New Mexico is one of about two dozen states in which religious objectors are presumptively entitled to religious exemptions from generally applicable laws. (About a dozen states, plus the federal government, provide this protection by statute; the other dozen states provide it as an interpretation of the state constitution’s religious freedom provisions.) Here’s the relevant statute, the New Mexico Religious Freedom Restoration Act:
A government agency [= the state or any of its political subdivisions, institutions, departments, agencies, commissions, committees, boards, councils, bureaus or authorities] shall not restrict a person’s free exercise of religion [= an act or a refusal to act that is substantially motivated by religious belief] unless:A. the restriction is in the form of a rule of general applicability and does not directly discriminate against religion or among religions; and
B. 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.
Here’s 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 sexual orientation discrimination in public accommodation:
1. Elane Photography is not a “person,” because it’s a “limited liability company” (here, a husband-and-wife company for which Elaine Huguenin is the head photographer).
2. In any event, the law doesn’t apply to a private lawsuit between two parties.
3. The law “is the least restrictive means to further the government’s interest in eliminating discrimination against certain groups,” because “[t]here is no doubt that the State of New Mexico has a compelling interest in reducing, if not eradicating, acts of discrimination.” “[A]ssuring women [or any disadvantaged group] equal access to ... goods, privileges, and advantages clearly furthers compelling state interests.”
But this strikes me as quite mistaken. First, “persons” generally includes corporations, and whatever you might say about that when it comes to large, impersonal entities, surely that makes sense here. Requiring a small, closely-held company to do something burdens the rights of its owners, especially when the owners are the primary employees who would have to perform the required acts. I take it, for instance, that if a law requires certain businesses to be open Saturdays, and a Jewish objector seeks an exemption (assuming there’s a religious exemption statute in the jurisdiction), it shouldn’t matter whether his small store is a sole proprietorship, a partnership, or a limited liability company. Plus, for whatever it’s worth, the federal RFRA has been applied to protect the rights of churches, which are corporations; if such corporates are “person[s],” why wouldn’t small husband-and-wife limited liability companies be as well?
2. The federal circuits currently disagree on whether the federal RFRA is applicable to civil lawsuits between private parties that are based on federal statutes. But the New Mexico court is mistaken in saying that it “has ... been established that a federal statute similar to the NMRFRA cannot be raised in suits between private parties where the government is not also a party”; in fact, there is a disagreement between the Second and Seventh Circuits on the matter. Moreover, the statutory text seems to me to cover courts making decisions in civil statutory lawsuits between private parties. A court order imposing damages on someone for a “refusal to act that is substantially motivated by religious belief” involves “the state” acting. Nor does the often-cited textual argument to the contrary — that the remedial provision authorizes “relief against a government agency” — persuade me. One form of appropriate relief against a government agency (here, a state court or the state Human Relates Commission) is simply reversal on appeal of a decision that burdens religious practice.
3. Finally, I discuss the compelling interest argument more here, but here’s the short version: How can New Mexico argue that it has such a compelling interest in preventing discrimination based on sexual orientation, when it comes to same-sex weddings, when it itself refuses to recognize same-sex weddings? New Mexico doesn’t give same-sex couples a large range of important governmental benefits that it gives opposite-sex couples. Yet when Elaine Huguenin decides to refuse to provide same-sex couples a service that is
- much less valuable than the benefits that New Mexico refuses to provide,
- likely available from many other photographers (something that can’t be said for most government-provided legal benefits), and
- probably available at a higher quality from many other photographers, since I assume that a photographer who sees a same-sex wedding as a beautiful and holy event will probably do a better job of capturing its beauty than one who sees a same-sex wedding as a sin
then New Mexico says that there’s a compelling government interest in preventing sexual orientation discrimination, and the only way of adequately serving that interest is requiring all wedding photographers to photograph same-sex weddings on par with opposite-sex weddings, regardless of their religious beliefs. That doesn’t strike me as particularly plausible.
Elane Photography’s lawyers report that they will appeal, to the New Mexico Court of Appeals.
uh_clem says:
I assume that a photographer who sees a same-sex wedding as a beautiful and holy event will probably do a better job of capturing its beauty than one who sees a same-sex wedding as a sin
Ah yes. The “aren’t they happier eating their own kind of food prepared by their own people” argument. Lester Maddox would be proud.
Quote
December 16, 2009, 5:03 pmEugene Volokh says:
Uh_Clem: Can you set aside the snark for a moment, and actually confront the substantive argument I’m making here? (Might there, for instance, be a difference between wedding cooking and wedding photography?)
Quote
December 16, 2009, 5:11 pmptt says:
If the Huguenins had wanted the protections afforded an organization that incorporates as a church, maybe they should have incorporated as a church. They didn’t.
Quote
December 16, 2009, 5:19 pmNate says:
Eugene,
On how New Mexico can argue that it has such a compelling interest in preventing discrimination based on sexual orientation when it does not recognize same-sex marriage or unions or give a large range of important benefits to same-sex couples, you make a good policy point, but it’s not a legal one.
It doesn’t make much sense to condition a state’s adoption of anti-discrimination statute that includes sexual orientation as an impermissible basis on which to discriminate on its adoption of the legal recognition of same-sex couples. Each statutory regime operates in entirely separate spheres, even though the inclusion of sexual orientation as a basis within anti-discrimination statutes lends support to the proposition that the state may have less of an interest in preventing homosexuals from participating in other state-created benefits.
Quote
December 16, 2009, 5:20 pmArrowSmith says:
Bottom line is — you want to discriminate against people on basis of race, religion, sexual orientation — don’t go into business. America is righting historical wrongs!
Quote
December 16, 2009, 5:27 pmNate says:
Re: the corporations as persons argument, though this is usually the case (see 1 U.S.C. section 1), it makes no sense here to include associations, corporations, and organizations as “persons” because only human beings freely exercise religion. Corporations, associations, organizations, churches, etc. may be religiously associated, but do not “exercise” religion as is intended to be protected here in the NMRFRA from state action.
Quote
December 16, 2009, 5:30 pmDilan Esper says:
Finally, I discuss the compelling interest argument more here, but here’s the short version: How can New Mexico argue that it has such a compelling interest in preventing discrimination based on sexual orientation, when it comes to same-sex weddings, when it itself refuses to recognize same-sex weddings?
I think this casts the argument wrong, especially since so many opponents of gay marriage pitch that there is something special and definitional about marriage that excludes gays and lesbians from the institution.
If you assume that this is the state of New Mexico’s position on gay marriage, then the issue is simply whether the state has a compelling interest in preventing discrimination based on sexual orientation, when it comes to same-sex commitment ceremonies as opposed to opposite sex commitment ceremonies.
Further, if I could make a more philosophical point– the existence of the US Senate does not demonstrate that the US does not have a commitment to the principle of one-person one-vote. There’s just a grandfathered-in exception that we aren’t doing anything about. Reynolds v. Sims is still the law of the land.
Well, New Mexico has this one island of sexual orientation discrimination, which the state has no interest in expanding in any way. Such discrimination, in every other facet of society, violates fundamental public policies of the state. So the state doesn’t want to create any derivative rights to discriminate against gays that flow from the prohibition on gay marriage. Makes perfect sense to me.
Finally, I would argue that prohibiting sexual orientation discrimination should be considered a compelling interest as a matter of black-letter First Amendment law, based on the importance of the goal and without regard to how well the states actually attain it.
That said, as I note in the earlier thread, I would resolve this case on the narrow ground that wedding photography is entirely un-expressive and un-creative, and therefore leave room for more expressive and creative speakers to engage in viewpoint discrimination.
Quote
December 16, 2009, 5:35 pmRandy says:
Arrow: ” America is righting historical wrongs!”
Actually, it’s preventing new wrongs from arising. and these laws cover many more instances than just the three that you mention.
Back to the argument: I think the court has a problem with the statute. Perhaps it would have been better to declare the statute in direct conflict with the nondiscrimination law (at least in this case), or determine that both are equally applicable yet each would lead to a differing result. Then proceed as a conflict of laws case.
Quote
December 16, 2009, 5:37 pmYankev says:
Some people might even posit that there might be a difference between sexual orientation and race. Or between a same sex union and a wedding.
Quote
December 16, 2009, 5:52 pmuh_clem says:
(Herewith an attempt at snark-free dialogue)
I don’t see that there is much difference. I’ve seen thousands of wedding photographs and every one looks exactly the same as ever other, including those of my own wedding. Wedding photography is about as expressive as the guy running the hot dog machine at Oscar Meyer.
This perspective may inform my view of the matter more than it should, but I find the “artiste” defense of Elaine’s refusal self-serving.
Photography can be “deeply expressive” (as one poster put it), but it’s not necessarily so. It can be purely technical (lighting, composition, focus, f-stop, etc.) In the case of wedding photography my view is that it’s mostly technical.
For me, it is exactly the lack of expressiveness in wedding photography that makes me unconcerned about some putative first amendment violation.
I do think you have a reasonable apprehension that this ruling could be interpreted too broadly to compel expressions in a way that might violate the first amendment. For instance, forcing someone to write a song or compose an essay on a subject counter to their beliefs would be troublesome. But snapping some pictures? C’mon.
I look at it this way: If my boss told me that I had to get up in front of the other employees and recite the Vagina Monologues and include a generous amount of personal details, I’d be rather put out. That’s compelling expression from me that I don’t want to give. But were he to give me a camera and say “Take some photos” that’s not nearly as invasive since I’m not really “expressing” anything by snapping a few shots. If my job is to take pictures, I don’t think I could refuse on first amendment grounds.
Just because photography can be expressive doesn’t mean that it always is.
Quote
December 16, 2009, 5:56 pmArrowSmith says:
I didn’t realize the Constituion differentiated between “creative artists” and ordinary schlubs. *snark snark*
Quote
December 16, 2009, 5:58 pmRandy says:
As I said in the other thread, I don’t buy the artiste argument either, but for a different reason. If being ‘expressive’ or an artist is the loophole that allows you to get around discrimination, you’ll find that suddenly every occupation is ‘expressive.’
Quote
December 16, 2009, 6:46 pmbyomtov says:
Might there, for instance, be a difference between wedding cooking and wedding photography?
Maybe not. At least some chefs, caterers, bakers, etc. consider themselves to be doing specially creative work rather than just providing a technical service. If a chef can refuse to prepare food for a gay commitment ceremony, can the same chef refuse to provide service to gay couples at her restaurant, on exactly the same grounds?
Since this can be extended absurdly, is it possible the issue is the content of the expression rather than simply the act of expression itself? Some creative services, such as web design, advertising copywriting, for example, clearly require an expression of approval of the client’s activity. You don’t write an ad that says “Volokh Vodka tastes lousy, and may make you blind.”
But this certainly doesn’t apply to the chef. Preparing a signature dish for a couple in a restaurant hardly implies approval of their relationship. So to the extent wedding photography is expression, does it necessarily express approval of the event? And if not, what exactly is being compelled?
Quote
December 16, 2009, 6:51 pmSteve says:
Some creative services, such as web design, advertising copywriting, for example, clearly require an expression of approval of the client’s activity.
I don’t know if I agree with that. When I see a website, or an advertisement, I don’t think “oh, the ad agency likes this product.” In fact I’m pretty sure many ad agencies will happily take your money even if your product sucks. It’s a question, I guess, of how visible the speaker is when the message is conveyed; when you look at a wedding photograph you have no idea who took the picture and you don’t care whether they approved of the wedding.
Quote
December 16, 2009, 6:55 pmHans Bader says:
The state’s interest in eradicating sexual orientation discrimination in the private sphere is not compelling enough to overcome the photographer’s freedom of religion and free speech rights (even putting aside the fact that there was no violation of the state’s antidiscrimination statute, under a reasonable reading of the statute).
First, it cannot be treated as compelling for purposes of this case because the state of New Mexico itself discriminates based on sexual orientation in a number of contexts (not just in not treating civil-commitment ceremonies as being analogous to marriages, assuming arguendo that that is discrimination), so it is barred from arguing that eradicating discrimination based on sexual orientation is a compelling interest. That’s what the Supreme Court made clear in its Lukumi decision, where it held that a local government could not treat an important interest as compelling where it inconsistently failed to advance that interest, even when in contexts where doing so would have cost nothing in terms of First Amendment rights. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546–47 (1993) (“Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling”). (This point is developed at length in the briefs in two court cases, Thomas v. Anchorage Equal Rights Commission and Lutheran Church v. FCC.)
So holding Elane Photography liable can’t be justified under the strict scrutiny mandated by the First Amendment and the New Mexico Religious Freedom Restoration Act.
Second, eradicating purely private sexual-orientation discrimination is simply not, legally-speaking, a compelling state interest outside the employment context. See Curran v. Mt. Diablo Council of Boy Scouts of America, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (boy scouts were protected by First Amendment freedom of expressive association against being forced by California public accommodation and gay-rights laws to include gay people as members and leaders, since being forced to do so did not serve a compelling state interest), aff’d, 952 P.2d 218 (Cal. 1998).
Moreover, there is an additional, alternative First Amendment defense that applies here, unrelated to freedom of religion: freedom from compelled speech. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).
