Sex and race are not the same thing, nor are sexual preference and race. The moral equivalence between racism and those who do not care to redefine marriage to include same sex unions has been endlessly debated at VC. The analogy is tiresome and unconvincing to anyone who is not already convinced.
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December 16, 2009, 4:38 pmJust Dropping By says:
But the photography service here isn’t really “freelance” work is it? To me that implies photographers who go out and shoot what they want to shoot and then try to sell the resulting photos. This is commissioned work — the photography service advertises that it’ll send a photographer to shoot photos for people who hire them. By offering to do commissioned work, the service is substantially surrendering its rights to artistic expression to the demand of its patrons.
Here’s another example: the real life musical Spring Awakening sells a limited number of tickets for each performance to patrons that allow them to sit on the stage where they become part of the action. Could the producers of the play announce that it’s their artistic vision that only white people will be allowed to buy those tickets? I can’t believe that would fly under current U.S. Supreme Court jurisdprudence.
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December 16, 2009, 4:43 pmDavid Schwartz says:
This is a great distinction in theory but one that is unworkable in practice. In any case, that would cut in favor of the photographer in this case. The photographer only wishes to photographs weddings.
So should the photographer be free not to photograph same-sex ceremonies or not? It seems that your arguments support the opposite view from the one you seem to be claiming they support.
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December 16, 2009, 4:47 pmYankev says:
Come back with that analogy after you find some evidence that the defendant refuses to do business with lesbians as opposed to simply refusing to photograph one type of event. “I don’t write Bar Mitzvah speeches” and “I don’t do business with Jews” are two very different statements.
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December 16, 2009, 4:48 pmtexasfox82 says:
i don’t have time to read any of the relevant cases mentioned, so maybe someone can explain how the government can tell you who you may or may not render services to. I am going to assume that most photographers are self employed. If i am such a photographer, how is it constitutional that i can forced by the government to provide my services to someone, or a group, with which i have a difference of opinion? I can begin to see how it is wrong for a government not discriminate, but to force its citizens to go against their personal beliefs is anathema to me.
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December 16, 2009, 4:50 pmGuest12345 says:
It’s expressive to the same degree that a song writer is expressive when hired to “write a good song about springtime.” Or a painter hired to “paint a picture of the bay.” I suspect that anyone who can’t see that photography, even wedding photography, is highly expressive and creative, is being intentionally obtuse.
PS — Isn’t OperationCounterstrike’s comment in the previous thread a bit over the line?
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December 16, 2009, 4:51 pmptt says:
How about, “I specialize in coming-of-age speeches but don’t write Bar Mitzvah speeches” and “I don’t do business with Jews”. Are those two very different statements?
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December 16, 2009, 4:55 pmJerome says:
@ Yankev:
The fact that the analogy is tired, by your calculation, does not make it inaccurate. The fact that you find it unconvincing does not make it inaccurate. Further, asserting that it is only convincing to those that are already convinced is something of a truism — if an argument is convincing, then those exposed to it will be convinced. Merely because some people are unconvinced does not make the analogy inaccurate.
The attempt to frame discrimination based on sexual orientation as the same as racism (in legal and moral senses), is not the same as “moral equivalence” between racism on the one hand and the redefinition of marriage to include same sex unions. Discrimination against bi-racial couples who wish to marry and homosexual couples who wish to marry IS the same thing, in legal and moral senses. The redefinition of marriage is ancillary to the desire to equalize homosexuals and heterosexuals — it is not the primary goal.
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December 16, 2009, 4:55 pmSteve says:
You really think that a religious painter who paints mainly Catholic themes, is required to accept commissions from clients for paintings that they don’t believe in?
No, but that’s 180 degrees different from what you said. You said that it would be okay for the painter to refuse assignments from non-Catholics, not that it would be okay for the painter to refuse to paint a different subject matter than what he specializes in. Two entirely separate things.
Come back with that analogy after you find some evidence that the defendant refuses to do business with lesbians as opposed to simply refusing to photograph one type of event.
It wasn’t an analogy, it was a response to someone’s argument that you apparently didn’t read.
The photographer only wishes to photographs weddings.
I actually think Hans Bader had a sort of point when he said that it’s weak for New Mexico to ban same-sex marriage on the one hand, and to insist that it’s discrimination to treat same-sex ceremonies differently from weddings on the other hand. It’s like the Human Rights Commission (which, I’m just guessing, is probably pretty liberal on these issues) deciding to ignore the same-sex marriage ban because it doesn’t like it.
