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Photographers Denied the Freedom To Choose What They Photograph:

Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane's work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock's same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney's fees and costs.

I haven't seen any written statement of reasons, but the order must implicitly rest on two interpretations of state law: (1) This sort of photography company constitutes a "public accommodation," defined by state law "any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private." (2) A refusal to photograph a same-sex commitment ceremony constitutes sexual orientation discrimination, which New Mexico law forbids. These may or may not be sensible interpretations of the statutory text. But the result seems to me to likely violate the First Amendment (though there's no precedent precisely on point).

Photography is an art, and Huguenin is an artist. It may not be high art, but it embodies a wide range of artistic choices (especially since she says she takes a "photojournalist" approach, rather than just doing normal staged photos). And though she sells the art to its subjects, that is of course part of a long and continuing tradition in the arts, including painting and sculpture, as well as photography. Certainly many of the works protected by the First Amendment (books, newspapers, movies, and the like) were created for money and distributed for money.

Yet the New Mexico government is now telling Huguenin that she must create art works that she does not choose to create. There's no First Amendment case squarely on point, but this does seem pretty close to the cases in which the Court held that the government may not compel people to express views that they do not endorse (the flag salute case, West Va. Bd. of Ed. v. Barnette, and the license plate slogan case, Wooley v. Maynard).

For whatever it's worth, Huguenin also says she exercises political judgment in deciding what to photograph (for instance, she reports that she refuses to make photographs that put horror films in a positive light, or to take photographs that positively portray abortion, pornography, or nudity, as well as same-sex marriage). I don't think that sort of political selectivity should be required for photographers to be protected as artists, but it seems to me to highlight the scope of the artist's judgment, and the artist's constitutional right to exercise such judgment (just as a bookstore has the right to choose which books to stock).

Consider also a hypothetical analogy: Say that instead of Willock's trying to hire a photographer, Willock was trying to hire a solo freelance writer (or a writer in a two-person freelancing partnership) to write materials for Willock's (hypothetical) same-sex marriage planning company. The writer refused on the grounds that she didn't want to promote such a company.

I take it the law would cover the writer as much as it would cover the photographer (why wouldn't it?). Yet wouldn't requiring writers — even writers of press releases and Web sites — to write words that express views they reject violate the First Amendment? And if not, what's the difference between that and requiring photographers to take photographs that implicitly but strongly express views they reject? (Wedding photographs, of course, express views celebrating the event being photographed.)

More on the religious freedom issues and perhaps some other matters shortly.

Davidbernstein (mail):
Eugene, how about the photographer agrees to photgraph the wedding, but tells the couple she will stamp each photo "The photographer is against same sex commitment ceremonies, but I am photographing this one because the government is making me." Would still violate the absurdly expansive version of "public accommodations" law, but it strikes me as bringing the first amendment issue directly into focus--even if the government has the right to force someone to do something expressive against her will, I don't see how the government could then dictate the content of what is expressed.
4.9.2008 3:10pm
Turk Turon (mail):
As an artist, she should be able to say, "I just don't think that I am the right photographer to capture the essence of your ceremony."

Can the gov't tell Andres Serrano that he MUST p*ss into that beaker, whether it contains a crucifix or not?
4.9.2008 3:20pm
ERH:
This case isn't about art it's about commerce. If she ran a lemonade stand and refused to sell same sex couples or interracial couples, it would be clearly discriminatory.
4.9.2008 3:22pm
lostmycookies (mail):
Dale Carpenter needs to join in on this discussion. I am especially intrigued by the intersection of gay activism and the use of the power of the State to crush dissenters. Only 30 years ago gay liberation was to stop the State from crushing gay rights to be gay, with gays, in gay places. Now gay activism is to force nongays to accepts gays wherever, whenever and however gays choose. Nice.
4.9.2008 3:23pm
southern lawya:
First, I do criminal defense and not 1st Amendment, so I count as a layman here.

Question: would she be permitted on 1st Amendment grounds to refuse to photograph a wedding ceremony because she does not approve of, for example, black people and did not want to support black families?

If she holds herself out as a business offering to perform a service, then it would seem that she cannot refuse that service to anyone falling into a protected class. It appears that New Mexico makes sexual orientation a protected class, so it seems to me that the NM courts got it right under their law.

I don't really buy the artist argument in this case - she is not creating art per se, but rather creating a photojournalistic record of an event.

I know some gourmet chefs who consider themselves to be artists. They certainly would not be permitted to refuse service to someone in their restaurant because of the would-be patron's membership in a protected class.
4.9.2008 3:24pm
steven lubet (mail):
It is hard for me to see that photographing a same-sex commitment ceremony constitutes any greater endorsement than, say, catering or providing the music or the wedding hall.