The anti-discrimination statute is being applied by the Commission in a very peculiar way. (I say that as an attorney who used to help adjudicate discrimination cases at the U.S. Department of Education, Office for Civil Rights). And the First Amendment defense is straightforward.
Photography is expressive; most businesses (say, selling hot dogs) are not. Ruling in favor of the photographer is not only consistent with the statute (which forbids discrimination based on customers’ sexual orientation, not based on the ceremony they wish to capture on film), but even if that were not the case, ruling in favor of the photographer would not carve out a big exception to the statute’s reach or vitiate any important state interests.
Since the photography is expressive, the case should be governed by the U.S. Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), which held that a state’s gay-rights law and public-accommodation law could not be used to force an expressive activity (a parade, in that case) to embrace a message of support for gay causes, because doing that violated the First Amendment (even though the parade organizers merely wished to avoid talking about gay issues, and did not claim to harbor any anti-gay beliefs that would be abridged by the forced inclusion of a gay pride contingent in the parade).
Quote
December 16, 2009, 7:01 pmHans Bader says:
The trial court’s claim that religious-freedom guarantees like NMRFRA don’t apply to suits between private parties is utterly irrelevant to this case (the Human Rights Commission went after the photographer, not just private parties) and obviously wrong.
The Supreme Court has often held that private parties can raise free speech or religious-freedom objections to lawsuits by private parties, see Hustler Magazine v. Falwell (1988) (private lawsuit for intentional infliction of emotional distress was barred by First Amendment), Boy Scouts v. Dale (private lawsuit for sexual orientation discrimination barred by First Amendment), and the same principle applies to state “human-rights” agencies, see Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995) (state agency could not fine employer for religious harassment based on offensive speech, since it was protected by state constitution’s religious-freedom guarantees).
So is the trial court’s claim that only natural “persons” can rely on religious freedom. Many Supreme Court cases involve religious freedom claims by religious groups, and appeals court decisions uphold the religious freedom claims of religious colleges and other corporations. GOOD NEWS CLUB V. MILFORD CENTRAL SCHOOL, 533 U.S. 98 (2001); Columbia Union College v. Oliver, 254 F.3d 496 (4th Cir. 2001)
The State of New Mexico’s position reaks of hypocrisy.
It is punishing a wedding photographer for refusing to photograph what is NOT a wedding, but a “commitment ceremony.” The State of New Mexico treats non-married “committed” couples as different from married couples for a host of purposes, belying any claim that they are legally analogous to marriages.
Yet, now the State of New Mexico, in the form of the Human Rights Commission, claims that the commitment ceremony IS akin to a wedding, and must be photographed as such — and any refusal counts as discrimination against gays.
Moreover, elsewhere, the State of New Mexico acts as if same-sex commitments are not analogous to straight ones, much less marriages, since the State itself bans gay marriage. Maybe the State should practice what it preaches and stop banning gay marriage.
Quote
December 16, 2009, 7:11 pmDilan Esper says:
I didn’t realize the Constituion differentiated between “creative artists” and ordinary schlubs.
Well, consider whether, for instance, strip club zoning (which is constitutional) can be applied to require that a theater that stages “Hair” be located in the Red Light District. If your answer is “no”, describe why and show your work.
Quote
December 16, 2009, 7:34 pmBK says:
As a guy who just got married...couples have a huge interest in avoiding crooked pictures (they won’t work in a frame!) or pictures that are poorly lit, etc. I agree with the whole “slippery slope” argument regarding what may be classified as art, but in my mind there’s no question that a wedding photo is something that is “made” with varying degrees of skill.
Quote
December 16, 2009, 7:39 pmbyomtov says:
Steve,
When I see a website, or an advertisement, I don’t think “oh, the ad agency likes this product.” In fact I’m pretty sure many ad agencies will happily take your money even if your product sucks.
True, but the product the agency provides its client is an expression of approval, and is explicitly intended be used to promote the company or product.
when you look at a wedding photograph you have no idea who took the picture and you don’t care whether they approved of the wedding.
Also true, usually. The point, to me, is whether the product, the photographs themselves, express approval. I don’t think they do, necessarily. Photographs do not inherently express approval of the activity photographed. Think of photojournalism.
Quote
December 16, 2009, 7:41 pmDilan Esper says:
That’s what the Supreme Court made clear in its Lukumi decision, where it held that a local government could not treat an important interest as compelling where it inconsistently failed to advance that interest, even when in contexts where doing so would have cost nothing in terms of First Amendment rights.
Hans, in Lukumi, the purpose of the animal sacrifice laws was to target Santeria practitioiners. In other words, a facially neutral statute was a pretext to go after a particular religious denomination.
Laws that prohibit discrimination based on sexual orientation target nothing but bigots and are not pretextual. They are the classic example of a generally applicable law (and in the free exercise context would be governed by Smith, not Lukumi).
So holding Elane Photography liable can’t be justified under the strict scrutiny mandated by the First Amendment and the New Mexico Religious Freedom Restoration Act.
Hans, I didn’t know you are such an expert on the New Mexico Religious Freedom Restoration Act. Could you tell us about the legislative history? The committee reports? The relevant cases interpreting it? Or are you just talking out of your rear end?
Moreover, there is an additional, alternative First Amendment defense that applies here, unrelated to freedom of religion: freedom from compelled speech. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).
Compelled speech is the issue, but what speech is being compelled? The photographer is not being compelled to write a book or read kidnapper’s demands or endorse a political party. She is being compelled to take a photograph that is identical to every other photograph she takes at every other wedding.
You are basically arguing “because it would be really bad to force an anti-war author to write war propaganda, it is equally bad to force a wedding photographer to click a shutter”. I’m sorry, but that’s just plain DUMB.
Second, eradicating purely private sexual-orientation discrimination is simply not, legally-speaking, a compelling state interest outside the employment context. See Curran v. Mt. Diablo Council of Boy Scouts of America, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (boy scouts were protected by First Amendment freedom of expressive association against being forced by California public accommodation and gay-rights laws to include gay people as members and leaders, since being forced to do so did not serve a compelling state interest), aff’d, 952 P.2d 218 (Cal. 1998).
Bigots may believe this, but the state of New Mexico is entitled to think otherwise, and it would also be correct to find as a matter of federal law that the interest is compelling.
Photography is expressive; most businesses (say, selling hot dogs) are not.
As I said above, the analogy is to nude dancing in the strip club. Sure it’s expressive, but it isn’t THAT expressive. Imposing an incidental burden on this sort of minimal expression is not the same thing as imposing a burden on more creative expression.
I will agree with you on one point– there is state action here, and the photographers certainly should have standing to sue.
Quote
December 16, 2009, 7:42 pmwolfefan says:
Someone else mentioned this in one of the many threads on this case, but I can’t find it right now so apologies for asking here. IANAL, so this is a genuine question (and apologies if it’s a stupid one.) Does it matter that one of the entities invoved is a LLC as opposed to a person? Does a business getting whatever benefits are offered by New Mexico’s regulatory schemes have the same rights of refusal as an individual who does not use the state structure?
Quote
December 16, 2009, 8:27 pmjrose says:
The definition of “free exercise of religion” [an act or a refusal to act that is substantially motivated by religious belief] seems too broad to me. It would permit a person to refuse to hire a black person for a secular job if their religious belief was blacks were inferior.
Is this the standard typically used in other RFRA statutes? I would hope there is another standard that does not exempt secular acts that do not intefere with the ability to believe or practive religion.
Quote
December 16, 2009, 8:56 pmCompelled expression and the New Mexico photographer case says:
[...] creators to “create speech that they don’t want to create.” He also adds posts on the religious accommodation angle, the inevitable what-about-racists objection, and the role of state laws prohibiting [...]
Johnny Mac says:
Eugene,
IANAL so obviously I don’t have your depth of knowledge on what does and constitute First Amendment issues. However, I think you are overstating the “art” in wedding photography.
Yes, it can be performed with varying degrees of skill. That alone does not make it art.
If a (photographic) artist is in the business of choosing which subjects to photograph, and then trying to sell them, he is engaged as an artist. His First Amendment rights are protected: no one can compel him to photograph a subject in which he isn’t interested.
However, by taking the step of offering to take photos of specific persons in exchange for money, he is now offering a service for hire. At that point, all restrictions that apply to anyone else in business–wedding caterers, for example–also apply to the photographer.
Everything can be done in a creative manner. That alone does not make one an artist.
The issue of gay rights is completely orthogonal. Read “African American” for gay couple and the issues remain the same.
Quote
December 17, 2009, 8:40 amJohnny Mac says:
Eugene,
IANAL so obviously I don’t have your depth of knowledge on what does and constitute First Amendment issues. However, I think you are overstating the “art” in wedding photography.
Yes, it can be performed with varying degrees of skill. That alone does not make it art.
If a (photographic) artist is in the business of choosing which subjects to photograph, and then trying to sell them, he is engaged as an artist. His First Amendment rights are protected: no one can compel him to photograph a subject in which he isn’t interested.
However, by taking the step of offering to take photos of specific persons in exchange for money, he is now offering a service for hire. At that point, all restrictions that apply to anyone else in business–wedding caterers, for example–also apply to the photographer.
Everything can be done in a creative manner. That alone does not make one an artist.
The issue of gay rights is completely orthogonal. Read “African American” for gay couple and the issues remain the same.
Quote
December 17, 2009, 8:40 amDavid Nieporent says:
Well, you’re in good company, Dilan. Ayn Rand thought the same thing. (Well, sort of.)
Quote
December 17, 2009, 8:42 amHans Bader says:
Dilan Esper may feel it is “just plain dumb” to treat photography as expressive, as the wedding photographers’ lawyers argue, but federal court rulings recognize its expressive nature as obvious.
Copyright attaches to photographs as a matter of course based on the legal judgment that they are inherently expressive, so the wedding photographer has a valid First Amendment claim based on freedom from compelled speech.
Dilan’s attack on the expressive value of wedding photos is ironic: Dilan has argued that pornography is protected speech (as it often is), although pornography consists of photos. Wedding photos are at least as expressive as pornographic ones. I guess Dilan’s abridged version of the First Amendment has different rules for conservative Christian wedding photographers (not entitled to free speech) than for liberal pornographers like Larry Flynt or Hugh Hefner.
Since photography is expressive, the photographer should win based on binding U.S. Supreme Court precedent, since the case should be governed by the U.S. Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), which held that a state’s gay-rights law and public-accommodation law could not be used to force an expressive activity (a parade, in that case) to embrace a message of support for gay causes, because doing that violated the First Amendment (even though the parade organizers merely wished to avoid talking about gay issues, and did not claim to harbor any anti-gay beliefs that would be abridged by the forced inclusion of a gay pride contingent in the parade).
Even if that were not the case, it is simply not true, as Dilan suggested elsewhere, that the state’s interest in eradicating sexual-orientation discrimination overrides First Amendment rights. The Supreme Court rejected that argument in Boy Scouts v. Dale, 530 U.S. 640 (2000), which ruled that the Boy Scouts could exclude gay members and leaders based on the group’s First Amendment freedom of expressive association (even though that clearly undermined the state’s ban on sexual orientation discrimination).
Dilan also suggests that only “bigots” could question whether eradicating sexual-orientation discrimination by private businesses is a compelling interest that overrides First Amendment rights. Given that distinguished judges on the California Court of Appeal did so in the Curran case, and that commentators, including gay commentators, have done so as well, it would appear that Dilan’s claim is an unfounded ad hominem attack. See Curran v. Mt. Diablo Council of Boy Scouts of America, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (boy scouts were protected by First Amendment freedom of expressive association against being forced by California public accommodation and gay-rights laws to include gay people as members and leaders, since being forced to do so did not serve a compelling state interest), aff’d, 952 P.2d 218 (Cal. 1998).
Quote
December 17, 2009, 10:48 amADF Alliance Alert » Eugene Volokh on Elane Photography says:
[...] Religious Accommodation Statutes and a Right Not To Participate in Same-Sex Weddings: “I take it, for instance, that if a law requires certain businesses to be open Saturdays, and a Jewish objector seeks an exemption (assuming there’s a religious exemption statute in the jurisdiction), it shouldn’t matter whether his small store is a sole proprietorship, a partnership, or a limited liability company. Plus, for whatever it’s worth, the federal RFRA has been applied to protect the rights of churches, which are corporations; if such corporates are ‘person[s],’ why wouldn’t small husband-and-wife limited liability companies be as well?” [...]
mischief says:
She also thought movies, even silent ones, were art, which is obviously inconsistent. Being a series of non-art is not art. All the series would do is demonstrate something that already exists. If the movie can recreate, so can a photograph.
Quote
December 17, 2009, 1:10 pmbluprntguy says:
Volokh: The photographer that charges for their services at events IS providing a SERVICE. It is the same as a lunch counter, a department store, or any other business that exists in our society. They ALL are subject to anti-discrimination laws.
I think you are confusing this photographer with an “artist”. Artists create art and THEN in turn sell that art to others. Artists are free to choose their subjects and could decide to only photograph ‘straight white people’ if they chose.
Quote
December 17, 2009, 1:23 pmDilan Esper says:
Dilan Esper may feel it is “just plain dumb” to treat photography as expressive
It’s not dumb to call photography expressive. It’s dumb to make no distinctions between different types of expression.