That said, I must have missed the vast body of evidence that this photographer routinely refused to photograph engagement parties and the like. Basically, if you’ll do just about any job but you draw the line at same-sex commitment ceremonies, it’s hard to argue that you’re completely indifferent as to the sexual orientation of the client. Additionally, even if we were talking about a state where same-sex marriage is legal, I suspect most people who criticize this decision would have the exact same objections to it.
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December 16, 2009, 5:02 pmLaura(southernxyl) says:
To the extent that you don’t go down to the street corner and hire a day laborer to point a camera and click the button.
Translation: “Everybody see things my way, and we’ll have no more trouble!”
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December 16, 2009, 5:03 pmMike S. says:
Orthodox Jews believe that polytheism is forbidden to both Jews and Gentiles. Could a Jewish photographer refuse to photograph a pagan couple’s wedding? Many Orthodox Jews will not enter a Catholic (or other) Church where there are statues represnting the deity; can such a photographer be compelled to enter such a church in violation his religious beliefs to photograph a wedding?
Is there any sense in which it makes sense to distinguish between refusing to do business with gays (or Jews, or liberals) and refusing to photgraph specific ceremonies performed by or for people in that class. If Elane photography is willing to photograph gay birthday parties, adoption ceremonies, grtaduations and the like would that be any different, either morally or legally.
It seems to me that these are difficult issues not likely to be addressed well by simple slogans about equal protection or religious freedom.
Also, how far does it make sense to push public accomodation laws beyond their original context in battling Jim Crow laws and the racial and religious discrimination that once permeated the hotel industry in large parts of the US. Both in terms of what constitutes a public accomadation and what classes are protected.
I am fairly sure that there is no history of pervasive anti-gay discrimination by photographers.
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December 16, 2009, 5:06 pmYankev says:
Yes. Just like writing a Christian sermon is very different from writing a drasha or even a simple d’var Torah. The mere fact that you can compare the Bar Mitzvah to a generic “coming of age ceremony” shows that you know very little about the Jewish religion. A Bar Mitzvah speech (outside of Hollywood films that demean Jews, anyway, whether made by non-Jews or by ignorant and uncommitted Jews) should demonstrate basic or even advanced familiarity with that week’s Torah portion and its major themes as explicated by the commentators and the Talmud, and should express an underlying commitment to Jewish life, law and learning.
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December 16, 2009, 5:13 pmYankev says:
It is the inaccuracy that makes it tired.
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December 16, 2009, 5:13 pmYankev says:
Homosexuals do not wish to marry. Marriage involves a union between people of opposite sexes. That is not the same as a union between people of the same sex.
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December 16, 2009, 5:16 pmYankev says:
Precisely. Again, no one has pointed to any evidence that the photographer would have turned down a gay customer’s request to do portratis, or to photograph a birthday party, company picnic or what have you. Suspiscion, innuendo and accusations of bigotry are not the same as evidence.
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December 16, 2009, 5:18 pmChris Travers says:
Steve:
Question: If I start a PR firm and offer, to the public PR services designed to further “Traditional Christian Family Values and Traditional Views on Marriage,” and I offer standardized service packages, does that give the state the right to tell me I have to endorse gay marriage?
FWIW, I think expressive elements should be entirely beyond the reach of antidiscrimination laws. One can make an argument that freedom of association is reduced in these cases, but starting a bar and grill called “The Klansman,” decorating the place with photos of lynchings, and advertising “Now serving niggers too!” should be protected under the First Amendment even though it would be a policy designed solely to ensure that black patrons could not enjoy themselves in such an establishment.
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December 16, 2009, 5:22 pmDilan Esper says:
I think that Professor Volokh raises fair points about compelling speech. That said, I would probably resolve this case on the ground that wedding photography isn’t sufficiently expressive and is basically a ministerial service. I would preserve, however, the right of people engaging in actual creative expression to exercise viewpoint discrimination.
That said, I want to emphatically reject, in the most uncertain terms, Hans Bader’s offensive suggestion that elimination of sexual orientation discrimination is anything other than the most compelling of interests. Indeed, for the life of me, I can’t imagine any reasonable person in this day and age arguing that eliminating discrimination against gays and lesbians simply isn’t very important.
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December 16, 2009, 5:25 pmChris Travers says:
Just dropping by:
So should The Right-Wing Christian PR Firm(TM) be required to provide the same PR services for the Church of Satan that they might be willing to provide to the Christian Broadcasting Company?
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December 16, 2009, 5:32 pmSteve says:
Homosexuals do not wish to marry. Marriage involves a union between people of opposite sexes. That is not the same as a union between people of the same sex.
Talk about an argument that is tired.
