The case is Elane Photography, LLC v. Willock, and I blogged about it here, when it was being considered by the New Mexico Human Rights Commission. The decision was handed down last Friday, but the opinion wasn’t distributed until yesterday. I hope to blog more about it today, but here’s my analysis from last year:
Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane’s work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock’s same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney’s fees and costs....[The order rests] on two interpretations of state law: (1) This sort of photography company constitutes a “public accommodation,” defined by state law “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.” (2) A refusal to photograph a same-sex commitment ceremony constitutes sexual orientation discrimination, which New Mexico law forbids. These may or may not be sensible interpretations of the statutory text. But the result seems to me to likely violate the First Amendment (though there’s no precedent precisely on point).
[1. Compelled Speech.] Photography is an art, and Huguenin is an artist. It may not be high art, but it embodies a wide range of artistic choices (especially since she says she takes a “photojournalist” approach, rather than just doing normal staged photos). And though she sells the art to its subjects, that is of course part of a long and continuing tradition in the arts, including painting and sculpture, as well as photography. Certainly many of the works protected by the First Amendment (books, newspapers, movies, and the like) were created for money and distributed for money.
Yet the New Mexico government is now telling Huguenin that she must create art works that she does not choose to create. There’s no First Amendment case squarely on point, but this does seem pretty close to the cases in which the Court held that the government may not compel people to express views that they do not endorse (the flag salute case, West Va. Bd. of Ed. v. Barnette, and the license plate slogan case, Wooley v. Maynard).
For whatever it’s worth, Huguenin also says she exercises political judgment in deciding what to photograph (for instance, she reports that she refuses to make photographs that put horror films in a positive light, or to take photographs that positively portray abortion, pornography, or nudity, as well as same-sex marriage). I don’t think that sort of political selectivity should be required for photographers to be protected as artists, but it seems to me to highlight the scope of the artist’s judgment, and the artist’s constitutional right to exercise such judgment (just as a bookstore has the right to choose which books to stock).
Consider also a hypothetical analogy: Say that instead of Willock’s trying to hire a photographer, Willock was trying to hire a solo freelance writer (or a writer in a two-person freelancing partnership) to write materials for Willock’s (hypothetical) same-sex marriage planning company. The writer refused on the grounds that she didn’t want to promote such a company.
I take it the law would cover the writer as much as it would cover the photographer (why wouldn’t it?). Yet wouldn’t requiring writers — even writers of press releases and Web sites — to write words that express views they reject violate the First Amendment? And if not, what’s the difference between that and requiring photographers to take photographs that implicitly but strongly express views they reject? (Wedding photographs, of course, express views celebrating the event being photographed.) ...
[2. Religious Exemptions:] [And] the decision may also violate the photographer’s religious freedom rights under the New Mexico Religious Freedom Restoration Act.
The act, which is similar to the legal rules in place in about half the states and as to federal law, provides that
A government agency shall not restrict a person’s free exercise of religion [i.e., an act or a refusal to act that is substantially motivated by religious belief] unless ... the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.Elaine Huguenin’s refusal to photograph a same-sex commitment ceremony does seem to be substantially motivated by her religious belief. She is therefore entitled to an exemption unless applying the law to her passes “strict scrutiny” — “is the least restrictive means of furthering [and is essential to furthering a] compelling governmental interest.”
What government interests might justify denying Huguenin the exemption? If the interest is in making sure that people have roughly equal access to services, regardless of their sexual orientation, then I doubt that requiring Huguenin to photograph the ceremony is essential to serving that interest. There surely are lots of other photographers in Albquerque, and I have no reason to think that all or even most of them share Huguenin’s religious objections; if Huguenin is given an exemption, same-sex couples will still have lots of photography services available to them. And given that a wedding photographer, to do a great job, likely needs to feel some empathy with the ceremony, forcing the Huguenins of the world into photographing a ceremony that they disapprove of will likely not give same-sex couples very good service.
But if the government’s view is that people have a moral right not to be discriminated against — entirely independently of any practical burden that such discrimination imposes on them — based on their sexual orientation, then it would appear that every instance of sexual orientation discrimination would violate that right. And if the government has a compelling interest in vindicating that right, then granting an exemption even to a few religious objectors would jeopardize that interest, and denying the objection would be essential to maximally furthering the interest. On the other hand, can New Mexico assert such a compelling interest when it itself discriminates against same-sex couples in its marriage laws?
So the religious freedom issue would turn, I take it, on what version of the government interest New Mexico courts ultimately recognize — the first version, focusing on practical access to services, which should lead to granting an exemption, or the second, focusing on a supposed moral right not to be discriminated against, which should lead to denying an exemption (if the government is seen as having a compelling interest in protecting that right). Incidentally, in a similar area, marital status discrimination in housing against unmarried couples, the several state courts applying state religious accommodation regimes have split, based precisely on this issue of which sort of interest is involved.
I have more thoughts on the subject, including some replies to responses that I had gotten to my original arguments, here; and, as I said, I hope to blog more on this soon.
David Schwartz says:
Could a chef make the same argument? Why not a house painter?
Free speech rights are very, very real. The mythical “right to be treated nicely, not just fairly, in business” should always yield to the very real right.
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December 16, 2009, 3:24 pmJohnF says:
The court defined a “public accommodation” to include any “creative professional” whose services are “available to the public.” (opinion at 4–5). This would of course include the artists that Eugene uses in his examples. Basically, the court ruled that no professional who offered his services to the public could discriminate, even though the statute was limited to discrimination by “public accommodations.”
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December 16, 2009, 3:26 pmuh_clem says:
Imagine if instead of a gay couple it was an interracial couple. Would you still support Huguenin’s refusal to photograph the wedding? Or what if the couple were parapalegics and she had an “aesthetic aversion” to photographing the disabled?
If not, please explain how this is different.
My take is that wedding photography is a commodity, like the cake, the food, the flowers, the clothes etc.
All the preparers of these items may consider themselves to be “artists”, (Cake decorating may not be high art, but it embodies a wide range of artistic choices. Flower arranging may not be high art, but it embodies a wide range of artistic choices. etc.) but if they open a business to the public they are bound by public accomodations laws, one of which is that they may not discriminate on sexual orientation.