May I suggest that offering one's artistic services (as opposed to completed art work) in the marketplace may be understood as an implicit waiver of certain first amendment interests. After all, a wedding photographer obviously agrees to photograph the family, even the highly unphotogenic relatives, all artistic judgments aside.
4.9.2008 3:26pm
Houston Lawyer:
The whole point of the law is to punish people who don't treat gays and straights exactly alike. Would the photographer have a first amendment claim if she said she didn't shoot marriages where the bride and groom weren't of the same race? Our antidiscrimination laws already step all over people's first amendment rights to say what they want while at work or to advertise their roommate preferences.
4.9.2008 3:32pm
J_A:
To me, there is a huge difference between offering a service for hire (i.e. photograhing an event, such as a wedding, a conference, a bar mitzva, etc.) and expresing myself as an artist, and then selling my art. I have no doubt that the latter is protected speech, but I don't see the former as speech. If I am hired to move furniture for a family, am I exercising speech? Do I exercise my free speech rights when I go to work in the morning? If so, if I get fired, is my free speech right violated?

A different question is if, under NM law, service providers of any sort can or cannot discriminate against, or choose, their customers. And whether some providers, like photographers for hire or landscapers or furniture moving companies can discriminate, while others, like restaurants, can't.

Would you see any difference if the photographer had refused to take pictures of your son's bar mitzva?
4.9.2008 3:33pm
Curious Passerby (mail):
It's an interesting distinction between refusing to serve food to black and refusing to photograph gays. Once the government gets the power to force people how to run their businesses it's a slippery slope into a totalitarian society, which is what the Left needs to get the society they want.

Hopefully some liberty group is giving them free legal defense. Where can I contribute?
4.9.2008 3:34pm
MadHatChemist:
In order to chip away at freedom, the state can simply invoke "commerce" as an excuse to regulate what people can and can not do (and in effect influence what and how people think)? Would the same people siding with New Mexico support government control over a woman's choice to terminate her pregnancy because "commerce" is involved somehow?

The use of "commerce" marginalizes and limits a person's freedoms. Sure, they could just quite and do things for free...but the real world tends not to work that waysince people need to earn a living.
4.9.2008 3:42pm
darelf:
It seems they followed the law.

Is it time for the law to change?
4.9.2008 3:42pm
Jordan Lorence (mail):
The Alliance Defense Fund is representing Elane Photography in this First Amendment compelled speech case. ADF's website is at www.telladf.org and its phone number is 1-800-TELLADF.
4.9.2008 3:42pm
Duncan Frissell (mail):
We warned you commie bastards that this would happen when you passed the '64 Civil Rights Act. (Not Eugene, of course.)

Aren't all commercial activities expressive in some fashion or another?

Hasn't the 1st Amendment defense been ruled out since Pittsburgh Press vs. Pittsburgh Human Relations Commission? (The gender-segregated Want Ads case). Poor newspapers. They're losing out to Craig's List for Want Ads and Craig's List posters can post discriminatory ads but newspapers can't.
4.9.2008 3:43pm
SeaDrive:

Elane has been ordered to pay over $6600 in attorney's fees and costs.


Who sued whom, and who ran up attorney's fees? Did Wilock sue Elane to get her to do the work? Or did Wilock just complain to the state? If the latter, whose fees?

As a business matter, Elane should have just subcontracted out the work, and done her best to ignore it.
4.9.2008 3:44pm
darelf:
A thought struck me just now.

What if the wedding in question was to be performed, and photographed, in the nude ( and on religious grounds, let us suppose, so that it becomes a protected class )?
4.9.2008 3:45pm
Hans Bader (mail) (www):
Photography is inherently expressive. That's why copyright exists in photographs, and why the originality test of the copyright laws is satisfied virtually per se.

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.

The New Mexico Human Rights Commission's ruling against Elane Photography in the Vanessa Willock case should therefore be reversed.

-- Hans Bader, Counsel, Competitive Enterprise Institute
4.9.2008 3:47pm
Steve:
I don't consider it a slam dunk to conclude that a wedding photographer is an artist in the same sense as, say, a portrait painter. I think it is a more difficult question than this post acknowledges.