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December 16, 2009, 5:34 pmSteve says:
Question: If I start a PR firm and offer, to the public PR services designed to further “Traditional Christian Family Values and Traditional Views on Marriage,” and I offer standardized service packages, does that give the state the right to tell me I have to endorse gay marriage?
No. You just can’t discriminate against clients based on their membership in a suspect class. At least in my view, though, you can certainly control your message.
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December 16, 2009, 5:35 pmLaura(southernxyl) says:
Dilan, I suspect that you are engaging in circular reasoning here. People (not me) may have very carefully thought-out reasons why they want to do things that you would regard as discriminatory toward gays and lesbians, and you would not regard those people as being reasonable.
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December 16, 2009, 5:35 pmArrowSmith says:
I agree with being consistent in the law. If a hotel can’t deny service to anyone then a photographer shouldn’t be able to either. If the photographer gets freedom of association, then that’s a special exemption that is patently unfair. Either we grant freedom of association for all, or none.
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December 16, 2009, 5:38 pmDilan Esper says:
Dilan, I suspect that you are engaging in circular reasoning here. People (not me) may have very carefully thought-out reasons why they want to do things that you would regard as discriminatory toward gays and lesbians, and you would not regard those people as being reasonable.
Actually, if there’s one thing about discrimination against gays and lesbians, it’s that it is the polar opposite of “carefully thought out”. It’s no more thought out than a 7 year old on a playground saying “ickk! he’s a queer!”.
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December 16, 2009, 5:39 pmRandy says:
“I’ve heard some people argue that wedding photography (as opposed to artistic expression) isn’t really expression, because it’s too banal and straightforward. I doubt that this is so, but in any event it’s clear that the court’s reasoning applies without regard to the supposed banality of the expressive work.”
Sometimes, a bit of courtesy and consideration can prevent expensive litigation and anxiety.
This reasoning would basically lead to every one claiming their work is expressive. Just about anything is considered ‘expressive’ under 1st Amendment law, and I would suspect that if this were the loophole to getting around nondiscrimination laws, even my plumber would find something ‘expressive’ about his work.
I agree there is something troubling about forcing people to do work for which they are politically or religiously opposed. Perhaps if Elaine had merely said, “Sorry dears, we aren’t terribly experienced with same sex weddings, but the lovely gals at Stritch’s do fabulous work and would love to do your wedding. Tell ‘em Elaine send ya.”
Then, at least, the wedding couple have a viable option, were treated with respect, and everyone’s reputation would be intact.
(and yes, the couple should have just moved on to another photographer and found one more accomodating, and save us all this trouble)
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December 16, 2009, 5:52 pmYankev says:
A convincing argument is one that is persuasive to someone who is undecided, and that may convince the persuaded to change their minds. I have found the race analogy to do neither. Those who are already convinced find the argument irrefutable, and those who are not already convinced are seldom convinced by exposure to it.
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December 16, 2009, 5:56 pmrequired says:
Well the court in this case gets around your objection by pointing out that they are not dictating the content of the photographs taken. Thus if one is commissioned to write a piece advocating clitorectomy, one does not have to actually advocate clitorectomy, as that would be compelled speech. Then you would only be violating the federal honest services law and depending on jurisdiction fraud charges. But your 1st amendment rights would not be abridged.
As for
this is absolutely true and the law is consistent that all are allowed to deny services to anyone for any reason, that what freedom of association is all about. There is a limited exception to the general rule on the basis of compelling state interests, but unless the state can show such an interest one is perfectly free to deny services to anyone for any reason. I agree that the exception on the basis of compelling state interests in intrinsically unfair but it is justified as being necessary.
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December 16, 2009, 5:57 pmloki13 says:
Off Kilter–
Wow. So many threads on this already. My thought provoking wasn’t perfect, in that most people don’t equate baking a cake (no matter how artistically done) to the first am., but I was trying to tease out the difference between public services vs. personal services, and also between artistic expression and “just doing a job”. Problem is, there’s some things that clearly fall on one side or the other, and some things that seem to fall in a nebulous category– like wedding photography.
I agree with your point about which is harder to replace, but that was neither here nor there for my example. ;)
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December 16, 2009, 6:04 pmjellis58 says:
I found this line: “plaintiff’s final message is not its own. Instead, Plaintiff is conveying its client’s message of a day well spent. As Defendant Willock states, Plaintiff is really a conduit or an agent for its clients.” pretty incredible. As you pointed out, the very problem is Wooley was that the jehova’s witness was being required to convey someone elses (the state of new hampshire) message and act as a conduit or an agent.
