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.

(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.

Like I said… one has to measure the risks and decided whether or not its worth it.

Evidently Elaine Huguenin has.

If you were Soviet citizen in Moscow during Stalin’s reign…
Would it have been better to protest?
…or better to flee?

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.

Laura(southernxyl): 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.

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?

When the counselor put the same question to Luther the next day, the reformer apologized for the harsh tone of many of his writings, but said that he could not reject the majority of them or the teachings in them. Luther respectfully but boldly stated, “Unless I am convinced by proofs from Scriptures or by plain and clear reasons and arguments, I can and will not retract, for it is neither safe nor wise to do anything against conscience. Here I stand. I can do no other. God help me. Amen.”

On May 25, the Emperor issued his Edict of Worms, declaring Martin Luther an outlaw.

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.

Lymis: 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.

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.

Laura(southernxyl): 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.

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.

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.

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.

Laura(southernxyl): 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.

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.

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.

75.Randy 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.

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.

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.

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.

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.

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?

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.

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.

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…..

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.

Heheh. Yeah, as soon as I saw this case, I thought, “You should have just lied to them, lady.”

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.

That’s what the ruling says.

Mike: 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?)

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.

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.

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.

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.

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.

” 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.

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?

Nate: 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;

They don’t? Great!

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).

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.

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.

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.

(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.

Really? That doesn’t sound “pretty clear at all.

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.

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?

Joseph Slater: 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?

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.

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.

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.

uh_clem: 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.

Yet the New Mexico government is now telling Huguenin that she must create art works that she does not choose to create.

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.

uh_clem: 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.

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.

Randy: “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.

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.

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.

David Nieporent: Public accommodations laws cannot abrogate the first amendment.

Because they really are Congress?