In the context where a restaurant refuses to serve someone based upon their membership in a protective class, has anyone ever argued that food preparation is expressive? Surely the top chefs in their profession consider their work to be akin to art.
4.9.2008 3:52pm
southern lawya:
Although the parade in question was not holding itself out as a business offering a service.
4.9.2008 3:53pm
OK lawyer (mail):
Private enterprises should be allowed to serve any one they choose, for ANY reason. They should also be allowed to deny service to any one they want, for ANY reason. If GM does not want to hire Catholics, too bad. If Starbucks only wants Hispanic baristas, great.
4.9.2008 4:03pm
Prufrock765 (mail):
Ollie finally gets his revenge.
4.9.2008 4:09pm
Chris Hundt (www):
southern lawya, steve: Even if food preparation is expressive, I don't think the analogy to denying service in a restaurant is apt: in the case of the wedding photographer, the law not only requires her to produce a work of art, but dictates the content: she must depict a same-sex commitment ceremony, which she would not have to depict if she did not have such clients. If food preparation is expressive, I feel that the analogous situation in the restaurant business would be for the law to require the chef to design certain dishes specifically to accommodate protected classes, which I presume it does not.
4.9.2008 4:09pm
Edward Weston:
Anyone who would argue that making a photograph is any less of an artistic endeavor than creating a painting is just displaying great ignorance of photography. I bristle at the very suggestion that what Elane does is not "high art."
4.9.2008 4:12pm
David M. Nieporent (www):
In the context where a restaurant refuses to serve someone based upon their membership in a protective class, has anyone ever argued that food preparation is expressive? Surely the top chefs in their profession consider their work to be akin to art.
Food preparation may or may not be expressive, but what you're describing is discrimination in food serving, and hence entirely different than this issue.


May I suggest that offering one's artistic services (as opposed to completed art work) in the marketplace may be understood as an implicit waiver of certain first amendment interests.
I suspect that we can't stop you from suggesting it, but it seems like a rather odd distinction -- if anything, the opposite seems to make more sense. The government can order you to create art?
After all, a wedding photographer obviously agrees to photograph the family, even the highly unphotogenic relatives, all artistic judgments aside.
Key word: agrees. Which of course implies a right to disagree, a right not present in this case.
4.9.2008 4:14pm
Javert:
This case isn't about art it's about commerce. If she ran a lemonade stand and refused to sell same sex couples or interracial couples, it would be clearly discriminatory.

And might be immoral, but should be legal. The government has no business legislating morality. How is it that the government has the right to force her to do work that she doesn't want to do? Sounds like conscription and involuntary servitude, not an America that respects individual rights.
4.9.2008 4:17pm
David M. Nieporent (www):
To me, there is a huge difference between offering a service for hire (i.e. photograhing an event, such as a wedding, a conference, a bar mitzva, etc.) and expresing myself as an artist, and then selling my art. I have no doubt that the latter is protected speech, but I don't see the former as speech.
What an odd statement. It depends what the service is. The service of furniture moving isn't speech; the service of speaking is speech. (Taking photographs is a form of protected expression.)
4.9.2008 4:18pm
southern lawya:

Private enterprises should be allowed to serve any one they choose, for ANY reason.


Standard libertarian view, but does not address the question at hand, which is: What does the law, as it exists now, require in this situation?

It appears that the law requires the photographer to refrain from discrimination in her business practices - whether that is against homosexuals, blacks, whites or women.


What if the wedding in question was to be performed, and photographed, in the nude


Even if the nudity is on religious grounds this seems to be a different situation. Does NM have public nudity laws? I imagine that there is case law out there somewhere that holds that public nudity is not protected by the 1st amendment. And wouldn't bringing in outsiders make the ceremony public?
4.9.2008 4:19pm
anonthu:
Aren't the photographs of a wedding initially considered to belong to the photographer, and not to the couple? How might that affect this decision?

What makes me ask is that we recently had a family session with a professional photographer. For an additional fee, she "released" all the raw images (with no watermarks) for us to use as we pleased.
4.9.2008 4:24pm
EIDE_Interface (mail):
Curious that not a single person has mentioned one of the highest of all freedoms - that of association. Without it, we are mere slaves of the government. At least admit it.
4.9.2008 4:25pm
EIDE_Interface (mail):

Javert:
This case isn't about art it's about commerce. If she ran a lemonade stand and refused to sell same sex couples or interracial couples, it would be clearly discriminatory.

And might be immoral, but should be legal. The government has no business legislating morality. How is it that the government has the right to force her to do work that she doesn't want to do? Sounds like conscription and involuntary servitude, not an America that respects individual rights.


Well since 1960s Americans don't have those rights anymore. For better or worse, Americans have decided that legislating morality is a better thing to do as a response to legacy of racism.
4.9.2008 4:27pm
David M. Nieporent (www):
It appears that the law requires the photographer to refrain from discrimination in her business practices - whether that is against homosexuals, blacks, whites or women.
But the point isn't whether NM interpreted its law correctly, but whether that law is superceded by the First Amendment.
4.9.2008 4:30pm
southern lawya:
One last comment before I log off for the day.

I don't see this as the guvmint dictating the content of her photography. It is, instead, a requirement that she not discriminate against a protected class in offering her usual services.

It is not at all the same as if, for example, a professional sports photographer refused to do a commitment ceremony. Forcing a sports photographer to do a ceremony that he does not normally do and may well not have the competence to do a workmanlike job with would be dictating content (and might also violate the 13th Amendment).