I also think its pretty clear that the photography is speech and conveys a message. Its my understanding that most wedding photographers think of themselves as artists and the point of their art is to display a happy and beautiful event in a way that express to the world the happiness and beauty of the wedding. But its the plaintiff’s belief that this particular type of wedding is not something to be celebrated.
Heres hoping for a speedy reversal.
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December 16, 2009, 6:05 pmSteve says:
When I see a wedding photograph, the last thing I would think is “oh here’s a wedding photographer conveying a message of approval.”
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December 16, 2009, 6:24 pmArthurKirkland says:
If a bigot did not claim that the refusal to photograph a same-sex ceremony were religious, would or should the claim of entitlement to enforce the bigotry differ from a religion-based claim?
Would a state be entitled to require the bigot to post a sign warning potential transactors that not all prospective customers are welcome?
If the photographer signs a contract, then determines that the ceremony doesn’t meet the photographer’s moral standard, should the jilted couple be entitled to recovery for breach of contract?
Would a photographer be entitled to reject an evangelical Christian couple, for conflict with the photographer’s religious beliefs (a “false church” claim) or simply because the photographer finds evangelical Christians morally substandard?
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December 16, 2009, 6:48 pmChris Travers says:
Steve:
And this applies to art-as-speech (in the case of commissioned photography), right?
The artist wants to control a message that “marriage is between people of opposite sex” and that is the artist’s right, is it not?
Or why would a PR firm be different?
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December 16, 2009, 6:59 pmChris Travers says:
Dilan:
It certainly is important, but it is not so important that we can or should run roughshod over freedom of expression to make it happen.
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December 16, 2009, 7:00 pmSteve says:
The artist wants to control a message that “marriage is between people of opposite sex” and that is the artist’s right, is it not?
I think it is absurd to claim that a wedding photograph conveys a message that marriage is between people of opposite sex. Do you think you can tell by looking at my wedding photographs whether the photographer supports same-sex marriage or not?
You might as well defend a restaurant’s refusal to serve black people by arguing that the chef wants to convey the message that “quiche is only for white people.” I mean, if no one can perceive the message other than the person who claims to be expressing it, it’s not really a message.
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December 16, 2009, 7:16 pmAnthony says:
It’s creative. That doesn’t make it expressive. Expressive work indicates that the artist is saying something, and that’s not what you’re doing — you’re creating a professional product to state someone elses opinion.
That makes it professional, not expressive. I don’t go down to the street corner to hire a plumber either, and you’ll have trouble convincing me that plumbing is expressive work.
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December 16, 2009, 7:50 pmLaura(southernxyl) says:
Dilan, the Bible speaks very plainly against same-sex behavior. I tend to lean towards the view that this is one of those areas where the culture of the day got mixed up in the message (like the part about women needing to not braid their hair) but there are those who don’t see it that way.
So are you unaware that other people have entire philosophies that don’t seem to intersect with yours at all? Or are you lumping everyone who isn’t like you in with the 7-year-olds? “Thinking” equals “agreeing with Dilan”, is that it? Not terribly mature, if so.
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December 16, 2009, 7:51 pmLaura(southernxyl) says:
Anthony, if the first amendment covers pornography and nude dancing, I’ll be danged if I see how it can not cover wedding photography.
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December 16, 2009, 7:53 pmPintler says:
I think people are over board on comparing e.g. refusing service to blacks in the Jim Crow south and this case.
These kinds of laws (affirmative action, discrimination bans, ...) are big hammers that should be used to solve big problems: a shotgun is not an appropriate way to deal with a pesky fly.
If you were a black traveling through the Jim Crow south, where were you supposed to stay? Even if you slept in your car at a rest stop some cracker sheriff would likely roust you or worse. The treatment of blacks in the Jim Crow era was so reprehensible that using a very big hammer was entirely appropriate.
This case does not remotely approach the same level — I suspect there are other suitable photographers readily available, you can ask a friend to bring a camera (which is what we did), you have time to search for a different photographer, etc. A black needing to find a place to stay while driving through Mississippi in 1960 didn’t have any of those options.
You can argue that we should use the law to right even minor wrongs — you can sue in small claims for a $50 debt, after all — but I think these laws are not analogous, because they come with costs as well as benefits, as when a restaurant owner would like to suggest an unpleasant customer not return, or an employer wants to fire an unproductive employee, but they refrain for fear of a discrimination accusation.
If I’m a Rastafarian refused service by the only barber in my small Kansas town because they don’t like non Christian immigrant long haired hippie freaks, I should just drive to the next town. If Rastafarians are universally treated as an abject underclass, then it’s time to get out the big hammer, but not for the occasional isolated case.