Our First Amendment jurisprudence makes such distinctions all the time.
Copyright attaches to photographs as a matter of course based on the legal judgment that they are inherently expressive
Hans, I am beginning to think your argument style is just “throw stuff at the wall and hope something sticks”. Copyright’s originality standard is extremely minimal, as set out in the Feist case. Anything more original than the alphabetization of the phone book is copyrightable.
Again, a strip club performance is clearly copyrightable. And yet our First Amendment jurisprudence does not consider it to be particularly original or deeply expressive.
Dilan’s attack on the expressive value of wedding photos is ironic: Dilan has argued that pornography is protected speech (as it often is), although pornography consists of photos. Wedding photos are at least as expressive as pornographic ones. I guess Dilan’s abridged version of the First Amendment has different rules for conservative Christian wedding photographers (not entitled to free speech) than for liberal pornographers like Larry Flynt or Hugh Hefner.
Porn should be strongly protected expression precisely because porn communicates a viewpoint about sex, not because it depicts it. In any event, porn, like nude dancing, receives more limited First Amendment protection than political expression. You are arguing for a rule that treats unartistic shutter clicks as the same thing as a political tract. That’s why your argument is dumb.
Since photography is expressive, the photographer should win based on binding U.S. Supreme Court precedent, since the case should be governed by the U.S. Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), which held that a state’s gay-rights law and public-accommodation law could not be used to force an expressive activity (a parade, in that case) to embrace a message of support for gay causes, because doing that violated the First Amendment (even though the parade organizers merely wished to avoid talking about gay issues, and did not claim to harbor any anti-gay beliefs that would be abridged by the forced inclusion of a gay pride contingent in the parade)..
You apparently don’t know how precedent works (not surprising given you are making dumb arguments). Hurley invoves parades that have a specific message. This case involves a wedding photographer who communicates no message. Hurley cannot “control” this case– at the most, it can be persuasive authority. If there is a Supreme Court case on wedding photography, I’d be glad to know about it and then we can talk about “controlling” authority.
Even if that were not the case, it is simply not true, as Dilan suggested elsewhere, that the state’s interest in eradicating sexual-orientation discrimination overrides First Amendment rights. The Supreme Court rejected that argument in Boy Scouts v. Dale, 530 U.S. 640 (2000), which ruled that the Boy Scouts could exclude gay members and leaders based on the group’s First Amendment freedom of expressive association (even though that clearly undermined the state’s ban on sexual orientation discrimination).
Again, since you like to make dumb arguments, you throw everything at the wall. Dale does not hold that eliminating sexual orientation discrimination isn’t compelling. It carves out an exception for private groups whose message is homophobic. This exception applies equally to other sorts of groups– the KKK can’t be required to admit blacks either, even though eradicating racial discrimination is a compelling interest.
Dilan also suggests that only “bigots” could question whether eradicating sexual-orientation discrimination by private businesses is a compelling interest that overrides First Amendment rights. Given that distinguished judges on the California Court of Appeal did so in the Curran case, and that commentators, including gay commentators, have done so as well, it would appear that Dilan’s claim is an unfounded ad hominem attack. See Curran v. Mt. Diablo Council of Boy Scouts of America, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (boy scouts were protected by First Amendment freedom of expressive association against being forced by California public accommodation and gay-rights laws to include gay people as members and leaders, since being forced to do so did not serve a compelling state interest), aff’d, 952 P.2d 218 (Cal. 1998).
1. That was 1994. We’ve come a long way in terms of fighting homophobia since then, and we should recognize that fact by recognizing preventing discrimination against gays as a compelling interest.
2. Again, the basis of the Boy Scouts’ exemption is that they are communicating a bigoted message and bigots have the right to exclude the people they are prejudiced against from their organizations. The KKK gets to exclude blacks, and the Boy Scouts get to exclude gays.
But that doesn’t prove that the interest in preventing discrimination against gays isn’t compelling. Only bigots think it isn’t compelling to prevent discrimination against gays.
Quote
December 17, 2009, 1:46 pmDavid Nieporent says:
I don’t think that there’s any doubt that the photographer is providing a service. The claim that this is “the same as” any other business, on the other hand, is something that needs support, not mere assertion. And the claim that they are “all subject to anti-discrimination laws” is a mere conclusion.
I think you are confusing your own personal definitions with reality and the law. I don’t know where you get the idea that there’s some legal distinction between “service” and “artist” or that artists can’t provide services.
Quote
December 17, 2009, 1:53 pmDavid Nieporent says:
And libertarians.
Quote
December 17, 2009, 1:55 pmChris Travers says:
Dilan:
The job of a wedding photographer is to communicate a viewpoint about the wedding. If just depicting is is good enough, then the court COULD rule that the wedding photographer MUST tax X number of photographs with proper focus and lighting, but that overall aesthetic quality of the photographs doesn’t matter. The photographer would then be free to show up with a consumer-grade camera, point and click that number of times and leave. But that would still be discriminatory would it not?
Quote
December 17, 2009, 2:24 pmChris Travers says:
Randy:
Every occupation IS expressive. However, what makes a photographer different in my view is that the expressive elements are very tightly bound to the act of delivering the service.
Going back to the cake decorating analogy. Cake decorating is expressive and artistic. I think we can all agree with that. However the end result of this work is a decorated cake. If the same decorations on the cake are available to a same-sex couple as a heterosexual couple, the expressive value of the cake is not compromised. A cake decorator might then only create cakes which have figurines of opposite-sex bride/groom couples on the top. Would that by itself be discriminatory even if the cakes were available for delivery to same-sex marriage events? Certainly nothing prevents the couple from substituting their own figurines after it is delivered.....
But photography is different. The result is an artistic portrayal of a specific event.
Quote
December 17, 2009, 2:33 pmbluprntguy says:
I made the distinction for clarity, clearly, an artist could provide a service. However, the issue is at hand, is the services that the ‘artist’ is providing to the public. The laws require the ‘artist’ to provide equal services and to avoid discriminating against customers based on race, sexual orientation, etc. The artist remains completely FREE to express themselves however they want.
Using your logic, “Subway” could refuse to serve sandwiches to African Americans citing the first amendment rights of their ‘sandwich artists.’
Quote
December 17, 2009, 3:11 pmFantasiaWHT says:
I sing occasionally at weddings. I disapprove of homosexual marriage. If I turned a little more pro at it, and started offering my services in advertisements, maybe formed an LLC for the purpose, could I be forced to sing at a same-sex ceremony? Would I have to sing the songs they picked even if the message was one I disagreed with?
I don’t see that that is significantly different than saying a photographer has to take photographs and reproduce a union he disagrees with.
Quote
December 17, 2009, 3:22 pmbluprntguy says:
So, a photographer should be able to refuse to photograph an African American couple by citing that it compromises the “expressive value of the photograph”?
If you allow one businesses to discriminate against one set of customers (gays and lesbians), I assume you are willing to let ALL businesses chose who they can and can not serve. Can the lunch counter in Georgia refuse to serve “those negroes” again?
Quote
December 17, 2009, 3:25 pmChris Travers says:
bluprntguy:
That would be where the argument would lead. I would be willing to entertain a counterargument at the end of segregation that the services were sufficiently difficult to procure that temporary restriction in Constitutional rights were necessary to fill a vital government interest, but I don’t think that is the case today unless one could demonstrate widespread discrimination of this sort and that it was causing real hardship.
In other words, “Black or Interracial couples can’t get wedding photographers at all over much of the state so we need to say that for the next decade no such discrimination is allowed even in Constitutionally protected territories” might be something I would think about but “we should punish anyone for refusing any service to anyone of a protected category even in areas implicating expression” isn’t enough by itself.
Quote
December 17, 2009, 4:21 pmChris Travers says:
Not at all. It only applies to expressive elements inseparable to the service rendered. So I don’t think a cake decorator should be able to refuse to supply cakes to an interracial wedding, but I don’t think they should be required to decorate it specifically tailored to an interracial wedding either.
Similarly the sandwich shop owner would be free to greet every black customer with “By law I have to serve you if you want to eat here, but I want you to know that I would rather that you take your business somewhere else” and might even be free to decorate the restaurant with themes reminiscent of the KKK, but could not legally refuse to provide the same sandwich to a black customer that might be provided to a white customer.
A photograph is different because these elements are tightly bound. Hope that clears things up,
Compare to blueprint making, for example. I would argue that is expressive, but the expression is independent of who you render the service to. If you don’t want to create blueprints for a postmodern design, that is your choice. But you can’t refuse to create the same blueprints you would make for a white guy for a black guy. The photographs are, however, not the same.
Quote
December 17, 2009, 4:29 pmbluprntguy says:
No, your argument leads to a “subway” sandwich shop being able to refuse service to African Americans due to the first amendment rights of it’s “sandwich artists.” It’s stupid.
When you CHOOSE to offer up your SERVICES in exchange for MONEY, you agree to abide by the laws that govern that commerce. Our laws currently say you can’t refuse a service because of race or sexual orientation to someone that you would normally provide to someone else. If you don’t want to have to provide this service when you disagree, then don’t offer your services at all.
If you want to discriminate with your ‘art’ then you are free to do so, as long as you aren’t accepting money for your services. If this artist wanted to express herself under her first amendment rights, she is still free to hire models, stage straight weddings, and produce only images of straight couples for as long as she likes. She could even sell her images without fear of lawsuit.
The issue at hand is entirely removed from first amendment concerns. The photographer decided to enter the public market and to provide services to the general public in order to make a few bucks. The photographer can not refuse to provide those services to certain people, or they have to pay a fine.
Quote
December 17, 2009, 4:54 pmDilan Esper says:
The job of a wedding photographer is to communicate a viewpoint about the wedding.
Look, you can certainly stretch things and argue this. But part of my problem is that nobody on your side seems to be aware that they are stretching things.
Wedding photographers are basically technicians. If you want to argue that the danger of a chill is so great that we should never override the political desires of even a technician engaged in expressive activity, that’s fine. I don’t agree with it, but that’s an argument.
But these claims that wedding photographers are the second coming of Ansel Adams are just silly.
Quote
December 17, 2009, 5:02 pmRandy says:
Fantasia: ” If I turned a little more pro at it...”
You would need to take singing lessons to improve your voice. Almost all vocal instructors are gay men, some of whom may be in a ‘homosexual marriage.” Not to mention the fact that professional singers need to wear spectacular outfits and have their hair done up for the occasion, and guess who you need to turn to for all that?
I say, find another career that doesn’t depend so much on gay men for your success. We wouldn’t want you to compromise those stellar morals of yours.
Quote
December 17, 2009, 5:05 pmRandy says:
“Would I have to sing the songs they picked even if the message was one I disagreed with?”
Well, there’s another toughie for you, Fantasia. While I don’t think there are too many songs that praise the virtues of gay marriage (I’ll have to tell our homo music industry to get crackin’), there no doubt are many songs whose music or lyrics have been written by homos. Anything by Cole Porter, Jerry Herman, Stephen Sondheim, Leonard Bernstein, Lorenz Hart, or many others would be off limits to you. You wouldn’t want people to think that you, an almost professional singer, support the notion that two men are having sex within the context of a legally sanctioned marriage, would you?
I’m sorry that gays have politicize the American songbook so much that you really have little good material to work with anymore. I’d suggest opera, but you know, the only men who support opera nowadays.....
Quote
December 17, 2009, 5:13 pmChris Travers says:
bluprntguy:
No. Because the result of a sandwich artist’s decisions are the contents of the sandwich. If a sandwich artist refuses to use kosher meats that does not mean the same thing as refusing to sell a non-kosher sandwich to a Jew. Fortunately US law can’t possibly maintain that these are the same (in part because judges cannot determine to what extent any given product is kosher).
A photography artist’s decisions result in the contents of the photograph. A photographer could no more refuse to sell a photograph to a person based on race or sexual orientation as a sandwich shop could refuse to sell sandwiches to the same person. But one can no more compel a sandwich shop to accommodate Jewish dietary rules than one should be able to compel a photographer to take a photo accommodating a subject matter the photographer doesn’t want to do for whatever reason.
Quote
December 17, 2009, 5:24 pmJMA says:
With regard to whether or not X photograph expresses approval of X subject:
How many of you want to have wedding photographs that just scream “I think this is a bad idea” when you look at them?
...of course a wedding photograph is intended to express approval. They’re practically a good luck charm. :\
(“Just think–in five or six years, we’ll _still_ be annoying our party guests with these pics...”)
Quote
December 17, 2009, 5:25 pmChris Travers says:
Bluprntguy:
On the other hand SHOULD all sandwich shops be liable for discrimination if they fail to provide halal and kosher food?
Quote
December 17, 2009, 5:27 pmChris Travers says:
Dilan:
Ok, if a certain perspective isn’t required, why don’t you just hire wedding photographers to set up continual digital video cameras from a number of locations ahead of time (being just technicians) and just record the whole event? The couple could then order stills of frames after the fact.
Do you HONESTLY think folks would be happier with this type of setup?
Where artistic and aesthetic sense is required, there the expression is too.