Here, so offers a service and refused to perform that service for a couple because of their membership in a protected class.

I guess she could just do the job and deliberately do a poor job, but would that not open her up to a suit for breach of contract?
4.9.2008 4:34pm
EIDE_Interface (mail):
southern lawya:

The lesson learned here is if you value your freedom of association in America, don't operate a service-oriented business for the general public. Also I'd like liberals to be honest about how they wish to crush peoples' freedom of association for "the larger good".
4.9.2008 4:35pm
New World Dan (www):
Aren't the photographs of a wedding initially considered to belong to the photographer, and not to the couple? How might that affect this decision?

Absent an agreement beforehand, both you and the photographer could both reasonably make a copyright claim on the pictures. It's pretty clearly a joint effort. Likewise, it could also be considered a "work made for hire". In any event, if it's something you're concerned about, put it in writing ahead of time. It's the type of thing I'm rather stubborn about (after a minor disagreement with my own wedding photographer a decade ago). If the originals aren't delivered to me I generally refuse to do business. There are plenty of people happy to take my picture on my terms.
4.9.2008 4:36pm
Prufrock765 (mail):
Nah the freedom to associate has to take a back seat to the freedom of black people (women, handicapped people, gays) to fully participate in the culture. That battle is over.
But it is funny watching people spinning in circles trying to act like there aren't pretty heavy costs to the above policy.
A wedding photographer is not just an "artist", but a "high artist", and is therefore different from a restaurant owner, or a carpet cleaner.
4.9.2008 4:39pm
calmom:
Photography is a service. But so are medical services. And physicians can refuse to perform certain medical services if they violate the physicians' conscience or religious beliefs. Some physicians refuse to perform abortions. Some Jewish physicians won't perform IVF. So long as they refer the patient to a doctor who will treat the patient, there isn't a legal problem.

Now photography isn't as intimate, if that's the right word, but there does seem to be a distinction in the law between some services and others.

Also consider the pharmacist cases that are making their ways through the courts concerning the morning after pill.

As a practical matter, who would want to hire a photographer who didn't want to photograph your wedding? I'd want someone who would light me in a flattering way, who'd do a great job because she wanted to do a great job. If this photographer resents that the law forces her to take the job, how good are the pictures going to be?
4.9.2008 4:39pm
EIDE_Interface (mail):
Of course the defendant is arguing free-speech grounds since it's her only "legal" leg to stand on. She can't argue FOA because we as a nation have decided since 1964 that FOA is kaput. Of course, to me FOA isn't dead as a fundamental human right, but 99% of the Americans disagree.
4.9.2008 4:41pm
JosephSlater (mail):
And one response to the First Amendment challenge is to say, "well, nobody thinks current courts would strike down a law requiring bars to serve blacks as well as whites, and that's analogous."

There are two possible responses to that point. One is that "but courts SHOULD strike down such laws." The response to that is, "perhaps in libertarian theory, but that ain't gonna happen in the U.S. today."

The other response is, "that hypo is not, in fact, analogous." In which case, the question would be, why not? Because discriminating against gays is based on a religious belief? Because photographing a wedding involves "expresive association" as in the Boy Scouts v. Dale case?

I'm not sold that either of those as distinctions are significant under current law. Your average business can't claim that it won't serve blacks because it has religious concerns about doing so. And can this photographer really show that her business was organized with an expressive purpose to send certain messages about gays (which is part of the test in Dale)?
4.9.2008 4:42pm
EIDE_Interface (mail):

Prufrock765 (mail):
Nah the freedom to associate has to take a back seat to the freedom of black people (women, handicapped people, gays) to fully participate in the culture. That battle is over.
But it is funny watching people spinning in circles trying to act like there aren't pretty heavy costs to the above policy.
A wedding photographer is not just an "artist", but a "high artist", and is therefore different from a restaurant owner, or a carpet cleaner.


The problem is that when you force a service provider into the transaction, they will not give good service, because you can't legislate tolerance for another person. However, you can drive that person to early grave due to the stress of the situation, which I guess is the point right? Kill all the bigots, because that's what they deserve right?
4.9.2008 4:45pm
JosephSlater (mail):
Gosh, life was sure better before Title VII and other laws. In those days, sure, women and blacks were excluded from massive swaths of employment -- generally, the better-paying, more prestigious jobs. But at least people who organized into corporate forms and got the various advantages of so doing were free to continue to impose incredibly harmful forms of irrational bigotry in the name of "free association"!
4.9.2008 4:48pm
astrangerwithcandy (mail):
why can I not choose with whom I do business?
4.9.2008 4:49pm
EIDE_Interface (mail):
No you can't choose who you shall do business with. The state shall force you to do business with anyone who walks in the door. This is America after all, freedom baby!
4.9.2008 4:54pm
JosephSlater (mail):
astrangerwithcandy:

Generally, you can. But, for example, if you are covered by anti-discrimination laws, you can't refuse to serve people on the basis of, say, their race. Why is that? Well, because of the whole disgraceful and very harmful tradition of racism leading to people doing just that. Plus Congress's Commerce power (and the power of states to regulate businesses within states).

