Patriot Henry:
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.

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.

Mark N.:
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?

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.

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.

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.

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.

(Note that some jurisdictions ban discriminate based on “political affiliation” and “source of income” as well as religion, sexual orientation, and the like.)

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.

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?

Dilan Esper: 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”).

A statement that I suspect both the philosopher and the believer can agree on wholeheartedly.

Dennis N: Once Elaine Huguenin express unease at photographing the wedding, what kind of idiot would want her within a thousand yards of the event?

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.

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.

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.

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).

Which is Hinduism?

A. Criminal: 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.

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.

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).

Anthony: 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.

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.

Dilan Esper: 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.

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.

ArrowSmith: 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.

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.

Dilan Esper: 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 get it: 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.

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.

Dilan Esper: Wedding photography should entitled to about the same amount of protection as nude dancing, actually. It’s mostly conduct with very little expression.

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.

Dilan Esper: 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.

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.

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.

Only if you come up with a tenet for this religion that compels you to hire people who oppose your sexual practices.

Or won’t allow a gay man to bury his dead partner, as was recently the case in Providence, RI.

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.

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.

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.

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.

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…

Anthony: 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.

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?

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.

If it’s work for hire (which it might not be, but probably is), copyright is owned by the employer.

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.