Quote
December 17, 2009, 5:30 pmJMA says:
“I think you are confusing this photographer with an ‘artist.’”
In response to this I ask: how much great art was created for a paying client?
Quote
December 17, 2009, 5:32 pmHans Bader says:
Most great art was created for paying clients. Like the frescoes in the Sistine Chapel, which Michelangelo painted on commission. It was still his expression, though.
Quote
December 17, 2009, 5:58 pmChris Travers says:
What I am getting at:
Is a photographer refusing to photograph certain types of events (same-sex marriages, black folk, interracial marriages, etc) more like which of the following in a sandwich bar setting:
1) Refusing to sell a ham and cheese sandwich to the local rabbi?
2) Refusing to stock kosher meats despite the local rabbi’s request?
Quote
December 17, 2009, 6:14 pmbluprntguy says:
Obviously it’s number 1. The services in both cases are being refused to the customer based ONLY on their religion (or sexual orientation).
I know where you are going with this. Can the photographer photograph “weddings” but not “civil unions” or can they photograph “first communions” but not “bar mitzvahs”... It’s still refusal of services based simply on religion or sexual orientation and any claim otherwise is simply a red herring.
Quote
December 17, 2009, 7:10 pmDavid Schwartz says:
Even so, so what? Isn’t the whole point of freedom of speech that you can say horrible, awful, hateful things if you want? You just can’t compel anybody else to listen to you. Anyone who doesn’t want to hear what you have to say is free to refuse to interact with you, and you have that same freedom to refuse to interact with those who will say things you don’t want to hear.
Quote
December 17, 2009, 7:35 pmbluprntguy says:
As I noted before, the photographer is still free to participate in all existing ‘first amendment’ rights including publishing “straight only” wedding photographs, writing a letter to the paper, publishing a book against gays, or any other discriminatory “expression” that they may feel compelled to participate in. This law in no way even comes close to infringing on those rights.
What the photographer can’t do is offer services to the general public in exchange for money and then deny those services based on a protected classification.
If you accept that this photographer can refuse services to ‘those gays’, then you have to accept that “Target” can tell midgets they aren’t welcome, lunch counters can tell black people that they won’t be served, and muslims can be kicked out of movie theaters...
Quote
December 17, 2009, 7:53 pmChris Travers says:
bluprntguy:
Agreed with that statement but not sure it applies.
And your use of “clearly” regarding my question is like banging on the table instead of making an argument.
So if a local rabbi asks me to make a roast beef sandwich without cheese and I point ot a sign saying “all sandwiches include both meet and dairy[1]” should the rabbi be able to sue me for discrimination?
Do I have a right to decide WHAT I am willing to put on the sandwich I am willing to sell? If so, do I have a right to decide WHAT I am willing to photograph for money?
[1] Direct violation of kosher food rules under any interpretation.
Quote
December 17, 2009, 8:06 pmDavid Nieporent says:
When the government CHOOSES to pass LAWS, those laws MUST comport with the FIRST amendment. Otherwise, THOSE laws are INVALID. (Wow. I do think it makes a sentence more convincing if you randomly capitalize words in the middle of it.)
Quote
December 17, 2009, 8:31 pmDavid Nieporent says:
But it does infringe on the right not to be compelled to speak.
Simply repeating yourself does not make your point any more convincing. Especially when your point keeps missing the point, which is that the photographer is not denying services based on a protected classification, but based on a message.
While I do accept that, it’s just not true that one necessarily follows from the other. You still keep ignoring the first amendment issue.
Quote
December 17, 2009, 8:43 pmbluprntguy says:
For the record, I said “obviously” not “clearly.”
I suspect the court would find it’s discrimination only if you told the rabbi that all sandwiches come with meat and dairy, but told the priest behind him that you could hold the cheese.
In the case of your sandwich analogy, it’s difficult, if not impossible, to prove that the fact that you don’t offer kosher meats is intended to discriminate against jews. In the case before the court, it was clear that the photography company intended simply to discriminate. The business flat out told the couple that they were not going to photograph the event due to the fact that they didn’t believe homosexuality.
If the rabbi walked into the sandwich shop, and the shop owner said “I don’t serve kosher meats, because I don’t like jews” you might have a case for comparison.
Quote
December 17, 2009, 9:07 pmDavid Schwartz says:
There’s no need to defend the right to love one’s mother or praise the wisdom of our nation’s leaders. Those rights are not in danger. But the right to engage in evil speech acts that don’t hurt other people in any way *does* need to be defended.
The real problem is the reverse of the one that seems to concern you. In the zeal to stop the “obviously bad” acts you mention, we wind up forcing a wedding photographer to photograph civil commitment ceremonies.
We have sacrificed the very real freedoms of speech and association for a nonsensical “right to interact with others private individuals who have no desire to interact with you”.
Quote
December 17, 2009, 9:37 pmChris Travers says:
bluprntguy:
Sure, but if the same rule applies to both, I am asking the rabbi to choose between religion and service, and I am not asking the priest to do the same.
I would have thought a sign fairly obviously saying “I will break kosher rules on every order” would be fairly strong evidence of such a sentiment....
Quote
December 17, 2009, 9:52 pmbluprntguy says:
No one is forcing Elane Photgraphy to provide services. The company has chosen to enter the public market and exchange money for services. The government set up that market for the good of all citizens, and they have a desire, need, and compelling interest to make sure that it operates equally for all citizens.
Elane Photgraphy remains completely free to go out of business if their religious beliefs prevents them from taking a few snapshots of two happy people. Then they can go stand on a corner and shout “gays are evil” until their throat is hoarse. The constitution requires the freedom of religion and free speech, but it never requires that you get paid for it.
Quote
December 17, 2009, 9:53 pmChris Travers says:
bluprntguy:
I am sorry about getting the quote wrong. However, I suppose this strengthens the reference I was making.
Quote
December 17, 2009, 10:00 pmChris Travers says:
bluprntguy:
Which would be worse, her providing mediocre and barely acceptable services for gay couples? Or simply suggesting they look elsewhere?
I am asking here about real impact. If it was your wedding, would you prefer a photographer to say “sorry, not interested?” Or to show up and do a barely adequate job?
Quote
December 17, 2009, 10:12 pmbluprntguy says:
You said your sign said “all sandwiches include both meat and dairy” not “I will break kosher rules on every order.” The intent is different. in the former, a customer would have to prove that by refusing to not serve meat and cheese, you are attempting to discriminate against jews, but the intent of the latter is quite clear.
That discriminatory intent was proven in the court case in question. The initial email from the photographer indicated that they photographed just about anything for money. When they were asked to photograph a same sex wedding, they stated outright that they simply don’t photograph same sex weddings, and same sex weddings only.
I wonder if this would be the same conversation if the company had stated outright that they wouldn’t photograph a mixed race wedding, or a wedding of two asians?
Quote
December 17, 2009, 10:13 pmbluprntguy says:
This is a pointless argument as the company in question didn’t do either. They simply refused to provide a service based on the fact that the customer was a lesbian.
Quote
December 17, 2009, 10:24 pmChris Travers says:
that is not what the ruling says. The plaintiff did NOT refuse to offer the service based on who the customer was but on what the customer wanted her to photograph.
Quote
December 17, 2009, 11:12 pmChris Travers says:
bluprntguy:
Fine, if you don’t think the sandwich case was clear enough...
Suppose I open a restaurant with the following foods on the menu:
“Kid goat cooked in goat’s milk.”
“Medley of seafood with neither fish nor scales.”
“Rump roast, from the half of the cow without cloven hoofs”
“Pork chops, because pigs don’t chew cud.”
“Bacon Cheese burgers because all rules should be broken soemtimes”
This is a reference that every Jew know knows anything about the Torah will note that every item on the dish is a reference to breaking some Levitican dietary restriction and therefore the menu is obviously and clearly hostile towards Jews.
Basis for a discrimination suit? A public accommodations harrassment suit?
Or just simply legal and constitutionally protected, if distasteful?
Quote
December 17, 2009, 11:19 pmRich Rostrom says:
The “protected class” argument fails, because the issue is not merely the memberships of the would-be client in the class. If a mechanic refused to service a homosexual’s car, that would be invidious discrimination, because owning a car is not a homosexual activity. Nor a [race] activity, nor a [gender] activity, nor a [religion] activity. Neither is riding in a train, or staying in a hotel, or eating in a restaurant, or using a water fountain.
Furthermore, race and gender are intrinsic categories; one cannot choose to be or not be of a race or gender (with a few trivial exceptions). Religion is optional; but for very strong historic reasons, we treat it otherwise.
Sexual preference... many claim it is intrinsic, and for some it probably is, but there are also many cases of individuals whose preference was chosen, or imposed by circumstances. For example, there were (and still are) extreme feminists who argue that all women should be lesbians; women who were violently abused by men and prefer women; and men raised in cultures where pederasty is commonplace (many Moslem societies). Sexual behavior is chosen: one can always remain celibate.
A “same-sex wedding” is a form of homosexual behavior. It is an expression of the sexual preference of the participants. To compel an unwilling third party to participate is to compel that party to participate, at some level, in homosexual behavior. And that is wrong.
It would be equally wrong to compel a militant lesbian feminist to provide services to a heterosexual wedding, or to compel an atheist to provide services to a religious function.
I will add this. If an institution (such as a government) recognizes “same-sex marriage”, individuals acting for that institution must follow the institution’s rules. The Catholic clerk cannot refuse to file a same-sex marriage license.
But private citizens should be free to do (and not do) what they please.
Quote
December 18, 2009, 12:40 amDavid Schwartz says:
Who gets to decide what a “homosexual activity” is and on what basis do they do so? What if the car had “GAY PRIDE” spray painted on it and was used only in gay pride parades. Is owning that car a homosexual activity? What if the homosexual car owner is regularly seen around town parked in that car kissing members of the same sex?
I don’t think it makes any sense to even try to draw this kind of distinction.
Quote
December 18, 2009, 1:00 amPaul Davis says:
The customer wanted her to photograph a ceremony that was exactly the same as hundreds of other ceremonies that they had photographed, except for the fact that it was two lesbians. You aren’t even splitting hairs, your splitting electrons.
Oh yeah, then there’s the bit where they actually said in court that they refused based on their disaproval of homosexuality...
Quote
December 18, 2009, 2:35 amPaul Davis says:
Yeah, and a black wedding is an expression of blackness. I believe blackness is inferior to whiteness. I should not have to provide services for a black wedding, because that would be against my religious beliefs, not because I’m racist, but because I don’t believe in blackness.
You might want to at least try to cloak your homophobia. It’s digusting and offensive.
Quote
December 18, 2009, 2:44 amDavid Nieporent says:
Setting aside the thought-police aspect of what you’re suggesting, how can it be “discriminating against” someone to treat him exactly the same as everyone else? And if it is, are you suggesting that (a) the government can compel him not to say “I will break kosher rules on every order”; or (b) the government can compel him to serve kosher food so he’s not “discriminating”?
(Note that (a) the government is not, constitutionally, allowed to define kosher food, and thus could not enforce such a rule, and (b) no actually-observant Jew would eat at such an establishment anyway; it’s not sufficient that the place offer “kosher food” in order to be Halachically compliant.
For the seventy-third time someone has tried to use this exact same “gotcha” in this discussion, the answer is still yes.
Quote
December 18, 2009, 6:20 amDavid Nieporent says:
The government “set up the market”? I think you’re confused on economics as well as law. This is a commercial transaction between two private individuals.
Yes; I hear that Dred Scott remained completely free to be whipped if he didn’t feel like working.
This is both sophistry and wrong. The government cannot comport with the first amendment by requiring that speech be unpaid. Imagine that the American Nazi Party wants to hold a big rally/fundraiser. Can the government say, “You may give a speech, but you may not be paid for doing so, and you may not ask for funds?”
Can the government tell the Ochs-Sulzbergers, “You may print whatever you want in the pages of the New York Times, but you may not charge for it? If you charge for it, we will require you to print X, Y, and Z?”
Quote
December 18, 2009, 6:30 amjrose says:
The ruling said (Page 8), “Plaintiff’s policy creates two classes of would-be customers distinguished solely because of their sexual orientation.”
Quote
December 18, 2009, 7:52 amjrose says:
Seems like those are separate questions, rather than either/or (it could be discriminatory and constitutionally protected, or not discriminatory and not constitutionally protected). Discrimination requires proof of intent. The references to Kosher foods might suffice.
Quote
December 18, 2009, 8:03 amPaul Davis says:
Just to be clear, you are suggesting that this photographer can refuse to service Negroes, that private schools can bar mexicans from attending, that department stores can have one section for whites and another section for all those other races, that a travel agent can refuse to provide services for Muslims, that the opera can force all the Catholics to sit in the balcony, that Asians can be barred from using restrooms in restaurants...
In addition to the gross amount of case law that states this is not the case, every normal human being understands that this is a compelling interest for our government and that these laws are already narrowly tailored to meet this affect.
Quote
December 18, 2009, 10:29 amRandy says:
Rich: “Sexual preference... many claim it is intrinsic, and for some it probably is, but there are also many cases of individuals whose preference was chosen, or imposed by circumstances. For example, there were (and still are) extreme feminists who argue that all women should be lesbians; women who were violently abused by men and prefer women; and men raised in cultures where pederasty is commonplace (many Moslem societies). Sexual behavior is chosen: one can always remain celibate.”