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December 16, 2009, 3:30 pmADF Alliance Alert » New Mexico Trial Court Upholds Sanctions Based on Wedding Photographer’s Refusal to Photograph a Same-Sex Wedding Ceremony says:
[...] Volokh writes at the Volokh Conspiracy: “The case is Elane Photography, LLC v. Willock, and I blogged about it here, when it was [...]
Chris Travers says:
David Schwartz:
Could a chef who runs his own kosher restaurant be forced to offer non-kosher food on request?
Could a housepainter refuse to paint any houses any shade of green as a general policy?
I think both could make the same argument as to the works that they produce. This isn’t however as closely bound to who one serves as it is with wedding photographer though.
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December 16, 2009, 3:33 pmA. Dawson says:
I find it repugnant that governments can compel people to provide services to other people in the name of trying to combat discrimination. The purpose of government is to help enforce contracts that people voluntarily agreed to be a part of. It is not the purpose of the government to compel people to enter into contracts they do not wish to be a part of.
The photographer may find an “out” to circumvent the anti-discrimination law, but it absurd that the photographer even has to go to these lengths. Would photographers be exempt but not caterer’s? What about the cake designer? The seamstress? The band? The courts are all going to take each one of these on a case by case basis?
Ridiculous.
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December 16, 2009, 3:34 pmwm13 says:
Huh. So it seems that all the lawyers and commentators (Dale Carpenter, Andrew Sullivan) who insisted that recognizing gay rights wouldn’t mean trampling the First Amendment were very, very wrong. Unfortunately, members of the chattering classes, unlike investment bankers, don’t lose their jobs when they make horrendously wrong predictions. And they definitely don’t apologize or admit error.
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December 16, 2009, 3:35 pmDavid Nieporent says:
Yes, of course.
Then that makes this doubly stupid. The customers don’t need this supplier of a commodity; they can go to any supplier.
Public accommodations laws cannot abrogate the first amendment.
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December 16, 2009, 3:38 pmChris Travers says:
Uh Clem:
Ok, but getting back to the expressive elements.... I do think it is fair if cake decorators don’t want to decorate cakes in such a way as to make the cake “obviously” same-sex marriage-oriented. As for flower arraingements, if someone owns a business and refuses to carry or decorate things with white flowers because of an aesthetic aversion, I think that is their choice.
Now in neither of these cases would the aesthetic aversion preclude offering services to a same-sex wedding, though it might affect the shape of those services available. The difference with a photographer is that the expressive elements are tightly bound into the act of service and this then creates a difference.
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December 16, 2009, 3:39 pmA. Dawson says:
@uh-clem
Better yet...
What if the photographer was a Jew and the couple was having a Nazi / pro-holocaust wedding?
What if the photographer is a Christian and the couple is a Enumclaw man getting committed to his horse?
What if the photographer was Texas DPFS agent (moonlight as a photographer) and the couple was a polygamus arrangement at the YFZ ranch?
Where does the absurdity stop, exactly?
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December 16, 2009, 3:39 pmptt says:
If only the racists and anti-semites of the 50s and 60s had had such brave — and well financed — defenders of the First Amendment working for them. What a different world it would be...
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December 16, 2009, 3:39 pmChris Travers says:
wm13:
It is very premature to make such a statement. I, for one, both support SSM, and sincerely hope this gets overturned on appeal.
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December 16, 2009, 3:40 pmptt says:
They have for decades, haven’t they?
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December 16, 2009, 3:40 pmPragmaticist says:
The perversity arises from redefining the word “public” to include non-governmental, i.e., private entities.
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December 16, 2009, 3:42 pmHans says:
The ruling is ludicrous, even as a purely statutory matter, even putting aside any constitutional issues.
It is also very ironic. The State 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. Yet here it claims a “compelling interest” in punishing a wedding photographer it accuses of not treating gay relationships like marriages. Doesn’t this violate the principle in the Supreme Court’s Lukumi free-exercise clause decision in 1993 that a state can’t claim to have a “compelling interest” in overriding religious freedom if it is not applied evenhandedly across the board?
It is the State that is engaging in invidious discrimination based on sexual orientation, not the photographer.
The court’s claim that religious-freedom doesn’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.
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December 16, 2009, 3:44 pmuh_clem says:
If a restaurant serves X kind of food, there’s no requirement that they have to also serve Y kind of food, only that they serve X to whoever wants to buy it.
As for the housepainter, unless you could show that he was basing his color policy on the gender, ethnicity, sexual orientation, etc of the potential customers he’d be free to refuse. (e.g. he won’t paint an Irishman’s house green, but will paint anybody else’s house green.)
I don’t understand what’s so complicated here.
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December 16, 2009, 3:46 pmBruce Hayden says:
I think that the interracial couple would be the closer question. The problem under the U.S. Constitution is that freedoms of expression, association, and religion are all impacted here, and all are fundamental rights. Feeling good about yourself because you are getting married to your gay partner is not such a fundamental right. Because they are fundamental rights, Strict Scrutiny is required of anything abridging such. I just don’t see SSM or ADA, etc. as compelling state interests. However, we fought our Civil War, enacted 3 Amendments, and a number of Civil Rights Acts,along the way, all over the question of race. So that is much more likely a compelling state interest. Plus, we are talking state action here, and so the law in question may have Strict Scrutiny going on the other side in the case of race (something like the reverse commerce clause).
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December 16, 2009, 3:50 pmChris Travers says:
Regarding cake decoration and distaste for interracial couples.... If a sole proprietor/cake decorator artist wants to refuse to put different-race figurines on a cake that is, IMO, within the bounds of the first amendment. If he refuses to deliver a cake decorated in a manner that would be available for a non-interracial couple to an interracial couple’s wedding (when he would do the same for a non-interracial couple) that is clearly unprotected.
Similarly, I think if an eating establishment were to put up banners saying “Support your local KKK chapter” that would be fine, but refusing to seat black patrons would not.
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December 16, 2009, 3:56 pmuh_clem says:
Show me the New Mexico statute that makes it illegal to discriminate against Nazis and I might be able to make an argument for compelling the photographer to shoot it. Absent that, the photographer can probably refuse.
Show me the New Mexico statute that makes it illegal to discriminate against horses and I might be able to make an argument for compelling the photographer to shoot it. Absent that, the photographer can probably refuse.
Show me the New Mexico statute that makes it illegal to discriminate against polygamists and I might be able to make an argument for compelling the photographer to shoot it. Absent that, the photographer can probably refuse.
Maybe when you stop giving absurd examples that have nothing to do with the legal aspects of the issue?