This thread is a reminder of why certain strands of libertianism attract support roughly equivalent to what would fill a [20th century reference alert] phone booth. Balancing the harms to Joe's Widgets of not hiring black workers solely because they are black versus the systemic, horrific effects not just on blacks but on society in general of pervasive employment discrimination, society in general has emphatically decided that the latter is more important.
4.9.2008 5:01pm
David M. Nieporent (www):
I'm not sold that either of those as distinctions are significant under current law. Your average business can't claim that it won't serve blacks because it has religious concerns about doing so. And can this photographer really show that her business was organized with an expressive purpose to send certain messages about gays (which is part of the test in Dale)?
Joseph, Dale was an expressive association case. But this is direct expression -- photographs.

She's not saying that she doesn't want to photograph them because she doesn't want her business to be thought of as gay-friendly; that would be analogous to Dale, but it would fail as an argument because she couldn't show that the purpose of her business is expressive. That's not what we have here; we have her saying that she doesn't want to personally express a particular viewpoint.

I think that, as EV suggests, people are being distracted by the fact that the subject of this is photography, which doesn't exactly "seem" like speech. If the woman ran a business in which she provided emcee services for receptions, could the government order her to say nice things about the wedding couple?
4.9.2008 5:04pm
EIDE_Interface (mail):
Basically taking Joseph Slater's "reasoning", we are already the Soviet Socialist States of America. Thank you for confirming it.
4.9.2008 5:06pm
wooga:
This is a prime example of confusing the 'discrimination against status' and 'discrimination against activity'.

If Ms. Willock was marrying a man, would the photographer Ms Huguenin have refused service? Probably not. Ms Huguenin's discrimination was because of her objection to an activity (the gay ceremony). She did not discriminate against Ms Willock because Ms Willock was part of a protected class, but rather because Ms Willock was engaging in an activity that the photographer found objectionable.

Thus the analogy is not to a white landlord wanting to refuse tenancy to blacks, but rather to a white landlord refusing to rent to any tenants who do some behavior 'stereotypically associated with black people' (insert your own politically incorrect activity).

Yes, I know the 'end' is the same: Ms Willock doesn't get her wedding photographed by this lady. But, unlike the totalitarians among us, I believe the MEANS are more important than the END, and it is important to look at the intent of the person you are fining, not just the offense taken by the complainant.

P.S., I know SCOTUS totally disagrees with me. Romers v Evans was the last gasp of the 'status versus behavior' distinction, and the statist part of the court has since obliterated it.
4.9.2008 5:09pm
Prufrock765 (mail):
But David isn't the salami getting sliced almost comically thin?
What if she were the stationer's and refused to print the invitations? expressive speech? it is printed material and there is some artistry, I guess, involved in the production of the cards...? What if she had an utterly garden variety set-up like JC Penneys and said, "I won't let you stand in front of my black curtain and get your photo taken"?
Lucky for Con-law profs that this case comes up just when exam questions need to be written.
4.9.2008 5:12pm
JosephSlater (mail):
David M. Nieporent:

I understand what Dale was about -- I teach that case. Having said that, what you describe is a plausible distinction. But let me ask you this: suppose she had refused (for religious or other reasons) to photograph a wedding of a black couple because they were black. Do you think a court would buy a "direct expression" First Amendment defense?

As to your hypo, if my business is, say, to provide DJs or toastmasters for weddings, I think it's entirely plausible and not particularly troubling that I could be found liable for discrimination if I refuse to provide such services to black people precisely because they are black.

EIDE_Interface:

Much as I would like to take credit for the reasoning that led to the Civil Rights Act of 1964, I was only 4 years old at the time. I was merely articulating the reasoning that has underpinned such laws for over 40 year. And there is no serious legal or political movement trying to do away with Title VII or hold that its basic provisions are unconstitutional. If you find that equivalent to the old Soviet Union, you are, of course, free to leave the country.
4.9.2008 5:18pm
EIDE_Interface (mail):
wooga:

Intent is none of our business. Otherwise we do live in a totalitarian system if we are required to explain our intent. In a truly free society we should be able to politely refuse and leave it at that.
4.9.2008 5:20pm
astrangerwithcandy (mail):
JosephSlater-

So, its the prevalent moral view that regulates my actions and commerce, not the law?
4.9.2008 5:20pm
wooga:
steven lubet said:
May I suggest that offering one's artistic services (as opposed to completed art work) in the marketplace may be understood as an implicit waiver of certain first amendment interests.