Not true. All studies done on sexual orientation have concluded that it is innate and cannot be changed. Whom you find attractive simply doesn’t change.
There are of course a great number of bisexual people, and one can suppress one’s desires, but that doesn’t change them. A bisexual can be dating and even marry a person of the opposite sex and yet still have desires for the same sex. It actually happens quite frequently, and it’s difficult to suppress those urges. See Ted Haggard, Larry Craig and so on. And the reality is that they shouldn’t suppress those desires because it only leads to behavior that hurts everyone around them. They shouldn’t pretend to be exclusively straight in the first place.
One can argue all one likes about who should or shouldn’t be gay, and extremely militant heterosexuals who argue that all people should be straight are just as stupid as the extremely militant lesbians you reference.
And yes sexual behavior is chosen, at least for some. But so what? Are you suggesting that gays should remain celibate? For what purpose?
Sorry, Rich, but we’ve heard that all before. The fact is that there are many gay people, and today, gays are no longer afraid to be openly gay. And gay people are going to have just as much sex as you do, and that is their right. If it creeps you out, too bad. You are just going to have to live with that fact.
Quote
December 18, 2009, 10:47 amjrose says:
I’m fairly certain Eugene argues that precedent supports an as-applied challenge for the photographer because artistic expression is infringed. But such challenges would not apply to your other examples. He and other libertarians might argue they ought to apply — in which case anti-discrimination statutes would be facially invalid — but they don’t argue case law is on their side.
Quote
December 18, 2009, 11:07 amMelina says:
Look. The point of this was NOT to force the photographer to take photos of the couple’s ceremony. It was that Elane Photography, which is an incorporated business, had a COMPANY POLICY of discrimination against sexual orientation. They admitted it under oath multiple times. Read the commission finding from Oct 2008 as I did and you will see that. You may also find it interesting that the commission offers free mediation and Elane Photography refused. They were the ones who were publicity seeking opportunists. The gay couple obviously just wanted to right a wrong since they weren’t seeking damages. By the way, the commission only awarded attorney’s fees NOT damages as some people are saying.
The judge’s opinion is a matter of public record as well. Read it. You’ll see that they Alliance Defense Fund attorneys for Elane Photography used every flimsy arguement in the book. They even manipulated and twisted past rulings to fit their arguements as if the judge would not notice.
Quote
December 18, 2009, 11:21 amPaul Davis says:
As has been noted before in this discussion, an artistic exemption or religious exemption (i.e. first amendment) would apply to all those other cases as well. Furthermore, precedent doesn’t support your suggestion, as the photographer claimed religious exemption, not some fantasy artistic merit exemption. Where is the case law for a photographer to be allowed to discriminate in picking clients based on their race and no other factor, and then emailing them and telling them that is why they made the decision? Oh yeah, it doesn’t exist.
Quote
December 18, 2009, 11:31 amjrose says:
You lost me on how artistic expression or religious exemption applies to the other cases? Also, the religious exemption derives from statute, not the the Constitution.
The photographer claimed both a religious and artistic exemption. The supporting precedent for the latter was discussed in the ruling (the judge distinguished the precedent from the case at hand). Eugene disagreed with that distinction, claiming it would ensare borad swaths of what most everyone considers artisitc expression.
Quote
December 18, 2009, 11:39 amChris Travers says:
Melina:
On the other hand, if Elaine Photography made a company policy of only shooting weddings where a valid marriage license was provided to them on arrival, and properly communicated this to their customers, would that be OK?
It would be really disingenuous for the court to say “the photographer has to treat this as a wedding but the state does not.”
Quote
December 18, 2009, 11:41 ambluprntguy says:
No it wouldn’t disingenuous. There are valid reasons why the state would want to treat ‘marriages’ differently from ‘commitment ceremonies’ (all of which I disagree with as complete BS for the record): having to provide additional tax incentives, rearing of children, health, etc. These are all valid concerns of the state, but of little interest to a photographer.
Quote
December 18, 2009, 12:01 pmPaul Davis says:
If Elane Photography can claim that religion exempts them from having to provide service to gays, then any other business is free to say the same about African Americans, Jews, Catholics, Wicans, Asians, etc. You do understand that there are still religions in America that profess that negroes are the devil right?
Quote
December 18, 2009, 12:12 pmjrose says:
While it is possible under the New Mexico statutory definition of “free exercise of religion” for such claims to be valid, I strongly suspect virtually all of them would not be.
Also, it is possible that the religious exemption would be rejected because the state successfully can claim a compelling interest. Eugene argues that by not permitting same-sex marriage, New Mexico has a much tougher time making the same claim in this case.
Quote
December 18, 2009, 12:43 pmDavid Nieporent says:
Just to be clear, I am not saying anything of the kind, although I’m pretty sure that you’re wrong with respect to private schools.
Like the other commenters here who substitute outrage for reading, you ignore the first amendment issue in play here that is not at play in your other examples.
Quote
December 18, 2009, 2:03 pmPaul Davis says:
I do not ignore the first amendment issue at play. My examples were all relevant situations where a corporation can claim that they should be exempt from anti-discrimination laws due to freedom of religion (the first amendment.)
You are ignoring the fact that there is a plethora of findings from the supreme court that says that anti-discrimination laws are perfectly constitutional even if they burden first amendment rights as long as they are narrowly tailored. This law meets that test.
You seem to be actively searching for a reason for someone to be able to discriminate against one group of people, but to be barred from doing the same to another group of people. Please check your 14th amendment rights at the door evidently...
Quote
December 18, 2009, 2:11 pmLymis says:
I don’t think it really applies to the specifics of this case, but here’s a similar hypothetical:
The photographer is personally a member of a strict Christian denomination, and has put in a great deal of time and effort to create a business that caters largely to similarly minded people. Their business routinely does weddings, church membership photos, religious school photos, and such.
There is ample evidence that clients such as this pay close attention to how “Christian” the people they contract with are (or appear to be.) Recently, a similar business had to be closed after the owner lost most of his client base following a scandal that was seen as indication he was immoral.
The photographer is approached by a couple that state clearly that they are Satanists, and that their wedding is going to be staged to be themed like a Satanic ritual, including signs, symbolism, and behavior that the photographer finds personally offensive. It is extremely likely that the photographer’s participation will become common knowledge in the small town and may well dramatically impact the rest of their business.
I know this is over the top, but I don’t see how just having a business license should in any sensibly written law force this photographer to take those pictures.
This is completely as opposed to someone refusing to take standard portraits of someone simply because they know that they are Satanists.
I’m gay. I’m 100% in favor of same-sex marriage. I am married to my husband.
And I am (painfully) aware that there are lots of people who see a same-sex union ceremony as something that is most decidedly NOT “just like every wedding they go to.” For a lot of (I think misguided) people, two women standing in front of an altar kissing is far more like a Satanic service than a Baptist wedding.
The printer should not be allowed to refuse to print the photos (barring issues like nudity that would apply to all photos).
I just don’t see why the law can’t be written to make this kind of distinction in this sort of case.
Quote
December 18, 2009, 4:54 pmjrose says:
Again, the religious exemption is statutory.
In the case of speech (which is the first amendment issue in play here), even when the state interest is compelling, there is a balancing that still invalidates applications of anti-discrimination statutes that seriously burden expression.
Quote
December 18, 2009, 4:58 pmShelbyC says:
Talk about your dumb arguments.
Quote
December 18, 2009, 5:39 pmPaul Davis says:
Really? Please give specifics. The supreme court has found on many occasions the exact opposite of what you describe. I think this is pure BS.
Quote
December 18, 2009, 5:57 pmDavid Nieporent says:
As I said, outrage is not a substitute for reading. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. And most recently, Boy Scouts of America v. Dale.
Quote
December 18, 2009, 6:23 pmjrose says:
The seminal case is Roberts which found an anti-discrimination statute to advance a compelling state interest. But after making that finding, the Court went on to nonetheless analyze whether the Jaycees’ expressive association was seriously burdened.
In Dale, the Court latched onto this framework to invalidate New Jersey’s anti-discrimination statute as applied to the Boy Scouts refusal to admit Dale.
Quote
December 18, 2009, 6:45 pmRandy says:
Lymis: Perhaps a real world scenario would be better. Turns out that Bob Jones University (I think it’s that one, or one very similar) is extremely anti-gay but also has a renowned collection of european art, mostly religiously themed. It is housed in a museum on campus, and it’s a 501(c)(3) tax exempt institution. Bob Jones, being a private institution, forbids homosexuals on its premises, which is its right.
But of course, the museum, as recognized by the IRS, must be open to all US citizens. And so friends of mine have gone to the campus wearing t-shirts that say “Gay and Proud” or other such things, and then proceed to visit the museum.
They get a chilly welcome, to say the least, but I don’t the universities bona fides in the Christian community are at all compromised just because they have to let in a few homos.
Quote
December 18, 2009, 6:46 pmjcm says:
http://www.telegraph.co.uk/comment/columnists/charlesmoore/6840557/Our-human-rights-culture-has-now-become-a-tyranny.html
I know i off topic but i guess you would like to comment on this UK decision
Quote
December 18, 2009, 8:12 pmPaul Davis says:
Wow. Look. These are both service organizations that you cited, kind of like religious organizations. They actually aren’t for profit businesses. You think there might be a fraking difference. Since we are lumping elane photography LLC with the boy scouts, maybe Elane deserve a tax exempt status too while we are at it.
Quote
December 19, 2009, 1:33 amjrose says:
As to the balancing standard between expressive rights and the compelling interest of anti-discrimination statutes, I don’t see any distinction between business and not-for-profits (it is silly to argue this conclusion has any relevance on tax exempt status).
The judge in this case ruled against the photographer’s expressive rights because (in his view) the anti-discrimination statute did not seriously burden them. It was not sufficient for him to find the anti-discrimination statute was the least restrictive means to advance a compelling interest (which was sufficient to counter the statutory religious freedom claim).
Quote
December 19, 2009, 8:57 amPaul Davis says:
Quote
December 19, 2009, 11:28 amjrose says:
It’s not silly to apply the Dale standard because what is at issue in this case, as it was in Dale, is expression. Moreover the judge applied the Dale standard in ruling against the photographer.
Quote
December 19, 2009, 11:45 amDavid Nieporent says:
Can you point to any language in Dale which suggests a difference between non-profit and for-profit businesses?
Do you think that the government could compel the New York Times to print gay commitment ceremony announcements in its wedding pages merely because the NYT is a for-profit business?
Quote
December 19, 2009, 11:58 amPaul Davis says:
I wasn’t suggesting that Dale can’t be applied to a for profit business. I noted that the issue in Dale was about membership standards, not services.
No one is asking Elane photography to publish anything, post anything on their website, issue a proclamation supporting gay rights, or take any other free speech actions. They are asking that Elane photography stop denying a service to certain customers based soley on their sexual orientation. They are asking that the business provide the same service to them that they would provide to every other customer that walked through the door.
Should an architect be allowed to deny services to a mixed race couple because the house he designs shouldn’t be used for misegenation? Designing a building is a form of expression. How about a lawyer? Creating a defense for someone is a form of expression, so he should be able to deny you services because you don’t have blue eyes and blond hair.
Quote
December 19, 2009, 12:37 pmDavid Nieporent says:
The issue was whether anti-discrimination law was a governmental interest compelling enough to override freedom of expression. The fact pattern, to be sure, had to do with membership, but what is the relevance of that? How is “membership” different than a “service” in this context?
Incorrect. They are asking Elane photography to create photographs that express a message about a gay “marriage.” (I put it in quotes because in NM it isn’t, legally, a marriage.) That is a “free speech action.”
Elane is not refusing a service to gay people. It is refusing to create a specific message about gay ‘marriages.’ This is not a situation where Elane told a gay person it would not sell him photo equipment, or would not take pictures of his retirement party — in other words, Elane is not refusing to do business with a gay person. It is refusing to produce a specific product, which it would not produce for anybody, gay or straight.
Well, yes, they should. But neither of those is remotely analogous, and so don’t present the same issues as the one we’re discussing here. Once again: we’re not talking about denying services. We’re talking about not creating a certain message. Building a house certainly has some expressive elements, but the identity of the owner of the house is separate from those expressive elements. That is, the gothic ceiling looks the same regardless of whether it’s an interracial couple or intraracial couple living in the house. But the identity of the participants is directly related to the expressive elements of the wedding photographs.
Quote
December 19, 2009, 1:11 pmjrose says:
Visual images are afforded the same Free Speech protections as spoken or written words. Slightly altering Eugene’s hypothetical: what if Elaine’s business built websites. Can the government compel her to build the website for a gay-owned firm? Does that impose a serious burden on her expressive rights (Dale), or is it merely business conduct?
Ditto for your hypotheticals on the architect and the lawyer, and David’s on the wedding anouncements. I’ll add two more: passport photography and hosting classified ads.
So, the heart of the issue is when does business conduct spill over to expression such that an anti-discrimination statute seriously burdens that expression. The fact the anti-discrimination statute advances a compelling state interest isn’t dispositive.