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December 16, 2009, 3:57 pmGuest12345 says:
So what you’re saying, if I understand you correctly, the photographer could accept payment from the lesbian couple. Then show up at the ceremony and take no pictures at all, since she is a wedding photographer and according to the State of New Mexico, the ceremony in question isn’t a wedding.
Seems like a pretty bizarre position to hold, but if that’s your take on it, you’re entitled.
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December 16, 2009, 3:59 pmKen Arromdee says:
Oh, they always word things very carefully. They claim that gay marriage won’t trample the First Amendment. Because this is not a gay marriage ceremony, but a commitment ceremony, it doesn’t disprove that carefully worded claim.
The fact that someone is being forced to treat a commitment ceremony like a gay marriage, of course, doesn’t make it count as a gay marriage example.
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December 16, 2009, 4:01 pmThe Volokh Conspiracy » Blog Archive » Compelling Speech by Commercial Photographers, Freelance Writers, Musicians, and So On says:
[...] Archives « New Mexico Trial Court Upholds Sanctions Based on Wedding Photographer’s Refusal to Photograph a S... [...]
The Volokh Conspiracy » Blog Archive » Compelling Speech by Commercial Photographers, Freelance Writers, Musicians, and So On says:
[...] Archives « New Mexico Trial Court Upholds Sanctions Based on Wedding Photographer’s Refusal to Photograph a S... [...]
ArthurKirkland says:
Gays should form a religion, enabling them to take advantage of the “heads we win, tails the other guy loses” arguments advanced on religious grounds.
That still doesn’t answer who wins — the person who would discriminate, or the person who would be discriminated against — but it would create even footing.
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December 16, 2009, 4:02 pmA. Dawson says:
The law is absurd. No law should compel a person to provide goods or services to anyone. It would be discriminatory of the law to compel a person to provide services to the SSM situation mentioned in the posting but not compel a person to provide services because the law did agree with the provider of services that the other situations are morally repugnant.
So... my examples are not so absurd. They were designe to expose the hypocrisy of the law.
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December 16, 2009, 4:03 pmrichard says:
Public accommodations laws cannot abrogate the first amendment.
So a restaurant owner who has religious objections to interracial marriages can refuse to serve a mixed race couple. I don’t think the Constitution says that.
With regard to the argument that photography is a commodity and the gay couple could have gone to another photographer, the same argument could have been made to blacks seeking service at a segregated restaurant — why don’t they just go somewhere else and let Lester Maddox alone?
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December 16, 2009, 4:04 pmJeff J says:
It seems the primary effect of these anti-discrimination laws is to allow people to sue others just to make a point, and not to prevent or alleviate actual harm. This is especially so where “public accomodations” are defined to include non-necessities such as wedding photos or floral arrangements. I could understand government action where there is a real danger that local prejudices could prevent minorities from obtaining adequate lodging, food, or the like. But this is a case where the market truly is adequate to prevent any harm to the couple. There no doubt were other qualified photographers in the area who would willingly step up to claim the couple’s money.
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December 16, 2009, 4:06 pmChris Travers says:
uh_clem:
So what I call my housepainting business NINA Housepainting and the motto is “Anything but Green.” In my FAQ I note that Irish are lazy bums who were rightfully denied jobs and my business is named after the acronym “No Irish Need Apply.”
This being said, I don’t refuse to paint folks houses regardless of ancestry, I just make a statement with my business.
Certainly my expression is discriminatory, and certainly it is intended to drive away some potential customers. But as long as I don’t refuse service, I really think it should be protected.
So what of a photographer refusing to photograph any “portrayal of homosexual relationships because they are immoral?” Is that like refusing to paint a house green? I would argue it is.
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December 16, 2009, 4:07 pmKazinski says:
Uh Clem:
That will be your take until you see the proofs.
As for the cake, floral arrangements and wedding dress, I would say as long as they are “off the shelf” designs, but if they contract for original designs then that would come under the first amendment exclusion too.
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December 16, 2009, 4:08 pmHouston Lawyer says:
When the laws requiring nondiscrimination in public accomodations enacted, there were large parts of the country where it was very difficult for Blacks to travel because of businesses that would refuse their patronage. These businesses effectively put a burden on Black people.
The continuing enforcement of such laws, and the ever increasing number of classes of people that are entitled to benefit, serves no legitimate purpose. Those who would refuse the patronage of any group of customers are in a very small minority and impose no burden on anyone.
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December 16, 2009, 4:08 pmjosh bornstein says:
wm13
While I (and probably most others on this site) agree with you about the merits of this particular judicial decision, aren’t you being a bit unfair to Dale et al? Please note that this is a decision at the trial level, and I seriously doubt that it will win at higher levels of judicial scrutiny. Picking out one poor decision (that does not control in other Jx), and using that as a cudgel to bash in a wide swath seems a bit off-the-mark. I sincerely hope that, as the law evolves, cooler judicial heads will prevail, and it will be clear that photographers and others will not be forced into business relationships like in this case.
I don’t understand (as EV noted in his OP) why the court did not look to the First Amend. in deciding this case. But then; I’m confused as to how an atheist politician might be at risk of being removed from his elected position. (In 7 states, as I recall, under their various state constitutions.) We live in interesting times.
But I digress. I actually have a tremendous amount of sympathy for the party in this case (probably due to my own interest in photography). While the case is (hopefully!) being appealed, would it okay for Elaine H to add to her contracts,
That was off the top of my head. Obviously, I could come up with somewhat better language if I bothered to take more time.
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December 16, 2009, 4:09 pmDavid Nieporent says:
I do, but that’s the thirteenth amendment, not the first.
Your question is analogous. Serving meals is not expressive. Taking photographs is. (Consider: can the state order the photographer to take good pictures? What if she takes shots that portray the couple negatively?)
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December 16, 2009, 4:12 pmDavid Nieporent says:
Yes, but many people used the “this is only a human rights commission decision, not a court decision” argument when it first was publicized a couple of years ago. Now it is a court decision.
A better argument in support of Dale et al. is that this happened even though Mexico doesn’t recognize SSM, so obviously it can’t be blamed on SSM.
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December 16, 2009, 4:15 pmuh_clem says:
I can at least appreciate the honesty and consistency of those who say that “No law should compel a person to provide goods or services to anyone”.