[Neither my wife of I are religious, but in deference to our family hired a minister to officiate at our wedding — perhaps a Unitarian, I forget. My wife drafted a nice, non religious service, which he agreed to use. Once we were at the altar (figuratively speaking, it was outdoors) he launched into a long winded religious service. I don’t know if he decided to change things, or just slipped into old habit; he was pretty dotty. We chuckle about it still. Maybe I should have sicced The Law onto him!]
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December 16, 2009, 7:54 pmPintler says:
A quick followup to add: for an example of discrimination against gays that is worth a big hammer: when a partner is in the ER and the hospital shuts out the partner. That’s like the Jim Crow black looking for a hotel (or even worse) — it’s time critical and high stakes, especially if medical decisions need to be made. I’m not sure if the blame goes to bigotry or HIPAA, but I’m all for sending in the National Guard to fix that one :-).
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December 16, 2009, 8:11 pmChris Travers says:
ArthurKirkland:
1) My reading of the ruling is that announcing that a certain class of customer is not welcome would be illegal in New Mexico. For example, I am left wondering whether merely calling a bar and grill “The Klansman” and advertising “Now serving niggers too!” would be actionable under the law.
2) Absolutely, especially of the contract was violated in a disruptive way.
3) I would restrict my sense not to who service is offered to, but rather to artistic components. If the individual was willing to photograph the same couple in an outdoor setting, the couple shouldn’t be able to sue because the photographer wouldn’t do the shot inside a “false church.”
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December 16, 2009, 8:18 pmChris Travers says:
Pintler:
I would argue that as long as expressive control is not at issue, businesses open to the public should be open to the public.
A lot of folks come back to the question of whether cake decorators should be required to accomodate gay/interracial/black weddings. I would argue simply that expressive control covers how the cake can be decorated, not who it can be sold to, just as a professional photographer selling artistic pieces at a public auction might not be free to forbid gays from bidding on them but might be able to say “I won’t shoot pictures of gay weddings.”
So, “all figurines on the top of the cake will be of white folk because we just don’t like colored folk around here” would seem to be ok in my book. However, refusing to deliver a cake decorated in such a manner to a black or interracial wedding would not.
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December 16, 2009, 8:24 pmChris Travers says:
(Similarly, if the photographer wants to say “Sure, I will shoot photos of your same-sex wedding but it will have to portray you as if you were getting married to someone of the opposite sex” that would similarly seem to be ok in my book.)
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December 16, 2009, 8:25 pmChris Travers says:
Anthony:
It is expressive to the point where it can be subject to copyright law.
If it cannot be copyrighted, it is not sufficiently expressive. Is that a good enough distinction?
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December 16, 2009, 8:27 pmAnthony says:
If it’s work for hire (which it might not be, but probably is), copyright is owned by the employer. I’m not sure I approve of the law in the first place, but I don’t see any reason to consider a photographer to be any different from any other sort of professional contractor (say, a caterer, which is probably about as creative work as the photography) you might have at a wedding.
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December 16, 2009, 8:29 pmLaura(southernxyl) says:
Every instance I know of where people have engaged professional photographers, the photographer retains rights to the originals and people are expected to purchase all of their prints from them. I’m sure other arrangements can be had, but this is the default one.
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December 16, 2009, 8:34 pmChris Travers says:
Dilan:
While I am a supporter of SSM, I recognize that there are many people with reasonably well thought out oppositions to it. Some of these are absolute and go to certain functions that marriage has traditionally had in many cultures (such as protecting childrearing arrangements between procreating couples). Remember that the word for “marriage” in Old Irish was used for ANY sexual arrangement from which children could result and even included various criminal marriages such as rape and taking advantage of a woman’s intoxication. Many such people do not think that marriage should be thought of as an arrangement of love and commitment but rather of procreation and support.
Others oppose it conditionally, simply demanding incremental change and a conservation of tradition. I am actually very sympathetic to this argument even though I have come to reject it. In most other areas of culture, this is actually the approach I take. I reject it with regard to SSM for careful reasons.
I do agree that a lot of anti-SSM rhetoric is confused, contradictory, or worse. However, I would suggest that it isn’t necessarily the best practice to assume that all political opponents are mindless, and resorting to 7th grade mentalities.
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jellis58 says:
Anthony,
Isnt this the problem; that shes being forced to create a work conveying something she disagrees with (that this gay marriage is a happy event)? How is being forced to create something that states someone elses opinion not compelled speech? How is this different from Wooley? Im honestly quite flabbergasted that this is as controversial as it is given my initial reaction of “what was the court smoking” when I read this post.