Quote
December 19, 2009, 1:13 pmjrose says:
The specific product, in the overwhleming number of instances, would be asked for only by gay people. Elaine’s denied a service based on the sexual orientation of the prospective customers. Whether that denial is Constitutionally protected because she otherwise would be forced to create a message she abhors is a separate question.
Quote
December 19, 2009, 1:45 pmDavid Nieporent says:
I agree with that. But tampons would only be used by women, and nobody thinks a store declining to carry tampons is discriminating against women, do they? Or a store carrying only women’s clothing discriminating against men, or (as previously discussed) a restaurant refusing to sell kosher food discriminating against Jews.
Quote
December 19, 2009, 2:36 pmPaul Davis says:
Actually, we are. Since Elane photography’s contracts noted that they reserved all the rights to the images, the only thing that is left for them to sell are the services of the company. So, we are specifically discussing the fact that elane photography is denying a professional service, as this is a finding of fact in the case that wasn’t disputed by any party.
Quote
December 19, 2009, 2:44 pmjrose says:
It depends on intent. I would be shocked if Eliane’s intent was anything other than disapproval of gay relationships.
Quote
December 19, 2009, 2:54 pmDavid Nieporent says:
Does it actually depend on intent? If I say, “I hate Jews,” does that mean I can be required to carry kosher food, but if I say, “I don’t feel like it,” then I can’t?
A paragraph is a series of connected thoughts about a single topic; when I write a paragraph, it is meant to be read as a whole. Please don’t pull sentences out of context, as it changes their meaning. We’re not talking about denying a service based on the customer’s identity, but based on the message expressed by the service itself. Elane doesn’t say, “We won’t do business with gay people.” It says only that it won’t endorse gay “marriage.” If a gay person wanted a service with a diffrent message, it would be happy to provide it.
Quote
December 19, 2009, 3:05 pmBluprntguy says:
I really wish someone would read the opinion.
You can’t argue first amendment rights in this case. The photographer denied services based on suspect classification which is prohibited by law. The ‘freedom of expression” issue isn’t even material because it’s not an issue at hand in this case.
The comments seem to indicate that Elane photography shouldn’t be forced to take photos at an event because it would lead to ‘forcing’ Elane photography to express a positive view on same sex marriage. However that isn’t necessarily the case. Elane photography still retains all their freedom of expression — even with the anti-discrimination law.
Had Elane photography not denied to provide their services, they could have taken the photos in such a way to express their disapproval of homosexuals. That might have resulted in a different lawsuit. They chose to simply discriminate by denying services.
Quote
December 19, 2009, 3:19 pmRich Rostrom says:
DN: They are asking Elane photography to create photographs that express a message about a gay “marriage.”
Precisely. But the issue, to me, is not that photography is an act of “free expression” by the photographer, but that the ceremony is an act of expression by the participants.
And no one has any right to compel anyone to participate in an expressive act.
This law suit was not about “tolerance”. Elane Photography did not want to interfere with the ceremony, or make public statements denouncing it. They simply wanted to have nothing to do with it. The plaintiffs refused to tolerate this passive disapproval. In their minds, no one should be allowed to disapprove. That is intolerance.
BTW, some of the counterexamples offered here are nonsensical. Marriage is not expressive of race, any more than eating or breathing. A marriage ceremony might include race-based content, but that would be an extraneous imposition. Refusal to photograph an “Aryan Nation” wedding would be on the basis of racist content, not the wedding — and would extend to any other AN function with racist content.
Marriage is expressive of sexuality. No person should be required to participate in an expression of sexuality of which he does not approve. A same-sex ceremony is expressive of the homosexuality of the celebrants, just as a mixed-sex ceremony is expressive of the heterosexuality of the celebrants.
Owning a car is not expressive. Having a message painted on the car is expressive, but it would be just as expressive painted on any other object. If A imposes an expression on a transaction, B should be able to withdraw from the transaction. There is, of course, a difference between a “W ’04″ bumper sticker, and a vehicle tricked-out as an Einsatzgruppen gas van, complete with swastikas.
Rights, in general, are negative: not to be imprisoned or enslaved, or stopped from speaking, publishing, or worshipping, or prevented from owning weapons, not to have property seized.
Positive rights are tricky, because they imply the right to compel action by others. Compelling private parties to provide services to other private parties they don’t want to deal with is a serious intrusion upon personal liberty — one that has disturbed a lot of respectable libertarian thinkers.
Where the service is something offered to the general public, and has no connection to the excluded category, such compulsion is an acceptable remedy for invidious discrimination. A bus company cannot refuse to carry Asian passengers; a landlord cannot refuse to rent to Mormon tenants.
But this positive right should not extend to expressive action of the sort protected by civil liberties. A has the right to speak, and B, nor even a majority of Bs, may silence A. But B is not required to sell A a bull horn, nor to host A’s web site, nor to broadcast A’s commercials. Nor to photograph A’s same-sex quasi-wedding ceremony.
Quote
December 19, 2009, 3:47 pmjrose says:
If you don’t carry kosher food because you hate Jews, you are in violation of the New Mexico statute. If you hate Jews, and just happen to, for other reasons, not carry kosher foods, you’re OK.
Elaine’s won’t photogrpah same-sex commitment ceremonies because she disapproves of gay relationships.
Quote
December 19, 2009, 3:51 pmjrose says:
The opinion had a section devoted to Freedeom of Expression.
Quote
December 19, 2009, 3:59 pmDavid Nieporent says:
I’m not sure whether you’re being disingenuous or dishonest, but in either case, your claim is false — something which you’d know if you “read the opinion.” The photographer explicitly raised freedom of expression; therefore, it is an issue in this case. The court addresses it in section 3 of its discussion, starting on page 8 of the opinion.
(Moreover, I would be free to opine on whether a law or particular application thereof violates the constitution even if a party fails to raise that issue.)
Incorrect. Compelled speech is also a first amendment problem.
So you’re saying that the government can say, “You have three choices: you can express a particular view you disagree with, you can refuse to agree to express a particular view and be fined, or you can agree to express that view and then fail to do so, and be liable.” Uh, no. Creative, but no.
Quote
December 19, 2009, 4:13 pmBluprntguy says:
You can’t claim “compelled speech” if the very services that you are hiring yourself out to do, require that you to speak. The content of that speech can be debated, but it’s nonsensical to argue that Elane photography can hire themselves out as photographers, and then claim that they can’t be forced to produce photographs. That would be like a writer taking a job and then refusing to put anything on the paper. The very nature of their jobs require some sort of speech.
Quote
December 19, 2009, 4:38 pmjrose says:
Elaine’s isn’t arguing that they have a right to never produce photos, only they have a right to not produce photos with certain messages in them. And yes, your writer cannot be compelled to put words on paper that have messages in them he disagrees with.
Quote
December 19, 2009, 4:47 pmBluprntguy says:
David Nieporent: So you’re saying that the government can say, “You have three choices: you can express a particular view you disagree with, you can refuse to agree to express a particular view and be fined, or you can agree to express that view and then fail to do so, and be liable.” Uh, no. Creative, but no.
No, I’m saying that everyone is assuming that the law compels a photographer to take photos of a ceremony that they don’t agree with, and produce images that they don’t agree with. That is not entirely clear, as the events of the case simply don’t address those issues.
It is unclear if the law would have compelled Elane photography to participate in a ceremony that went against their beliefs or what impact that it would have had to their speech. Since the company simply refused service based on sexual orientation, we can’t understand the impact that the law in question may have had to first amendment rights.
Quote
December 19, 2009, 4:57 pmDavid Nieporent says:
But the writer (or photographer, in this case) DIDN’T TAKE THE JOB HERE. That’s the whole point! The government is trying to compel them to do so.
Quote
December 19, 2009, 4:57 pmBluprntguy says:
I agree, David was the one suggesting that the photographer couldn’t be compelled to speak at all because of the first amendment. We can debate what types of photographs could or could not be expected at what types of events, but you have to assume that a person that agrees to be a photographer will produce some sort of photograph.
Quote
December 19, 2009, 5:01 pmBluprntguy says:
No, the government is saying you can’t be a company that provides photographic services (or any other type of service) to the general public and then deny those services to someone based on race, religion, or sexual orientation.
Quote
December 19, 2009, 5:05 pmDavid Nieporent says:
We’re going in circles. The company did not deny services to someone based on sexual orientation; the company did not say, “We do not serve gay people.” The company denied a particular service (to everyone): photographing gay commitment ceremonies.
The government is trying to compel Elane to express a positive message about such ceremonies. That’s a violation of the first amendment. The fact that the company has a choice of shutting down instead does not save the government’s position.
Quote
December 19, 2009, 5:19 pmBluprntguy says:
Seriously? There is no other reason to deny photographing a same sex commitment ceremony except to discriminate based on sexual orientation. The only difference between the two ceremonies is the sexual orientation of the participants. Sorry, no judge is going to buy that bullshit, so you really should stop peddling it.
As I stated before, the law does not compel Elane photography to express any particular message. It requires that if you are a public company and provide a service to white people, that similar services also be provided to asian people and gay people.
Quote
December 19, 2009, 5:57 pmJamie Ward says:
Mr Nieporent, I’d just like to say your claim about denying services for “same sex weddings” not being a discrimination based on sexual orientation is the EXACT same thing as saying I take headshots of white people, but I’m not discriminating against people because of their race — I just don’t offer headshots for people with black skin.
It’s not only dishonest, but it is disgusting.
Quote
December 19, 2009, 6:08 pmDavid Nieporent says:
You’re begging the question.
The only difference? How about that one is a legal marriage in NM and one isn’t? Isn’t that a difference?
And as I stated before, that’s bullshit. The “service” you’re talking about is expressing a particular message. Calling it a “service” does not mean it’s not expression. And, according to you and this judge, the law does compel them to express it.
Quote
December 19, 2009, 6:27 pmPaul Davis says:
We are going in circles because you try every argument you can think of, then go back to one that doesn’t even make sense. A company that says they photograph “weddings and other life events”, but denies photographing a same sex ceremony is quite clearly discriminating against someone based on their sexual orientation.
Quote
December 19, 2009, 6:27 pmPaul Davis says:
Sorry, they are materially the same in regards to the services being rendered.
Quote
December 19, 2009, 6:37 pmDavid Nieporent says:
Are you saying that they would photograph a straight person’s same-sex commitment ceremony? Are you saying that they would refuse to photograph a gay person’s graduation, or 50th birthday party, or bar mitzvah? Because none of those claims have any factual support. This is not refusing to let blacks in the swimming pool; Elane will provide services to gay people. They just won’t express the message that gay commitment ceremonies are positive.
Quote
December 19, 2009, 6:44 pmPaul Davis says:
The Owner said she did not “approve of homosexuality” and the statement of facts indicated that there was an unwritten rule that the company would not photograph events that went against the religious beliefs of the Owner’s. The facts prove that the company was refusing the event based on the sexual orientation of the participants.
Quote
December 19, 2009, 6:56 pmPaul Davis says:
Are you saying that Elane Photography would photograph the 8th birthday of the daughter of two gay men that are legally married in California? If so, I call bullshit.
Quote
December 19, 2009, 6:58 pmjrose says:
We’ve already established there is virtually no such thing. So your argument that she has nothing against gays and “only” has problems with same-sex loving relationships, and thus we have a case of unintentional disparate impact against gays is 100% hogwash.
Your line of reasoning would lead us to conclude the Texas sodomy statute only had a disparate impact against gays. Yet, O’Connor’s concurrence got the thumbs up from the majority as being tenable (they just wanted to take a bigger step and protect all sodomy). In effect, you are at odds with SCOTUS precedent.
Quote
December 19, 2009, 7:47 pmjrose says:
You’ve already incorrectly claimed the opinion didn’t touch upon Freedom of Expression. And now you claim the case doesn’t deal with the exact set of facts it dealt with. Maybe you are reading some other case?
Quote
December 19, 2009, 7:51 pmLymis says:
I think that there is an extremely fine point here that actually does need to be parsed, and I think it is at the heart of what David Nieporent is saying.
It would be denying services to clients on the basis of the clients’ sexual orientation if they refused to accept contracts from gay people — for example, if a gay couple tried to hire them to photograph their daughter’s opposite-sex wedding.
It is not denying services to clients on the basis of the clients’ sexual orientation if they refuse to photograph specific events regardless of the clients’ orientation — again, for example, if a heterosexual couple tried to hire them to photograph their daughter’s same-sex wedding.
Of course, the same logic would apply if white people wanted to hire her to photograph their friend’s wedding of two black people, or their child’s mixed-race wedding.
The question of whether refusing to photograph an event because it celebrates gay relationships violates the non-discrimination laws in some other way is an independent question. I don’t think there’s a serious question as to their opinion of gay people — but that opinion is certainly protected.
I suspect that if they refused to photograph black people, regardless of who hired them, it would be interpreted as a discrimination case. I may be wrong.
Quote
December 19, 2009, 8:00 pmPaul Davis says:
You are saying it would be OK for a photographer to refuse to photograph African American weddings, as long as he would take money from an African American to photograph a white man’s wedding.