You can suggest it, but I find that suggestion highly objectionable. But this illustrates the fundamental difference of opinion on several legal issues - which I think are practically impossible to bridge and will seprate all commenters:
1. The view towards free market capitalism as dangerous and needed to be managed, or perhaps controlled, by the government.
2. The view that the "freedom of contract" is an inconsequential freedom, ignored by all who have progressed beyond the 1920s.
3. Freedom of speech is not the most important right.
4. The expansive reading of the commerce clause by SCOTUS is the greatest thing since sliced bread
5. The distinction between state and private action is of little importance, as the impact on the victim (not the nature of the actor) is the proper measure of the need for government intervention.

Perhaps my language is strong and the points could be refined, but I think everyone who sides with the photographer will lean one way on the above 5 points, and everyone who sides with the bride will lean the other.
4.9.2008 5:20pm
EIDE_Interface (mail):
JosephSlater:

I just find it highly ironic that my parents left the old USSR to come to a nation they thought was freedom and in the end find out it's striving to become the new USSR.
4.9.2008 5:22pm
David M. Nieporent (www):
EIDE, we get it. You've only posted the same thing about 143 times on the three threads about this topic. Do you actually have anything substantive to add in response to any comments, or do you just want to yell communist in every other post?


(I agree with your position on the issue; that doesn't mean your posts aren't getting quite tiresome.)
4.9.2008 5:23pm
wooga:

Intent is none of our business. Otherwise we do live in a totalitarian system if we are required to explain our intent. In a truly free society we should be able to politely refuse and leave it at that.

It shouldn't be any of our business. But IF you assume that 'hate crime' or 'anti-discrimination' legislation is entirely appropriate (I don't), you must look at intent. Once you prosecute those sorts of laws without reference to intent, you become not just a totalitarian society, but a really bad totalitarian society.
4.9.2008 5:24pm
JosephSlater (mail):
astrangerwithcandy:

No, it's the law that regulates your business. For example, the Civil Rights Act of 1964 says that covered businesses can't, e.g., refuse to serve blacks because they are blacks. States typically have similar laws.

Of course those laws, like all other laws, are based on morality, as well as ecomonic and political theories, historical experience, etc.
4.9.2008 5:25pm
astrangerwithcandy (mail):
Also, very elementary question -

how do you differentiate btwn someone who is denying services bc the potential patron is black and denying services to a potential patron who is black and is known to be delinquent and/or in default of his/her financial obligations to other local businesses?

should i really have to incur the expense and time waste of a visit to small claims court bc an individual has protected status?
4.9.2008 5:27pm
EIDE_Interface (mail):
wooga:

I'd really like to know who is free in America, only those with more then $20 million in net worth?
4.9.2008 5:28pm
Clayton E. Cramer (mail) (www):
There was a time when homosexuals argued that what consenting adults do in private is none of the government's business. Now that they are in control--there's nothing that is outside the government's control.

Homosexuality, freedom: pick one.
4.9.2008 5:30pm
Lawman (mail):
This is just stupid! And a good example of one more liberty slipping awaaaaay!
4.9.2008 5:30pm
JosephSlater (mail):
astrangerwithcandy:

There is all sorts of legal precedents and rules that get at the question you are asking. Plaintiff has the burden to show that s/he was denied access to, say, the job because of discrimination, not because of a valid, non-discriminatory reason.

The existence of any law means somebody can sue you with no grounds under the law and force you to go to court. Your problem in that regard isn't with Title VII but, perhaps, with the lack of a "loser pays" rule in the U.S. If it makes you feel any better, plaintiffs in employment discrimination cases do worse at pretty much every level of litigation than plaintiffs do in pretty much any other kind of civil action.
4.9.2008 5:30pm
anonthu:
If you find that equivalent to the old Soviet Union you are refused service by a photographer, you are, of course, free to leave the country find another one.

Fixed!

No dig at you, JosephSlater (you've made valid arguments throughout the comments), but this pretty much summarizes my opinion on the matter and I couldn't resist...
4.9.2008 5:34pm
JosephSlater (mail):
anonthu:

Fair enough. I wouldn't ever make the "love it or leave it" argument seriously, but the comparison of Title VII to Soviet totalitarianism was so over the top that I responded in kind.
4.9.2008 5:36pm
Uh_Clem (mail):
Homosexuality, freedom: pick one.

One thing I love about this site is that if I hang around the comments long enough Clayton Cramer will eventually show up and post something so over the top I'll spew coffee all over the monitor.