Maybe you’re not old enough to remember, but not very long ago most restaurants wouldn’t serve anyone other than white people. Most Hotels wouldn’t rent to anyone other than white people. Property title deeds contained proscriptions on selling to anyone other than white people. This was in my lifetime — I remember, in fact my house title still has the proscription although it’s not enforecable. You may want to go back to the days of Jim Crow, but I don’t.
The civil rights act of 1964 which ended this odious practice was passed over the strenuous objections of the segregationist, for whom “freedom of association” was a constant rallying cry. I’m rather surprised that 45 years later people are still trying to undo it.
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December 16, 2009, 4:18 pmKen Arromdee says:
The reason why this argument is disingenuous is that the law is being used to force someone to treat a commitment ceremony like a SSM (in this one way). It’s partial (it doesn’t cover every aspect of SSM) and it doesn’t have the label “SSM law” on the top, but it’s a de-facto SSM law–it’s a law which (is interpreted to) grant someone a SSM right.
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December 16, 2009, 4:30 pmFurshlugginer says:
Suppose under threat of legal action the photographer took the commission and shot many photos, but– perhaps because of mental distress produced by working under duress– all or most of the photos turned out unappealing (“candid” photos showing fleeting frowns or gaping mouths instead of smiles, “posed” photos awkwardly shadowed, etc.). Suppose further that those who commissioned the photos refused to pay for them. Should the same trial court enforce the previously-coerced contract and compel payment to the photographer? If not, why not?
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December 16, 2009, 4:32 pmKen Arromdee says:
Serving food isn’t an expressive activity and isn’t protected by the First Amendment. Neither is selling houses.
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December 16, 2009, 4:33 pmuh_clem says:
Serving meals may not be expressive, but preparing them is. Ask any serious chef (c;
But to address whether the state can order the photographer to take good pictures, the spirit of public accomodations laws is to treat the clientelle the same. For instance, if a restaurant consistently provides poor service and low quality food to X class of people they could be found in violation. See the Denny’s case from a couple of years ago.
Of course, as a practical matter it would much harder to prove that the pictures are (a) of lower quality (b) because of discrimination than the clear cut “NO GAYS” situation we have now.
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December 16, 2009, 4:34 pmA. Dawson says:
I’m a believer in Darwin. There are *PLENTY* of other photographers out there who are more than happy to take photos of anyone for a fee. They really don’t care who they are or what their politics are. Even if they did, most professional photographers are willing to compromise their values for the sake of paying the bills. Photographer’s who are rather picky about which subjects / people they photograph better be gosh darn phenomenal photographers are they are going to starve. Voting with the wallet is the most powerful form of persuation their is. No law can supplant that.
I would add that it is never a good idea to compel an artist to do work they don’t want to do. The recipients of this work are likely to recieve a mediocre product.
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December 16, 2009, 4:41 pmChris Travers says:
I am going to disagree with A Dawson here:
Absent anti-segregation laws, I think it is unreasonable to assert that a large portion of the country would have businesses open to serving black folks the same as white folks. And certainly if you live in a small town with only one supermarket, for example, the problems of being shut out of a business are multiplied.
Sure some vote with their feet but demographics suggest this is the minority.
Where I draw the line is between grudging service and expression. I thing opening a bar and grill, calling it the “Klansman” and advertising “Now serving niggers!” should be perfectly protected. If the service is packaged such that nobody in a specific disadvantaged class would possibly want to go there, that is fine, but refusing to seat black patrons would be over the line.
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December 16, 2009, 4:42 pmJoseph Slater says:
David Nieporent:
A bit off-topic, but since you brought it up. . . . It sounds like you (unlike courts) have a pretty broad view of the 13th Amendment. Careful, or you will find yourself accidentally agreeing with a group of labor and employment law scholars who have very different politics than yours and are urging a pretty broad view of the 13th Amendment that would get to a lot of results I’m pretty sure you wouldn’t like (e.g., a 13th amendment right for all employees to strike).
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December 16, 2009, 4:43 pmThe Volokh Conspiracy » Blog Archive » Religious Accommodation Statutes and a Right Not To Participate in Same-Sex Weddings says:
[...] how the court in Elane Photography v. Willock explains why Elane Photography shouldn’t get a religious exemption under this law from the ban on [...]
JCC says:
And here we come to the rub. Guess what? Sexual orientation (hell, even sex itself) does not rise to the same level as race in terms of discrimination that must be actively protected against. This very basic concept gets overlooked again and again by one side or the other. The reason we’re even having this discussion here is that, at some fundamental level, most Americans realize this.
Stop comparing discrimination based on race to discrimination based on anything else — given American history, it’s simply not the same in a political, legal, or moral sense. Assuming that it is and arguing solely from that perspective without understanding that their premise is open to debate (if not outright rejected by the other side) is the main reason IMHO that SSM is not making any progress.
This simply provides an example of what the anti-SSM proponents are warning against, and the fact that it resonates at all shows that the pro-SSM side needs to rethink their strategy. If they were right, this would be immediately rejected the same way that a racially discriminatory act would be.
My $.02
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December 16, 2009, 4:44 pmChris Travers says:
Worse, suppose the state does order this and the couple then sues because the pictures are merely mediocre.
Can the courts reasonably act as finders of fact regarding quality of photography?
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December 16, 2009, 4:45 pmNate says:
A few legal points:
(1) Anti-discrimination statutes necessarily impinge on private contracts (in employment, housing, places of public accommodation), so objecting to this ruling with the normative principle that law should not be able to touch private contracts is a bit irrelevant to this discussion.
(2) Anti-discrimination statutes do not compel anyone to provide goods or services or housing or employment to another; rather, these statutes prohibit the person doing the providing from conditioning his or her decision whether to provide on certain traits and characteristics (e.g., race, religion, national origin, sexual orientation, disability). If you start with the supposition that discrimination based on certain traits is bad, then it seems reasonable to prohibit people from using those traits on which to base retail or employment decisions.
(3) Prof. Volokh’s argument that the ruling may infringe on constitutionally protected expression is an interesting one. N.M. state law appears to define “public accommodations” pretty expansively and there are certainly risks to such an approach. However, it also seems pretty clear that creating an exception for a wedding photography business on the basis that photography is expressive activity would eviscerate N.M.‘s human rights law.
If the law was enacted to protect homosexual persons from discrimination on the basis of their sexual orientation by businesses in the consumption of their services, it destroys the purpose of the law to exempt any business that, at its core, commercializes some expressive activity — photography, design, dance, music, writing, etc.