That doesn’t sound discriminatory at all.
Quote
December 19, 2009, 8:47 pmbluprntguy says:
No, I’m saying you are making statements that this non-discrimination law forces a photographer to take photos against his/her will and violates free speech, when that is not clear from the case. The law only requires that businesses don’t discriminate against their customers.
Could the business have contracted with another company to take the photos? Could they have hired a free-lance photographer? Could they have simply suggested another photographer would be a better choice? Do they have to put their logo on the photo? Do they even need to be involved at all, or do they simply have to invoice for the service to meet the intent of the law?
We have no way of knowing these issues because Elane Photography chose to simply discriminate based on sexual orientation and refuse service upon initial contact.
Quote
December 19, 2009, 9:06 pmDavid Nieporent says:
“The law doesn’t require 4; it requires 2+2!”
If a restaurant doesn’t want to serve black people, can it send them to the restaurant next door to avoid anti-discrimination law? If a car dealership doesn’t want to hire black people as mechanics, can it refer them to another car dealership with job openings to avoid anti-discrimination law?
(I have no idea what the logo has to do with anything, nor do I understand what ‘invoicing’ has to do with anything.)
Quote
December 19, 2009, 10:04 pmDavid Nieporent says:
Well, I can’t help it if you want to make up facts in an attempt to strengthen your argument.
In any case, I believe I’ve gotten sidetracked from my main position, which was not whether they discriminate, but whether the first amendment protects their specific action in this case. The argument that their action is discriminatory does not resolve that latter issue, much as some people want a non-constitutional anti-private-discrimination policy to trump the constitutional free speech protection.
Quote
December 19, 2009, 10:08 pmjrose says:
The policy is only unconstitutional as applied, and I think this case is a close call. Would you agree the cleaning company can’t refuse to service a same-sex commitment ceremony, nor can a photographer refuse to take passport photos for a gay couple who wants to celebrate their ceremony with an overseas honeymoon?
Quote
December 19, 2009, 10:48 pmDavid Nieporent says:
I would agree that the first amendment provides no protection to the service providers (janitor/photographer) in those scenarios.
Quote
December 19, 2009, 11:12 pmJamie Ward says:
The points earlier that were dismissed are actually quite valid. Perhaps instead of trying to shame someone, David should consider the thoughts expressed.
You can’t simply stomp your feet and claim there is a first amendment conflict in a law where none is proven. The company in question denied service based on sexual orientation. The burden on the first amendment rights of the business remain hypothetical and unproven. A narrow application of the law is warranted. It still remains unclear if a wedding photograpy business is more like a bookstore or a newspaper publisher. I would say the former.
Quote
December 20, 2009, 3:31 amjrose says:
Firstly, the First Amendment rights aren’t hypothetical, they were explicitly litigated. The judge found they were not seriously burdened, but Dave and Eugene made good arguments to the contrary.
Secondly, are you saying a bookstore can be compelled by an anti-discrimination statute to stock books extolling the virtues of same-sex marriages?
Quote
December 20, 2009, 9:16 amDavid Nieporent says:
There is a first amendment conflict; the issue is whether anti-discrimination law provides a compelling reason to ignore the first amendment. The judge felt it did; I disagree. But whether or not the first amendment argument prevails is a separate question from whether there is one.
I don’t understand what distinction you’re drawing here. What if it is more like a bookstore? Are bookstores not protected by the first amendment in your view?
Quote
December 20, 2009, 11:45 amJamie Ward says:
The photography business is denying services and products to customers, much like a bookstore might refuse to sell a book to a lesbian. These are products and services that are generally available to others.
Should the grade school photographer be allowed to refuse to take photos of the black children at a school? There is a rational reason to prevent this, and the law is narrowly focused to achieve the goals.
Quote
December 20, 2009, 1:00 pmjrose says:
The photography business is not denying services to lesbians. It is denying taking pictures of lesbian couples in their commitment ceremonies. Yes that’s sexual orientation discrimination, but not of the same type as refusing to sell books to a lesbian. The proper analogy is a bookstore that refuses to sell books that celebrate lesbian weddings.
No, but that is again a flawed analogy — this time because there is no expressive ideas in taking a generic grade school picture. The proper analogy would be pictures of students celebrating Martin Luther King, Jr. day. And yes as I interpret case law, the photographer cannot be compelled to take those pictures.
Quote
December 20, 2009, 1:47 pmDavid Nieporent says:
Sigh. Once again, you pick an example that is utterly unanalogous because you keep ignoring the freedom of speech issue. The issue is not “denying services and products” to lesbians. The photography business is denying to lesbians one specific service: THE SERVICE OF EXPRESSING A PARTICULAR MESSAGE. Unless you find an example that contains that element, you are completely missing the entire point of this discussion. As jrose explained above, the analogous situation would be refusing to sell books which express positive views about gay marriage.
Suppose that a bookstore did not stock such books in its wedding section, and it refused to special order those books when gay people asked for them, even though it was willing to special order all other books for its customers. Could that bookstore be compelled, under threat of governmental sanction, to sell such books? I would hope that you would agree that the answer is no, notwithstanding the disparate impact this would have on gay couples.
Quote
December 20, 2009, 2:11 pmDavid Nieporent says:
Actually, whether there’s an expressive idea in taking a generic grade school picture or not is, I think, ultimately beside the point, because a grade school photographer has contracted to take pictures of all the students. Unlike Elane Photography, which declined to enter into such an agreement, the grade school photographer did in fact agree to do so. So, whether he’d be in violation of anti-discrimination law or not, he’d be in breach and could be compelled to pay damages.
Quote
December 20, 2009, 2:17 pmJamie Ward says:
The only distinction between the lesbian commitment ceremony and straight marriage is based on sexual orientation, in all other matters they are the same as weddings. As far as the law is concerned they are materially the same. The distinction that you seek to draw is baseless under practically any level of judicial review. As has already been noted, your argument is the same thing as the photographer saying he doesn’t take photos of people with black skin and then claiming it’s not a distinction based on race.
I think the grade school photographer may take issues with your assumption of his talents. In any case, if you argue that taking photos at a wedding is somehow forcing the photographer to speak against their will, the same applies to any photographer. The grade school photographer specifically is being forced to portray black children as equal to white children against their beliefs, in direct contradiction to his right to freely speak otherwise.
Quote
December 20, 2009, 2:18 pmPaul Davis says:
If a private school for African Americans contacts a photographer that takes school photos for other schools, can he email them back and say “I don’t take photos of black students”?
Quote
December 20, 2009, 2:54 pmDavid Nieporent says:
It’s not actually the same thing at all, but the problem is, this conversation has gotten sidetracked — for which I bear significant responsibility — into the question of whether the photographer was being discriminatory. That’s not the issue, so let’s stipulate that she was. So what? The issue here is whether the first amendment protects her actions. Saying, “she was discriminating” doesn’t even begin to resolve that question. There’s no non-discrimination exception written into the first amendment.
Quote
December 20, 2009, 2:57 pmjrose says:
Considering I said, “[y]es that’s sexual orientation discrimination,” I already concur the distinction is not relevant to the anti-discrimination statute. But, the distinction is relevant to the First Amendment defense.
I disagree. There is a clear expressive idea in the wedding photos. There is no expressive idea about the equality of balck and white kids in generic school photos.
Quote
December 20, 2009, 3:02 pmRussellD says:
Look! The bigots are out searching for any loophole they can find so that they can discriminate against other people. Let’s just invalidate all our anti-discrimination laws. Let lunch counters refuse service to blacks. Heck let’s make them ride in the back of the bus too! The bus company can’t be expected to publicly express that black people are human in contradiction to their right to free speech.
Bigots are depressing.
Quote
December 20, 2009, 3:03 pmjrose says:
Probably not because there is no expressive message in the photos. The same holds true for Elaine’s if she refused to take photos of gays.
Quote
December 20, 2009, 3:07 pmjrose says:
Are you calling Eugene a bigot?
Quote
December 20, 2009, 3:08 pmDavid Nieporent says:
Yes. How could one think otherwise? Three possibilities, I guess:
1) One thinks that a state anti-discrimination law supersedes the first amendment.
2) One thinks that taking photographs is not an expressive activity governed by the first amendment at all.
3) Even though photography is first amendment protected, one thinks that certain types of photographs have so little expressive content that they’re an exception to the general rule.
The second would certainly require the reworking of lots of contrary precedent. The first, well, requires overturning the Supremacy Clause and/or the incorporation doctrine. I guess the third is the least offensive argument of the three, but I’m not sure where one proposes to draw the line. (This isn’t, after all, an O’Brien-type balancing issue; it’s pure speech, rather than speech-conduct.)
Quote
December 20, 2009, 3:08 pmDavid Nieporent says:
Outrage is a substitute for legal analysis! All bad things must be illegal! If you support the rights of bigots, you are one!
Quote
December 20, 2009, 3:12 pmjrose says:
That contradicts your eralier statement that a passport photopgrapher has no First Amendment protection.
Quote
December 20, 2009, 3:25 pmJamie Ward says:
So now there is some “expressive” test for legal analysis? Arranging the friends and family at a wedding is somehow more expressive then arranging the local high school basketball team? I assume that you have a way to quantify exactly when photographic services become expressive?
Quote
December 20, 2009, 3:41 pmRusselD says:
Yes. He titled this post “Religious Accommodation and a Right Not to Participate in Same Sex Marriage.” instead of “Religious Accommodation and a Right to be Exempted to Anti-Discrimination Laws” This is not an issue related specifically about same sex marriage, despite his attempts to do so.
Quote
December 20, 2009, 3:45 pmjrose says:
The test comes from Dale (is expression seriously burdened). The evaluation in any particular case is properly subjective. In this case, the photograph expresses the message that gay weddings are to be celebrated. I don’t see an expressive message in a generic school photo.
Quote
December 20, 2009, 4:11 pmjrose says:
I doubt Eugene would have a problem with changing the title. So, you think anyone who supports a religious exemption to an anti-discrimination statute is a bigot? How about those who believe in a Free Speech exemption?
Quote
December 20, 2009, 4:16 pmJamie Ward says:
BSA v. Dale is very limited in application to other cases and does not include a “serious burden” test on free speech. You may be referencing the “expressive association” test, but this photography company would not meet the very first of the three parts of that standard.
Furthermore, BSA v. Dale concludes: “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” The anti-discrimination law as applied in this case is not attempting to force the photographer to promote an approved message for no other reason than that message. It is being applied to require that products and services be provided equally to citizens. The law may burden free speech, but it does have a compelling reason beyond the message itself and therefore BSA v. Dale is not applicable.
Quote
December 20, 2009, 4:43 pmDavid Nieporent says:
Uh, wrong. “This” is an issue specifically about same sex marriage, because “this” is about a specific case in New Mexico which involved same sex marriage. Once again, outrage substituting for reading.
Quote
December 20, 2009, 4:48 pmDavid Nieporent says:
Says who?
Well, it includes a “significant burden” test. (“We must then determine whether Dale’s presence as an assistant scoutmaster would significantly burden the Boy Scouts’ desire to not ‘promote homosexual conduct as a legitimate form of behavior.’”) Is the distinction between “significant burden” and “serious burden” really meaningful enough to matter for the purposes of this discussion? (Moreover, the case quotes the Jaycees case, which did use the exact phrase “serious burden.”)
Have you ever looked up the phrase “conclusory” in the dictionary? A copy of your argument is right there next to the word.
One might just as easily say, “The anti-discrimination law in New Jersey was not attempting to force the Boy Scouts to promote an approved message for no other reason than that message. It was being applied to require that public accommodations be provided equally to citizens. Therefore, BSA v. Dale is not applicable.”
In short, your attempt to distinguish them is completely unavailing; it’s just saying, “It’s different because it’s not identical,” without actually identifying any relevant differences. In each case, we had a state government which didn’t approve of a particular message that an organization wanted to express, and tried to use its anti-discrimination statute to compel the organization to express a different message.
Quote
December 20, 2009, 5:07 pmPaul Davis says:
Wrong! You’re an idiot. I Dave Nierporent, am superior and better than you! Bye now, and please leave with your reasoning and thoughtfulness. We only take snark remarks and belittling others on this discussion board. I can’t make a real argument, so I try to make others feel inferior and stupid so that they don’t see through my baseless arguments.
Actually, it’s a case that specifically involves sexual orientation and a state’s anti-discrimination law.
Quote
December 20, 2009, 5:11 pmjrose says:
Quoting from Dale, distinguishing Roberts, Duarte and New York Stat Club Assn., ‘[a]nd in the associational freedom cases such as Roberts, Duarte, and New York State Club Assn., after finding a compelling state interest, the Court went on to examine whether or not the application of the state law would impose any “serious burden” on the organization’s rights of expressive association.’
There is nothing in Dale which suggests the “serious bruden” test is limited to expressive association, and what “three parts” are you talking about?
If read the paragrpah preceding this quote, you will realize the quote has nothing to do with the motive of the law in any particular application (the motive wasn’t promoting an approved message in Dale either). The quote’s only purpose is to state that the courts cannot be guided by their views about the rightness or wrongness of the Boy Scouts viewpoint. That applies here as well to Elaine’s viewpoint.