Wow, dude. Project much?
4.9.2008 5:40pm
Dave N (mail):
What if she was a clergyman (er, excuse me, clergyperson) who ran a wedding chapel? Could she refuse to perform a same-sex wedding or commitment ceremony? I am guessing that most people would say "yes, she could." Now arguably, that is also a "service" (and an expressive service at that).

So the question becomes, why would she be allowed to refuse to participate in the service because of one set of First Amendment rights (as a clergyperson) but not allowed to refuse with respect to another set of First Amendment rights?

Of course, putting aside the "some chefs think they are artists argument," how does the fact that she takes photographs different from a florist who argues that he or she makes special wedding arrangements that are also clearly artistic? Does my hypothetical florist also get to refuse to design arrangements for a same sex ceremony?

And what if the couple wants a special piece of music created and contacts John Williams to compose and arrange it? Could Williams refuse? What if a composer has a Yellow Page ad that says, "I will write your unique wedding music for you"? Could that composer refuse?

Change "gay" to "black" in my hypotheticals and does that change the analysis in any meaningful way?

Frankly, I think photographs are so uniquely expressive that they are entitled to the full panoply of First Amendment protections and that the First Amendment should trump New Mexico law. But what about the florist?
4.9.2008 5:40pm
Clayton E. Cramer (mail) (www):

What if she was a clergyman (er, excuse me, clergyperson) who ran a wedding chapel? Could she refuse to perform a same-sex wedding or commitment ceremony? I am guessing that most people would say "yes, she could." Now arguably, that is also a "service" (and an expressive service at that).
Don't bet on it. A church in New Jersey refused to rent out their facilities for a same-sex civil union ceremony, and are now being sued under that state's antidiscrimination law.

I have a philosophical objection to antidiscrimination laws, but I have a grudging acceptance of them because of the history of governmental encouraged discrimination based on race and sex. But if the only way to stop this homofascism is to repeal all such laws--it's time. Although I rather suspect that by now the courts would insist that we could only repeal the ones about race and sex--and require us to keep sexual orientation as a protected class.
4.9.2008 5:53pm
Clayton E. Cramer (mail) (www):

One thing I love about this site is that if I hang around the comments long enough Clayton Cramer will eventually show up and post something so over the top I'll spew coffee all over the monitor.

Wow, dude. Project much?
So you don't see any problem with ordering people to do certain things that are contrary to their conscience? So if some state passed a law requiring everyone to go to church on Sunday morning (from the approved list, of course), and listen respectfully to the sermon, you wouldn't mind, I'm sure.
4.9.2008 5:57pm
Nick Good - South Africa (mail):
4.9.2008 6:00pm
JosephSlater (mail):
But if the only way to stop this homofascism is to repeal all such laws--it's time. Although I rather suspect that by now the courts would insist that we could only repeal the ones about race and sex--and require us to keep sexual orientation as a protected class.

Seriously, are you trying to engage in self-parody?
4.9.2008 6:02pm
Elliot123 (mail):
The solution is simple: just take a bunch of crappy pictures. Use the proper exposure, and lighting, but catch the least favorable aspects of the people and event. Tell the folks before hand that as an artist you doubt your creativity will flow freely, but you will do the best you can to capture what you see as the essence of the event.
4.9.2008 6:05pm
Clayton E. Cramer (mail) (www):

Seriously, are you trying to engage in self-parody?
Your side is quite prepared to engage in fascism: a complete and utter intolerance of any disagreement.
4.9.2008 6:08pm
Uh_Clem (mail):
I think photographs are so uniquely expressive that they are entitled to the full panoply of First Amendment protections and that the First Amendment should trump New Mexico law.

Really? Even Wedding photographs? My take is that wadding photos are basically a commodity, like the flowers, the catering, the musicians, the limo, and all the other trappings of the wedding industry. They might want you to think of them as artists, but really it's just a commodity.

So, I don't see this as a first ammendment issue at all. It's just a public accommodations issue, assuming that hiring a wedding photographer is a public accomodation.

That said, I think there should be a "Mrs Murphy" exemption for this (which states that if an apartment building has four or less units and the owner lives in one of the units, it is exempt from the Fair Housing Act) and that Huguenin should be exonerated under that as the owner-operator of a small business.