Would the people defending the result in this case feel the same way if it was a black photographer being forced to photograph a KKK initiation ceremony that had a pro white supremacy theme and he was asked to use his skills as a photographer to depict the ceremony in a positive light? or would the first amendment protect the photographers right to say no? if it does, how are the two cases different?
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December 16, 2009, 8:48 pmptt says:
Yankev:
Perhaps I was not clear. When I said “Bar Mitzvah speeches” I was referring to any generic, congratulatory speech anyone might make at the ceremony, not the prescribed, ceremonial speeches. I’ve seen such speeches made with my own eyes, but maybe the Jewish speakers were as ignorant of Jewish tradition as I am...
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December 16, 2009, 9:10 pmDilan Esper says:
It certainly is important, but it is not so important that we can or should run roughshod over freedom of expression to make it happen.
Recognizing something as a “compelling state interest” does not allow the government to “run roughshod” over free expression. E.g., winning wars is a compelling state interest, but that doesn’t mean the government gets to shut down war protests.
You still have to show that the regulation at issue is necessary to further the compelling state interest and that there are no less restrictive alternatives that would do it.
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December 16, 2009, 9:40 pmDilan Esper says:
Dilan, the Bible speaks very plainly against same-sex behavior.
The bible says nothing at all about lesbianism, and Jesus preached that we should love sinners and that he who has not sinned shall cast the first stone.
Religious folks pour their own prejudices into the Bible, and the Bible is vague enough that you can find support for anything you want in there.
As I said, the basis of hating gays and lesbians is “iccck”, not the Bible.
(In any event, reliance on the Bible doesn’t meet the definition of “carefully thought out”. People who carefully think things out don’t rely on completely unreliable texts containing fairy tales.)
So are you unaware that other people have entire philosophies that don’t seem to intersect with yours at all?
I wouldn’t deign to put the gut reactions of ignorant homophobic bigots in the same category with Kant and Hume. So no, there aren’t “philosophies” that endorse homophobia. There are gut instincts that do it, and that’s quite different.
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December 16, 2009, 9:44 pmDilan Esper says:
Anthony, if the first amendment covers pornography and nude dancing, I’ll be danged if I see how it can not cover wedding photography.
The First Amendment barely covers nude dancing (sorry about the pun). Lots of regulations and restrictions are permitted because nude dancing has been found to be on the outer orbit of the First Amendment precisely because it isn’t very expressive.
Wedding photography should entitled to about the same amount of protection as nude dancing, actually. It’s mostly conduct with very little expression.
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December 16, 2009, 9:46 pmRandy says:
pintler: “A quick followup to add: for an example of discrimination against gays that is worth a big hammer: when a partner is in the ER and the hospital shuts out the partner.”
Or won’t allow a gay man to bury his dead partner, as was recently the case in Providence, RI.
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December 16, 2009, 9:47 pmmischief says:
Only if you come up with a tenet for this religion that compels you to hire people who oppose your sexual practices.
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December 16, 2009, 11:53 pmBrian K says:
You hit the nail on the head as to why the whole 1st amendment argument from conservatives rings so hollow. if you look at the totality of their (generalized) beliefs, it boils down to little more than “the 1st amendment protects what i think it should”. nudity? nope. anything that they believe to be offensive? nope. vulgarity? nope. drugs? nope. bigotry? you betcha, especially if it can be dressed up in religious sounding terms.
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December 17, 2009, 12:11 amGuest12345 says:
This is an idiotic statement. Wedding photography is just photo journalism writ small. The photographer is tasked with identifying the mood and feeling of an event and then using pictures to tell the story of the day. Sure the story was requested by someone else, but none the less it’s the expression of the photographer.
Claiming that there is nothing expressive about wedding photography is effectively the same as saying there is nothing expressive about this poem, for example.
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December 17, 2009, 2:13 amDavid Nieporent says:
I get it: ministerial service.
Actually, it’s precisely because it’s “this day and age” that it isn’t. In the 1960s, racial discrimination was so severe and pervasive that it might have made sense to argue that eliminating private racial discrimination was a compelling interest. But there is no similar situation now, not with respect to gays and lesbians, not with respect to race.
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December 17, 2009, 7:48 amDavid Nieporent says:
It seems odd to use the violation of one person’s rights as an argument that it’s more “fair” to violate another person’s rights. But in any case, we’re not talking about freedom of association here; we’re talking about freedom of expression.
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December 17, 2009, 8:27 amYankev says:
Yes, that’s how Kant and Voltaire viewed Judaism as well. As did any number of Roman luminaries and for that matter Marx. So you have lots of company.