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December 16, 2009, 4:46 pmA. Dawson says:
@Ken Arromdee
Drinking coffee isn’t explicitly protected by the constitution either. I believe this why Alexander Hamilton expressed objections to enumerating certain rights. The government / people may deem that anything not enumerated is not constitutionally protected. That’s why they included the ubiquitous 9th and 10th amendments.
I think a lot of these laws are infringing on these. Add the 14th amendment (section 1) into the mix and in theory the 9th / 10th amendments should have been incorporated against the states. Those of you following McDonald v. Chicago are aware that the Supreme Court has agreed to review the 14th amendments P&I clause. They could possible reverse the Slaughterhouse Cases.
I would argue that serving food, selling houses... engaging in contracts, in general, are constitutionally protected.
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December 16, 2009, 4:52 pmJoseph Slater says:
I’ll admit I haven’t read the case, but does anyone know how the damages / penalty was calculated in this case? Several people have said, “oh, plaintiffs could have easily gotten another photographer.” In employment discrimination, even if you can prove that, say, you weren’t hired because you were black (or a Jew, or other protected category) if plaintiff did find or could easily have found the same type of job, with the same or better compensation, just as convenient a commute, etc., plaintiff wouldn’t have much by way of damages.
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December 16, 2009, 4:54 pmChris Travers says:
As far as photography, I agree here.
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December 16, 2009, 4:54 pmYankev says:
The compelling interest in making the state the final — and indeed sole — arbiter of what is moral and what is immoral.
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December 16, 2009, 4:54 pmDavid Nieporent says:
No, it isn’t. It’s a general anti-discrimination law; it has nothing to do with SSM. (New Mexico doesn’t recognize civil unions either.)
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December 16, 2009, 4:55 pmYankev says:
Doesn’t the statute prohbiti discriminating on the basis of sexual orientation? The plaintiff would be the man, not the horse.
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December 16, 2009, 4:57 pmChris Travers says:
Reading the opinion I find it very troubling. It seems that the example of “The Klansman Bar and Grill” with the trademark of “Now Serving Niggers” might in fact be banned by the same judicial reasoning since the choice of name would clearly create two classes of would-be customers.
Doesn’t this amount to a no-commercial-hate-speech law?
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December 16, 2009, 5:05 pmDavid Nieporent says:
Of course I agree with that. (But of course I also believe in the right of employers to fire striking workers, so this probably isn’t what you mean.)
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December 16, 2009, 5:08 pmDavid Nieporent says:
I think you’re missing the bigger picture (no pun intended): it’s not that it would be hard to show the motives behind the pictures being of lower quality, but that it would be impossible to show that the pictures are of lower quality. That’s an artistic judgment. How is the court to judge art?
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December 16, 2009, 5:12 pmChris Travers says:
One more interesting note from the opinion is that I think it misrepresents the concept of hybrid rights in Smith. IANAL, but it seemed clear in the opinion that the justices were being careful NOT to overrule cases like Yoder v. Wisconsin where a right was asserted under freedom of religion which was also at least under the penumbra of anther Constitutional right (in that case parental autonomy). It seems to me that compelled expression contrary to one’s religious views would certainly be such a hybrid right. Am I missing something? Or is the court trying to run with Smith in a direction contrary to existing precedent?
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December 16, 2009, 5:12 pmJoseph Slater says:
David N.: Oh yeah, the folks urging the broad interpretation of the 13th Am. would, as you imply, argue that the “right to strike” would include “and not be fired for it.” Not to get too off-topic, but if, in your vision, all strikes would be protected constitutionally as you describe, would that mean that the government, in the normal run of things, couldn’t issue an injunction against any non-violent strike — even in the case of public employees? Suppose public school teachers go on strike in a jurisdiction where such strikes are barred by statute; such statutes typically give the employer the remedy of an injunction. In your ideal world, the public employer could fire the employee, but an injunction against the strike would violate the constitution?
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December 16, 2009, 5:18 pmorions_hammer says:
I detect an undercurrent of class warfare to the legal contortions that add a first amendment exemption to antidiscrimination laws. It’s illegal when proles or merchants (hotel clerks, restaurant waitstaff, grocery store folks) discriminate against people they find objectionable, such as my filthy Irish ancestors. But somehow discrimination becomes legal when done by educated noblemen (writers, fine art painters, or photographers). Really?
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December 16, 2009, 5:25 pmElane Photography Plans Appeal of Negative Ruling by New Mexico Court « Academic Freedom File says:
[...] recognized in New Mexico. UCLA law professor Eugene Volokh has already blogged about the decision here, here and here, pointing out how the decision fails to protect the First Amendment rights of the [...]
J. Aldridge says:
Because they really are Congress?
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December 16, 2009, 7:21 pmRandy says:
“Sexual orientation (hell, even sex itself) does not rise to the same level as race in terms of discrimination that must be actively protected against.”
JCC: Why not? Refusing service because you are gay leaves out in the cold just as much as refusing service because you are black. To argue otherwise is to say that discriminating against gays just isn’t as ‘bad’ as discriminating against blacks.
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December 16, 2009, 7:54 pmSarcastro says:
[Add me to the list of pro-SSM people who think this is an awful decision.]
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December 16, 2009, 8:09 pmJCC says:
So does refusing service because you’re a drug user, or because you’re a nudist, or because you subscribe to non-religious philosophy XYZ. And none of those classifications hold a candle to the history of slavery and racial issues along the entire length of this country’s history. The mere historical facts of race being involved are what (in my mind) place Loving v. Virginia on a different plane (and hold racially-implicated divisions differently) than SSM (and, by extension, things homosexuality related).
If you want a more blatant example, think of it this way:
Sex is more explicitly a “protected” category in most jurisdictions than sexual orientation is, yet even that doesn’t approach the level of scrutiny than racial categories do. If it *was* the same, all those lawsuits demanding unisex public bathrooms would be succeeding.
If sex doesn’t approach race, sexual orientation certainly doesn’t.
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December 16, 2009, 8:19 pmTweets that mention The Volokh Conspiracy » Blog Archive » New Mexico Trial Court Upholds Sanctions Based on Wedding Photographer’s Refusal to Photograph a Same-Sex Wedding Ceremony -- Topsy.com says:
[...] This post was mentioned on Twitter by David Sanger, Eugene Volokh. Eugene Volokh said: New Mexico Trial Court Upholds Sanctions Based on Wedding Photographer’s Refusal to Photograph a Same-Sex Weddi.. http://bit.ly/7E0kJR [...]