Quote
December 20, 2009, 6:08 pmJamie Ward says:
I think you should read and understand BSA v. Dale a little more thoroughly before you pull it out as a justification that any and all anti-discrimination laws that burden free speech should be found unconstitutional. The justices were very concise in their opinion as it applied in this case.
Quote
December 20, 2009, 7:09 pmjrose says:
I didn’t claim that any and all anti-discrimination laws that burden free speech should be found unconstitutional. I said that those which seriously burden free speech will be found unconstitutional on as applied basis. I haven’t seen anything in Dale to suggest otherwise, but who knows what distinctions a future SCOTUS might make. I will only note that this judge’s ruling was consistent with Dale, in that he found no such serious burden.
Quote
December 20, 2009, 7:27 pmPaul Davis says:
In Dale, the court first found that BSA was an “expressive association”. The court then goes on to consider the burden on free speech. I’ve already noted that Elane Photography fails the expressive association test. You can’t simply bypass step one as irrelevant, and proceed to step two. The court gives direction on this in the Dale opinion itself (reference United States v. O’Brien).
It seems as though you are actively searching for a reason to reverse the finding in Elane instead of considering the facts of the case. There is a long line of cases prior to Dale that upheld anti-discrimination laws even when they burdened constitutionally protected activities. Dale did not overturn all those previous findings, it only clarified a particular narrow application in regards to expressive associations.
Quote
December 21, 2009, 1:36 pmJamie Ward says:
I concur as well. Applying Dale standards to this case is not even logical. There is a reason that Dale isn’t cited often in opinions — and it’s not that it is being ignored.
Quote
December 21, 2009, 2:04 pmbluprntguy says:
Bigots LOVE to trot out Dale. It’s the one decision that the Supreme Court has issued where those homosexual activists were put in their place. Bigots think that Dale applies to everything and everyone.
Quote
December 21, 2009, 2:18 pmjrose says:
What is the “step one” you refer to? Dale rejected the test used in O’Brien.
To the contrary, I am open to persuasion as to how Elaine’s expression rights were not seriously burdened. I’m even open to persuasion as to why the test from Dale ought not be used, and what the proper test should be (but you have provided no good reasons as of yet).
Please cite those cases that upheld anti-discrimination laws even when they seriously burdened constitutionally protected activities.
Quote
December 21, 2009, 8:24 pmJamie Ward says:
I think if you apply the test in O’brien, you would find that it doesn’t seriously burden free speech.
Quote
December 21, 2009, 8:42 pmjrose says:
Of course it isn’t. But in Hurley, the Court frowned upon an application of an anti-discrimination statute that seriously burdened expression having nothing to do with association.
I agree that if the test from O’Brien is used, Elaine’s loses. But, why should that test apply here?
Quote
December 21, 2009, 10:40 pmJamie Ward says:
awesome. now you are attempting to apply a public parade put on by a group that wishes to control the message to a business that provides services to private individuals. can you see the difference?
Quote
December 21, 2009, 10:54 pmjrose says:
Are you arguing that the restrictive standard applies when expressive association or group message is at stake, but a more lenient standard should apply when an anti-discrimination statute infringes upon a service provider’s expression? That would get us back to Eugene’s hypothetical: should a person who writes press releases as a service be compelled to do so for a same-sex marriage planning company or a Scientology book distribution company if he disagrees with the message?
Quote
December 21, 2009, 11:22 pmDavid Nieporent says:
Yes, it is. It’s inherently such, which gives it much more rights than an organization like the Boy Scouts, which is trying to claim expressive association, a much stricter standard. For expressive association, you have to show that the organization exists for the purpose of expressing a specific message and that associating with specific members is a necessary part of expressing that message. Only after that can you evaluate whether the application of state law (such as anti-discrimination law) poses a substantial burden on that message. But Elane by its very nature expresses messages, so it satisfies the initial step; the only remaining question is whether the application of anti-discrimination law substantially burden’s Elane’s ability to express its message.
Dale in no way held, as you seem to think, that only expressive association, rather than pure expression, is protected by the first amendment from encroachment by anti-discrimination law.
Quote
December 21, 2009, 11:41 pmJamie Ward says:
David, your analysis is not even based on case law and is so far beyond reality there actually isn’t even a good place to start. This company is a business. Like Wal-Mart, a dry cleaner, or the local diner. They sell stuff to people. That the product is inherently creative has little to do with the issue. Companies that offer creative content for sale are still subject to anti-discrimination laws.
Quote
December 22, 2009, 11:04 amRussellD says:
Should an advertising agency be allowed to tell the local gay bar that they won’t provide services because they cater to gay people? Can they deny services to the local African American church and tell them it’s because they think negroes should still be slaves? The answer by the way is no — look it up.
Oh yeah, one more thing. When a potential client contacts you and says they want to hire you, if you happen to object to something about them, you tell them you are unavailable on that day. You don’t write them back and tell them you are discriminating against them because of who they are so that they have a smoking gun for the court case. The Owner wanted to prove a point and to shame the Client.
Quote
December 22, 2009, 12:52 pmjrose says:
I suspect you are correct on these hypotheticals because there is no serious burden on expression if an ad agency is compelled to proivde services based on who their clients are, or who the clients cater to (but since you said you can look it up, please provide citations).
But, can an ad agency be compelled to provide service for a same-sex marriage planning company, or a church’s Martin luther King, Jr. day celebration event?
Quote
December 22, 2009, 1:24 pmDavid Nieporent says:
Well, my analysis is similar to that of Prof. Volokh’s, and he may actually be something of an expert on the subject, don’t you think?
Well, no; it has everything to do with the issue. In fact, it is the entire issue.
You seem to think there’s some sort of exception to the first amendment for “businesses.” There isn’t. Read Justice Chin’s concurring opinion in Lyle v. Warner Brothers Television, for instance. (Bonus: it cites Prof. Volokh.)
Sheesh, you really do like begging the question, don’t you? That last sentence is what needs to be proven; you can’t prove it just by re-asserting it.
Or, more precisely: of course companies that offer creative content for sale are subject to anti-discrimination laws; that’s not in doubt. Nobody is suggesting, for instance, that Elane can refuse to hire a black person to work the cash register. The issue is what happens when those anti-discrimination laws directly clash with the first amendment, by either compelling or forbidding particular speech. Whether it’s a “business” or a “service provider” or an “organization” or a “parade” is irrelevant; the question is whether applying the anti-discrimination law would substantially burden the first amendment rights at stake.
Quote
December 22, 2009, 1:36 pmDavid Nieporent says:
Quote
December 22, 2009, 1:40 pmDavid Nieporent says:
Whoops. Error in my HTML made that hard to read. What I wrote was:
Exactly. How come people who oppose Elane’s position here keep trying to make this about the identity of the clients, when the first amendment issue is actually about the content of the speech?
Quote
December 22, 2009, 1:46 pmJamie Ward says:
Probably because the Owner emailed the client and told them she was denying service because of their identity and followed that up with a statement that there was an unwritten rule in the company that they would deny services to gays and lesbians because they “did not approve of homosexuality.” Based on the evidence presented, the company would deny ANY service to gays and lesbians, not just the one that was actually denied.
On even a rational level, there is a knowledge and general understanding that photographers regularly take photographs of clients and events without knowing much about them or necessarily condoning the actions or events portrayed in the photos. However, it this case the difference in the client was apparent, and the evidence concludes that there was an intent to discriminate based only on the sexual orientation of the clients.
Providing photographic services to a private individual is not even similar to the public actions and implied “approval of a message” that are argued in Dale or Hurley.
Quote
December 22, 2009, 3:51 pmDavid Nieporent says:
Are you just making up facts here? None of that appears in either the decision of the NM Human Rights Commission or the New Mexico District Court. The Human Rights Commission’s decision quotes the emails directly. The photographers’ first email said, in its entirety:
The followup email from the photographers said,
Neither one of the quoted emails said what you claim, and it’s hard to believe that if there were other emails that had actually said what you claimed, that the HRC would have neglected to mention it. Do you have some factual basis for your statements?
Quote
December 22, 2009, 4:09 pmDavid Nieporent says:
On an even more rational level, there is a knowledge and general understanding that people drive automobiles with license plates without necessarily condoning the message that the state puts on those license plates. But the Supreme Court still held that requiring someone to drive around with a license plate bearing a message one opposed was unconstitutional.
And in United States v. United Foods, the respondent company wasn’t required to do anything in “public”; it was merely taxed so the government could promote mushroom sales. The Supreme Court held that this compelled speech was a violation of the company’s first amendment rights.
Quote
December 22, 2009, 4:24 pmDavid Nieporent says:
More generally, there is a long line of “compelled speech” cases that says that it’s the compulsion itself, not the “implied approval of a message,” that poses first amendment problems. You can’t bypass the first amendment simply by saying, “Well, nobody would think the photographers approve of the wedding.”
Quote
December 22, 2009, 4:27 pmJamie Ward says:
See the findings of facts.
Quote
December 22, 2009, 4:48 pmJamie Ward says:
I would entirely disagree with this statement.
Quote
December 22, 2009, 5:14 pmJamie Ward says:
The cases in Hurley and Dale deal with the implied approval. It is relevant.
Quote
December 22, 2009, 5:17 pmDavid Nieporent says:
Really? So when you see a car with New Jersey plates, what goes through your mind is that the driver is affirmatively endorsing the claim that New Jersey is a garden state? That the driver of a car with New Mexico plates is asserting that New Mexico is the land of enchantment? That the driver of a car with New Hampshire plates personally thinks we should “Live Free or Die”? You don’t just look at these as state slogans, but as statements by the drivers?
I’m beginning to think you’re just trolling here (yes, I can be slow on the uptake about things like that sometimes; I like to give people the benefit of the doubt.) Not only did I “see” the findings of facts, but I quoted from them. Your alleged quotes from Elane’s emails do not appear in the emails quoted in the findings of fact.
That “implied approval” may have been relevant in those particular cases does not mean that lack of implied approval means there’s no first amendment issue. See the United Foods case I mentioned earlier. See Abood. See Wooley v. Maynard.
Quote
December 22, 2009, 5:36 pmJamie Ward says:
No, but if New Jersey decided that all licenses plates shall state “Abortion Rocks” or “Gays are better than heterosexuals, I would certainly expect that there would be a clear first amendment concern. Similarly, I would expect that at least one person might have an issue with practically anything that New Jersey might put on a license plate, and that their speech rights may need to be addressed if the issue is raised.
The findings note that the Owners had an unwritten rule that they would not photograph anything that conflicted with their religious beliefs. They then noted that the ‘did not approve of homosexuality.’ They also noted that photographed a wide range of life events. Since a same sex commitment ceremony is materially the same as an opposite sex wedding (except due to sexual orientation), they are discriminating based on sexual orientation
(and please let’s not re-argue your “I can refuse service to people with black skin, and it’s not racial discrimination arguments”. No court is going to buy that. They have exceeded the burden of proof that this was discrimination based on sexual orientation).
I never said the lack of implied approval indicated that there was no first amendment issue. However, you can’t apply the standards of either Hurley or Dale to this one, if there is a substantial difference in the context of the case itself. There are other cases that more closely approximate this case in which the court ruled in favor of the anti-discrimination laws even when they burdened free speech.
Quote
December 22, 2009, 6:34 pmDan E says:
I’m late to the party on this, but I’ll throw in a comment. Whether or not wedding photography is expressive can be argued (I think it can be very expressive). However, what is really at the root of the matter is religious protection. Even if the court decides that the LLC is not a person, it’s employees are. I would argue that the company should not be able to compel it’s employees to participate in anything that is contrary to their religious beliefs. Whether or not someone outside (or maybe even inside) the Christian church thinks that the Bible is vague on the subject, there is ample evidence that the act of homosexuality as a sin is generally regarded by most churches as a core Christian belief. It is not akin to racism. So, if within their few employees, there is no one available to photograph the wedding, the company should not be forced to take the assignment.
Quote
January 13, 2010, 12:32 pmJamie Ward says:
Sorry Dan,
There are many people that still believe that interracial marriage is a sin, but the state requires that individuals provide services to them even if it offends their religious views.
What you are asking for is a specific loophole so that we can protect everyone against discrimination except gays and lesbians. That’s pretty sad.
Quote
January 14, 2010, 9:47 amcontract technical writer says:
Well The Volokh Conspiracy » Blog Archive » Religious Accommodation Statutes and a Right Not To Participate in Same-Sex Weddings was interesting. Not exactly what I was expecting to find when searching for contract technical writer but worth a few minutes of my time anyway. You’ve clearly been busy lately!
Quote
March 29, 2010, 2:20 pmcontract technical writer says:
Supporting documentation can make the difference between a bit of kit that’s ok or one that’s exceptional at the job it was designed for. How do you know you’re using something properly if you don’t know it’s capabilities for instance. I’m not sure why The Volokh Conspiracy » Blog Archive » Religious Accommodation Statutes and a Right Not To Participate in Same-Sex Weddings appeared when I was searching specifically for contract technical writer but I read it anyway and will think a bit more about it. There are some interesting points.
Quote
March 29, 2010, 2:24 pm