A humble tip: If in future you care to go beyond name calling and actually attempt to persuade anyone who adheres to that gut instinct non-philosophy, citing Jesus is not likely to get you very far.
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December 17, 2009, 10:22 amA. Criminal says:
My friend down at MiniTru/Propdep says that these individuals could have met their legal obligation to act as the state’s agents by taking out-of-focus pictures of people’s feet.
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December 17, 2009, 11:33 amShane says:
That might be. But 2 professional plumbers will pretty much do the same work and produce the same result. Two professional photographers will make different expressive decisions. They will decide on lighting, depth of field, framing, and post-processing. Even if they own exactly the same equipment, and have exactly the same technical skills, they will have different expressive preferences.
I think this is a terrible decision, even if I find Elane Huguenin’s personal views abhorrent. I could see an argument in favor of the court’s decision if it were merely ordinary studio portraits in some kind of mass-market photography studio, but even in such a case I wouldn’t be sure.
Either way, why would someone WANT to hire a wedding photographer who doesn’t approve of the wedding? I fail to see how this is a victory for anybody.
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December 17, 2009, 12:46 pmDilan Esper says:
Yes, that’s how Kant and Voltaire viewed Judaism as well
Judaism is a religion, not a philosophy.
I realize that traditionally there is some overlap between the two, but the better practice is not to confuse the pursuit of truth (the goal of philosophy) with evidence-free speculation about supernatural beings (the goal of religion).
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December 17, 2009, 1:49 pmmuggers says:
It’s not a religious thing. Those who agree with this decision could not abide all the logical legal outcomes. Having said that, it would be a lot easier if the states could manage these things for themselves.
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December 17, 2009, 1:53 pmDennis N says:
This and Shane’s final paragraph above, pretty much sum up the dilemma for me. Once Elaine Huguenin express unease at photographing the wedding, what kind of idiot would want her within a thousand yards of the event? If you can’t use someone, e.g. you don’t trust that they will do good work, then their refusing to work for you is no loss to you. It’s would be almost as if a brick mason refused to work on my house, which has no brick in it.
In this context, and despite its constitutional merits, the whole suit is simply vexatious.
It falls into the “you can’t get blood from a stone” category.
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December 17, 2009, 1:54 pmChris Travers says:
Dilan Esper:
Which is Hinduism?
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December 17, 2009, 3:27 pmChris Travers says:
Dilan Esper:
Thomas Aquinas is generally considered the foremost Medieval philosopher and he certainly saw homosexuality is very dangerous.
I generally think that Nietzsche’s criticism of philosophy, that it tells one more about the philosopher than about the area of question, to be rather valid (even if he doesn’t replace it with anything). I thus disagree generally with your distinction between philosophy and speculation.
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December 17, 2009, 3:34 pmDilan Esper says:
Which is Hinduism?
A religion.
Thomas Aquinas is generally considered the foremost Medieval philosopher and he certainly saw homosexuality is very dangerous.
Aquinas was one of the people I was referring to when I referred to the traditional overlap between religion and philosophy.
That said, any arguments that a philosopher makes that involve supernatural claims without evidence are not a part of philosophy, they are a part of religion. I can remember my undergraduate philosophy professor’s disquisition on the difference between the God of the believer and the God of the philosopher (which included the line “God is not George Burns”).
Basically, if you are positing God for the sake of argument without asserting that She really exists, you are engaged in philosophy. If you are doing anything more than that, you aren’t interested in the truth anymore and are into the realm of religion.
But having said all that, I’d also note something else about religion especially. Religion festers in ignorant times. The more we know, the less we need Gods to explain things.
Aquinas and the other Christians who condemned gays and lesbians and endorsed homophobia lived in very different times and knew next to nothing about human sexuality. Now we know better, just as religious justifications for slavery and male supremacy haven’t held up very well.
A lot of the “thinking” of religious folks in the past consisted of expressing their prejudices and then making up some reason that God supposedly commanded them. Thankfully, we’re past that, although some folks aren’t.
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December 17, 2009, 5:08 pmYankev says:
Did anyone else see the Sopranos episode where Tony’s disgruntled cousin took photos of Tony’s father-in-law’s birthday party? The candid shots were not pretty.
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December 17, 2009, 5:37 pmYankev says:
A statement that I suspect both the philosopher and the believer can agree on wholeheartedly.
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December 17, 2009, 5:39 pmChris Travers says:
Dilan:
In what way does Hinduism rest on speculation without evidence about the nature of the supernatural?
(I am not even sure one can argue that Hinduism requires belief or can even be seen as a system of belief. It looks more like a cultural philosophy to me.)
And would Buddhism be different? If so, how?