Laura(southernxyl) says:
If Huguenin refused to photograph the wedding of an interracial couple due to religious scruples, and could convincingly argue this (for instance, point to several clear and widely-recognized scriptural references that baack this up) then I’d support it, yes. The “aesthetic aversion” argument is a red herring; Huguenin hasn’t argued that, nor has anyone on her behalf.
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December 16, 2009, 8:31 pmbob says:
Create art works? Boo hoo hoo.
What about someone who owns a bed and breakfast but doesn’t want to rent to black folks.
I guess you could spin that as the nasty government is making grandma serve breakfast to black folks.
Look, she runs a business. She’s a bigot. Too bad.
She can do her precious “art” without charging people for it.
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December 16, 2009, 8:35 pmjojo says:
Remind me again which religion does not recognize interracial marriage?
If the photographer’s refusal was based solely on religious beliefs, then sexual orientation is irrelevant and refusal should be Constitutionally protected. Should the photographer also be compelled to photograph a Satanic commitment ceremony so as not to discriminate based on the religion of the Satanists? Or a Hasidic Jew who who will take pictures of men in swim suits be forced to take pictures of women in bikinis too so as not to discriminate based on sex even though his religion forbids him to see women in that way?
Forcing someone to photograph an act that is considered a sin based on their religion subjugates religious rights to other rights. That’s wrong. And unconstitutional.
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December 16, 2009, 9:38 pmRandy says:
JCC: “Sex is more explicitly a “protected” category in most jurisdictions than sexual orientation is, yet even that doesn’t approach the level of scrutiny than racial categories do. If it *was* the same, all those lawsuits demanding unisex public bathrooms would be succeeding.”
Please cite to even some of the lawsuits that you claim demand unisex public bathrooms. And that really has nothing to do with discrimination. Public bathrooms are available to all, so there is no discrimination. If, however, you provide bathrooms for men but not for women, you most certainly would run afoul of the nondiscrimination laws. And do you really believe that women can be discriminated against based on their sex? Then you apparently missed the entire 1970s.
So yes, sex certainy is a protected category.
But back to your larger point — As MLK said, an injustice anywhere is a threat to justice everywhere. If a gay person is denied access to his dying partner in a hospital, or is denied the right to bury his dead partner (as happens, and did happen in Providence, RI recently), that’s a pretty big discriminatory act. Gay people still get fired from their jobs just for being gay, or can’t get hired in certain jurisdictions that don’t have protections. Landlords can and do refuse to rent apartments to gay people. Perhaps that’s not important to you, but to be refused these things puts a ‘badge of inferiority’ upon gays just as much as it does blacks.
” none of those classifications hold a candle to the history of slavery and racial issues along the entire length of this country’s history. The mere historical facts of race being involved are what (in my mind) place Loving v. Virginia on a different plane (and hold racially-implicated divisions differently) than SSM (and, by extension, things homosexuality related).”
Right. No one has had it as badly as blacks, therefore no one can ever claim that they have suffered discrimination. Sorry, but that’s just pure baloney.
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December 16, 2009, 10:00 pmDavid Nieporent says:
That sounds about right, yes. Money damages for striking in violation of a contract, sure. Injunctions with potential criminal penalties for refusing to work, no.
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December 17, 2009, 12:29 amDavid Nieporent says:
They don’t? Great!
Oh, so in fact they do. If one doesn’t have a “good” reason, in the government’s mind, then one is compelled to serve another. Ah. Nevermind.
That doesn’t follow in the slightest. Saying nasty things about people based on certain traits is bad, but that doesn’t mean it’s “reasonable” to ban bigoted speech. “Bad” and “reasonable to prohibit” are two very different things. Many things which are bad ought nonetheless to be legal.
Really? That doesn’t sound “pretty clear at all.
What have people said “How do you figure? How would it “destroy the purpose of the law” to allow a exception to a narrow group of people? Slightly weaken, perhaps. But “eviscerate”? “Destroy”? How?
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December 17, 2009, 8:24 amChris Travers says:
Randy:
Couldn’t the same be said about restrooms for colored folk? The only cases I can find (and they do exist) are not about gender segregation but about how gender-segregated restrooms discriminate against transgendered folks.
I don’t find the “badge of inferiority” argument very compelling. I think a real argument can be made about real impacts. I.e. if you are systematically denied access to visit dying partners, that is a matter of deep impact and needs to be changed because it takes away all our freedom, not because some folk feel stigmatized.
Well, I am not sure that all discrimination is sufficiently compelling to mandate reductions in our Constitutional rights. Racial segregation and slavery in this country was a unique evil of a sort which can be legitimately argued to be so severe as to require temporary sacrifices from all of us to help overcome. At the same time, I am not convinced that sexual orientation-based discrimination is on that same level. The most deep areas of systematic discrimination can and should be fought for as a matter of expanding liberty of ALL Americans.
So here is a question. If there was a business that stamped all their products with “Hitler was right. Jews should be killed.” I would fight for their right to do this despite the fact that under the NSDAP, I have sufficient Jewish heritage to be considered Jewish and so it is very really a personal (though abstract) threat. Would you do the same if the business stamped all their products with “God hates Fags. Faggots should be burned?” Or would you try to convince the court that such should be unprotected?
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December 17, 2009, 3:20 pmMike says:
I am a photographer, I make money when I work, I don’t make money when I don’t work, so NOT working means my views must be strong, however, if the courts ORDER me to work, can they order me to do good work? I also do not do every wedding that is offered to me, for what I decide are good reasons, but if I lose the right to choose I have to believe the quality of my work will suffer significantly in the cases where I’m being creative against my will (is that even possible?)
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December 17, 2009, 4:56 pmA. Dawson says:
Mike... my guess is that the photographer in this probably made of the error of telling the potential client WHY he was declining their business. My understanding is that is not illegal to decline business. It is apparently illegal to decline business on the basis of illicit discriminating factors.
... btw... I’m ‘tog too... just a serious hobbyist. Attended an ASMP seminar on copyrights last night.
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December 17, 2009, 5:09 pmChris Travers says:
A Dawson:
That’s what the ruling says.
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December 17, 2009, 5:52 pmJMA says:
“Mike... my guess is that the photographer in this probably made of the error of telling the potential client WHY he was declining their business. My understanding is that is not illegal to decline business. It is apparently illegal to decline business on the basis of illicit discriminating factors.”
Heheh. Yeah, as soon as I saw this case, I thought, “You should have just lied to them, lady.”
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December 17, 2009, 6:02 pmRandy says:
JMA: “Yeah, as soon as I saw this case, I thought, “You should have just lied to them, lady.”
I agree, but for some people, they *want* to make sure gay people feel discriminated against.
“The only cases I can find (and they do exist) are not about gender segregation but about how gender-segregated restrooms discriminate against transgendered folks.”
Yup. Because if you are transgendered, or in the process of transitioning, your options are often few. If you are man transitioning to a woman, or vice versa, which bathroom would you use without violating any laws or scaring people? But this is a far cry from your original quote, which made is seem that gay people just want unisex bathrooms for all people. and that’s not true at all.
” if you are systematically denied access to visit dying partners, that is a matter of deep impact and needs to be changed because it takes away all our freedom, not because some folk feel stigmatized”
Absolutely. Funny thing, though — the only people who are denied access to dying partners are gay people. Married people are not. So the solution is to remove the denial of access to gay partners, right?
” I am not sure that all discrimination is sufficiently compelling to mandate reductions in our Constitutional rights. Racial segregation and slavery in this country was a unique evil of a sort which can be legitimately argued to be so severe as to require temporary sacrifices from all of us to help overcome. At the same time, I am not convinced that sexual orientation-based discrimination is on that same level. The most deep areas of systematic discrimination can and should be fought for as a matter of expanding liberty of ALL Americans.”
Hurray! Let’s expand liberty to all Americans then — any two people who want to marry should be able to marry is a start. If you are in business, you have to treat all employees and cannot fire or hire on any basis other than whether you are qualified for the job. So you can’t fire someone just for being gay.
And so on. Which is exactly what gay rights advocates have been arguing for years. Glad you are on board.
“So here is a question. If there was a business that stamped all their products with “Hitler was right. Jews should be killed.” I would fight for their right to do this despite the fact that under the NSDAP, I have sufficient Jewish heritage to be considered Jewish and so it is very really a personal (though abstract) threat. Would you do the same if the business stamped all their products with “God hates Fags. Faggots should be burned?”
I would be happy so long as both statements are treated the same way. If one is illegal, then the other one is too. I believe both statements should be prohibited in any environment where children are predominant, such as in a school. But even then I can live with it provided there was equal opportunity to stamp products as God loves gays and jews.
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December 17, 2009, 7:27 pmChris Travers says:
Randy:
My sense of the original bathroom quote was that it was a comparison between some sort of radical gender rights activists and the fact that having separate bathrooms based on race is Unconstitutional (following Brown v. Board of Education) but having separate restrooms based on gender is OK. In other words, racial segregation is held to strict scrutiny while gender segregation is held generally to intermediate scrutiny. Hence “separate but equal” is OK in some circumstances as it relates to gender but not as it relates to race.
I was surprised I couldn’t find some lawsuit somewhere alleging that the mere presence of gender-segregated bathrooms violated the equal protection clause. I was thinking more along the lines of something like this though I recognize that gays are often (IMO falsely) accused of pushing for an end to gender-segregated restrooms.
Well depending on if you consider a same-sex relationship between bisexual women to be “gay partners” it might be well broader than that. Furthermore, I don’t really see why domestic partnership should necessarily be seen as requiring sexual relations the way marriage traditionally has. (i.e. In some states, if one party to a marriage refuses to further engage in sexual relations, the other party can sue for such activity and if the other party still refuses, can get additional damages in the course of divorce proceedings. These laws need to go away anyway and shouldn’t be applied even to marriage, let alone domestic partnerships.)
If a straight man and widower wants to enter into a domestic partnership with a close friend and divorcee for the purposes of joint support of both their children, I don’t see anything wrong with that. If both agree that having girlfriends is fine that is ok too in my book. So this COULD result in a great deal of additional options for familial support structures for EVERYONE than we currently have.
If “qualified” is read extremely broadly as addressing anything related in any way to one’s job function or performance I would agree but not sure how it should be enforced in a balanced way. The concerns I have end up being ones just relating to level of proof, etc. that can come up when someone says “I am fired because I am gay” and the company says “no, you just didn’t do your job well enough.” So this is a practical concern, not one of moral disagreement.
It gets more difficult when the employer might cite a “personality conflict” as a reason for terminating employment, saying that they simply had trouble working together, and the employee claims he/she was fired for being gay.
(Also in some cases being openly gay might have some bearing on whether one was qualified to, for example, act as a spokesman or advocate for the Roman Catholic Church’s views on homosexuality, but I suspect this is far removed from what you are trying to push for.)
And harrassment laws open up a can of worms I would rather see heavily contained.....
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December 17, 2009, 9:03 pmcoltakashi says:
It would be one thing if we were talking about someone needing irreplaceable medical care. But the plaintiffs in this case were NOT interested in getting someone to do pictures, but to punish someone who did not want to associate with their particular sexual activities. By the same logic, the photog could be punished for refusing to take pictures of a sexual orgy, or of sexual abuse of minors, or of nudists or exhibitionists. In a time when ANYONE can take photos and distribute them on the internet, why does anyone need to coerce a particular photographer into working for her?
Lawyers do NOT have to take cases representing clients they don’t like, short of being appointed by a court in a criminal defense situation. It is pretty arrogant of a lawyer–a judge–telling a person to do something HE would not be compelled to do by law.
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December 17, 2009, 10:18 pmLaura(southernxyl) says:
Randy, it’s possible that the religious scruples the photographer has against supporting SSM also inhibit her from lying.
People can disagree very strongly about a subject without either of them being wicked. As personally as you know this subject affects you, Huguenin is just as personally affected because she’s told she must set aside her convictions and support something she believes is not right. It’d be great if we all agreed but we just don’t. Somehow we have to share the planet anyway.
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December 18, 2009, 8:45 amJMA says:
“Randy, it’s possible that the religious scruples the photographer has against supporting SSM also inhibit her from lying.”
Well, now, that would be kinda silly. I can’t think of any religion, offhand, that has a prohibition against just _lying._ But, then, I’m not really up on all of them.