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December 17, 2009, 5:48 pmChris Travers says:
One comment from the original post:
Some businesses I have done business in the past with have been known to refuse to do business with customers based on source of income. For example, they might refuse to provide application development or tech support to pornography-related businesses.
Me? I might refuse to do work due customer character, but stupid rules on behalf of other businesses will certainly land me more work.
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December 17, 2009, 5:58 pmChris Travers says:
BTW, I know Hans Bader and I are usually on opposite sides of arguments but I think his analysis on this issue is quite insightful and definitely should be contemplated.
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December 18, 2009, 1:35 amLymis says:
I think we can safely discount as meaningful any part of the “they could just get someone else to to the photography” in terms of the legality of the refusal.
If only one hotel in a strip of dozens refuses to rent rooms to black people, it is meaningless that all they have to do is go next door. So is the fact that, having found that they don’t want to rent to them they wouldn’t want to stay in that hotel in the first place. It is still illegal discrimination.
It seems to me that this is far more like the fuzzy edge in public accommodation that allows a private family renting a room in their home to discriminate in ways that an apartment complex cannot. Where that line falls, and how to clearly define it in the law is a different question.
I think it would absolutely be wrong for a walk-in photography studio (like at a superstore or shopping mall) to refuse to take pictures simply based on perceived sexual orientation. If a gay couple walks in and wants the standard photo package, they should not be refused. Same for race or religion. And that is even if they tell the photographer that it will be used as their engagement photo, or such.
On the other hand, something like this, where the photographer has to attend the event, make creative decisions, direct the action, and so on, should have more leeway for the photographer to be able to decline. The fact that I find her choice noxious is immaterial.
This is definitely a fuzzy edge area. I think it is safe to say that a photographer “specializing in pet photos” would be out of line in refusing to photograph the cat of a black family, or an atheist family. On the other hand, the same photographer should be completely justified in refusing to photograph someone strangling their cat (or simulating it), or even photographing a legal vet-conducted cat euthanization. The claim that “it’s still a photo of a pet” shouldn’t apply.
Like it or not, some people see same-sex marriage as abhorrent and evil, and threatening to society. And they have the right to hold that opinion.
I don’t think a printer should be able to refuse to print standard wedding invitations for a gay couple, but that a graphic designer should be able to refuse to do a custom graphic for them. I don’t think a development lab should be able to refuse to print and sell the photographs of a same-sex wedding, but that the photographer should be able to decline to take them.
I think the flaw is probably in the law.
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December 18, 2009, 4:15 pmMalcolm Smith says:
It’s perfectly clear, from reading sites such as this, that in America, the lunatics are in charge of the asulum. It’s also another good example why we in Australia have never permitted a Bill of Rights. When people originally talked about freedom of speech, they were thinking predominantly of the reporting of news and the expression of opinions — the two forms of speech which are essential to realistic decision making in a democratic society. “Expressive acts”, such as the production of photos, paintings, novels, advertising and the like are marketed items. There is a case that governments should keep their hands off them as much as possible, but let us not pretend that they are in any way necessary for democracy.
However, there is one extra freedom that is fundamental, and that is the right not to be forced to assist in, or the spread of, activities or opinions with which one disagrees. (I believe Thomas Jefferson made a statement to that effect.) It is outrageous, and a clear violation of fundamental rights that a photographer, or anybody else, should be forced to assist in a same sex ceremony — or any other activity he disapproves of.
If this means clawing back much “anti-discrimation” laws, so much the better. The vast expansion of these laws have been a major restriction on citizens’ rights
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December 20, 2009, 12:07 amPatriot Henry says:
How is that out of line? Having poor tastes, manners, character, and business skills isn’t a crime.
The person who needlessly discriminates against customers loses the sale, future sales, and the word of mouth advertising that could have been gained by serving that customer well. In addition there would be considerable negative publicity.
Slavery is not the solution to stupidity.
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December 20, 2009, 12:40 pmDavid Armor says:
If you paint Catholic themes, you must accept commissions from atheists (Jews, Baptists, etc.) who want Catholic themes painted. If you photograph weddings, you must accept commissions from heterosexuals or homosexuals who want a wedding photographed.
Note — just because marriage is not a civilly available institution in NM, that doesn’t mean that same-sex couples cannot have weddings. Weddings are a ceremony. So yes, a wedding photographer should not be able to discriminate between classes of protected clients when it comes to photographing their weddings.
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January 17, 2010, 3:49 pmDavid Armor says:
It’s out of line if it’s against New Mexico law. Which discriminating on the grounds of sexual orientation (just like race, religion) is. So yes, it is against the law.
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