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December 18, 2009, 10:03 amA. Dawson says:
I doubt her religion requires to tell them WHY they were being declined. If her religion requires her to be direct and vocal about her motivations about everything that she does in life... she either:
A) Lives in an extremely tolerant community... or
B) Is very alone.
I fully support her freedom of expression and find it absurd that she would have to compromise her speech to avoid being compeled by the law to provide services or be sued. That being said, the smart thing here ewould just have been to decline her services politely and not state why.
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December 18, 2009, 12:42 pmLaura(southernxyl) says:
You don’t think she might have felt it important, in this time of changing standards, to state her principles?
Why did the people who tried to employ her not just pick a different photographer?
Each side might have felt it needed to make a point.
It would seem to me that when somebody has a religion or a life philosophy that I don’t share, I should be less ready to judge whether or not their actions make sense, rather than more.
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December 18, 2009, 1:11 pmLymis says:
The one part of all of this that I have not heard anyone addressing is the idea that the flaw lies in the original non-discrimination law.
I hear people saying “See, this proves that there should be no laws protecting gay people from discriminations” — the whole snarky “they said this wouldn’t affect the first amendment” riff.
I hear people saying that it is wrong, ridiculous, inappropriate for this sort of law to apply to a photographer this way.
I’m not a lawyer, but I understand that even in the most rigorously applied non-discrimination situations in housing, exemptions are made for people who rent a room in their home, and that there are other similar things in place for other circumstances.
Isn’t this a case where what is possible is that the court is correctly applying a law that should have been more carefully written?
I am 100% in favor of non-discrimination laws. All the comments about restaurants, for example. But a contract photographer is more like a caterer than a restaurant. This isn’t even like a megamart with a walk-in photography studio — I think they should not be allowed to discriminate based on religion or sexual orientation. But I don’t support a law that forces this woman to take these photos. If it does, it isn’t the court’s fault — it is the law’s.
But so many people scream “activist judges” when judges interpret vague laws, but then complain when they DON’T come up with some commonsense interpretation about what the law “is supposed to mean” that is completely at odds with what it actually says.
Someone needs to write a law that allows the court to make a distinction between a chain restaurant and a caterer working part-time out of their home, and between a walk-in photo studio and a photographer who handles events like weddings.
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December 18, 2009, 3:36 pmA. Dawson says:
Laura... I think you misunderstand me. I think it is important to stand for your principles... especially if you are willing to pay the price for them. Had I been in her shoes, I wouldn’t have made statements that would invite a lawsuit... especially if there is high likelyhood of a loss. Sometimes when you cannot win a battle its better to avoid the conflict and find another avenue to achieve what you want.
The bottom line is... you can’t legislate stupidity out of existence. You just need to avoid the drunkards on the road of life.
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December 18, 2009, 4:27 pmA. Dawson says:
Covering all the possible permutations is absurd. People (including restaurants) can still discriminate on whatever basis they choose... they just have to come up with the right legal basis of discrimination to do it.
There really is no point to having such a law. People should not be compeled to provide services under any basis. The law should only intervene to enforce the contracts between individuals.
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December 18, 2009, 4:31 pmLaura(southernxyl) says:
Well, there’s precedent for putting conscience ahead of keeping out of trouble.
Here. This wasn’t about SSM, of course, it was about Luther’s 95 theses and the beginning of the Protestant Reformation. But it’s part of the heritage of the Protestant churches, that you state what you believe to be right and take the consequences.
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December 18, 2009, 8:09 pmA. Dawson says:
Not everyone is successful in their protest / free speech...
http://en.wikipedia.org/wiki/Bonus_Army
This probably wasn’t a good time to pipe up...
http://en.wikipedia.org/wiki/Spanish_Inquisition
http://en.wikipedia.org/wiki/Galileo_Galilei#Church_controversy
Like I said... one has to measure the risks and decided whether or not its worth it.
If you were Soviet citizen in Moscow during Stalin’s reign...
Would it have been better to protest?
...or better to flee?
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December 18, 2009, 8:29 pmLaura(southernxyl) says:
Evidently Elaine Huguenin has.
Well, it depends on what you were trying to accomplish.
If you’re in the right place at the right time, something like “at long last, have you left no sense of decency” might be what it takes to bring the whole house of cards down.
Somewhere in Solzhenitsyn’s writings he wondered why people allowed the arrests in Moscow to take place over and over, on and on. There was a woman who the police tried to take in broad daylight — she wrapped her arms around a lamppost and screamed bloody murder, and they left the scene. But she went home that night, and they took her from her bed without incident. He wondered what would have happened if people had sat up in their apartment building hallways at night armed with axes, and resisted the police, instead of allowing themselves to be picked off one by one. You just never know. Some people think a live dog is better than a dead lion, and some don’t.
But we are far afield here.
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December 18, 2009, 9:23 pmLaura(southernxyl) says:
...Oh, and let’s not forget Rosa Parks.
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December 18, 2009, 9:24 pmA. Dawson says:
My guess is that Stalin’s hench men would have gotten to the women and all the neighbors. Stalin had millions disappear. I don’t think one little apartment complex would have been much of stumbling block for that tyrant.
(Please note, I’m an avid believer in the 2nd amendment. I just recognize that the tallest blade of grass is the first to get cut.)
At the end of the day, the dead lion probably wishes he were a live dog.
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December 18, 2009, 11:07 pmLaura(southernxyl) says:
I think Solzhenitsyn was thinking about the cumulative effect on the police, of never knowing if they were going to emerge from the apartment buildings with their heads caved in. If no one ever pushes back, you can do whatever you want.
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December 18, 2009, 11:18 pmBarb says:
your first commenter asks why a photographer is different than a house painter or chef?
As a Christian I would have no problem serving gay people in my restaurant if I had one, nor any problem with painting their house, nor any problem with selling them a car –etc etc.
But i do have a problem with hosting a gay wedding in my restaurant, on church property, or with photographing the event, performing the ceremony, or catering it.
I don’t think it’s smart to try to hire a Christian photographer who feels FORCED to participate by unjust court or unjust law in recording someone’s sinful ceremony. The pics might not be particularly creative, inspired or good.
I have no problem with a gay photographer refusing to photograph MY wedding or catering my event of ANY kind –because he doesn’t like my political or religious views. That’s fine with me. I sure don’t want him taking the job and then doing a lousy job out of spite.
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May 18, 2010, 11:48 am