There's enough Libertarian in me to object to the government forcing individuals to do something they don't want, so reasonable exemptions for small owner-operated businesses would be desirable. I have fewer qualms about restricting the liberty of non-people (e.g. corporations).
4.9.2008 6:12pm
whit:
"Curious that not a single person has mentioned one of the highest of all freedoms - that of association."

said right no longer exists.

you smack yer husband in the face and the cops respond and arrest you. he insists he doesn't want prosecution. you get arrested under mandatory arrest laws. THEN, the judge issues a no-contact order DESPITE the fact that you do not desire it, and that prohibits ANY contact (phone or otherwise) between you and your husband against both of your wishes.

free association does not mesh with DV law.

i've HAD to arrest people in situations (one of the few mandatory arrest sit's) where a respondent in an order was hanging with their signficant other. the fact that the significant other never requested the order, and in fact wanted/tried to get it lifted matters not. big brother says that person cannot associate with you. it's for your own good. daddy knows best. even if you invited them over to your house. makes no difference.
4.9.2008 6:12pm
Clayton E. Cramer (mail) (www):

The solution is simple: just take a bunch of crappy pictures. Use the proper exposure, and lighting, but catch the least favorable aspects of the people and event. Tell the folks before hand that as an artist you doubt your creativity will flow freely, but you will do the best you can to capture what you see as the essence of the event.
That won't work. You will be sued again for discrimination, because you clearly didn't do your best work, and the homofascists will demand that you be sent to re-education camp. Perhaps they will find the electroshock machines that used to be used to "cure" homosexuals, and find a new use for them. Since homosexuals have already expressed their desire to send former homosexuals to concentration camps, this would be entirely consistent.
4.9.2008 6:13pm
David M. Nieporent (www):
Frankly, I think photographs are so uniquely expressive that they are entitled to the full panoply of First Amendment protections and that the First Amendment should trump New Mexico law. But what about the florist?
Well, one distinction is that the content of the art (in this case, the floral arrangement) is not being dictated -- only who the service is being provided for. But with the photographer, the content of the art -- i.e., the photographs -- is being dictated.
4.9.2008 6:14pm
astrangerwithcandy (mail):
josephslater-

isn't what you are proposing as your interpretation of the law basically a limitation of my rights to the benefit of someone else's rights? (you don't expect a court to return a verdict in favor of plaintiff if a white guy was denied services by a black business?)
4.9.2008 6:16pm
Uh_Clem (mail):
The solution is simple: just take a bunch of crappy pictures. Use the proper exposure, and lighting, but catch the least favorable aspects of the people and event.

By analogy, all Denny's has to do is explain to their potential black clientelle that they should expect rude service, unappetizing food, and an overall miserable experience should they decide to dine there.

A modest proposal?
4.9.2008 6:20pm
wooga:
Really? Even Wedding photographs? My take is that wadding photos are basically a commodity, like the flowers, the catering, the musicians, the limo, and all the other trappings of the wedding industry. They might want you to think of them as artists, but really it's just a commodity

Let me guess, you are a bachelor, right? Selection of a quality photographer for the wedding, just like picking the best florist, is extremely important. Those were the two things my wife refused to cut any corners on. Good professional photographers are definitely artists, and their photos are more expressive than most articles (picture = 1000 words).
4.9.2008 6:21pm
Uh_Clem (mail):
...the homofascists will demand that you be sent to re-education camp.

And the hits just keep on coming....
4.9.2008 6:22pm
JosephSlater (mail):
astrangerwithcandy:

First, generally, much as you and EIDE want to credit me with creating the law or giving "my interpretation of it," I'm just explaining what the law actually is.

And *every* law balances the legal ability of various parties to do certain things. So sure, Title VII simultaneously (i) protects the rights of certain groups to be treated equally in the workplace, without regard to, say, their race; and (ii) limits the rights of employers to discriminate on the basis of race.

And yes, I do expect courts to return verdicts in favor of white plaintiffs claiming discrimination by blacks. Courts have in fact done so.

Clayton:

Your bizarrely over-the-top references to fascism, re-education camps, homsexuals controlling the government, etc., just make you look unserious -- again, like a parody of yourself.
4.9.2008 6:23pm
Uh_Clem (mail):
Let me guess, you are a bachelor, right?

No, just someone who used to work at a lot of weddings, and is rather jaded about the whole industry.

Every wedding photo I've ever seen looks exactly like every other wedding photo. Even the gay weddings.

Selection of a quality photographer for the wedding, just like picking the best florist, is extremely important.

As I said to my mother-in-law to be: "Yes, ma'am, if you say so."


The best analogy I can think of from a first amendment perspective is the restaurant who's waitstaff sings "Happy Birthday" to the customers. Yes, singing is protected by the first ammendment, but that doesn't mean that they can refuse to sing to the Jewish boy (for instance) when they'll gladly sing for everyone else.
4.9.2008 6:32pm
A.C.:
I'll take it as given that the state has taken it upon itself to extend anti-discrimination law to cover this case. But it's silly. There's just no comparison with the laws that were put in place to dismantle Jim Crow. There used to be a time when black Americans -- citizens, possibly even veterans -- who wanted to travel in certain places had to sleep in their cars and bring their own food. That's vile, and breaking up that kind of social norm seems like a good idea. It might even be considered inportant enough to justify some rather heavy-handed tactics, and those were employed. To mostly good effect, in my opinion.

But that doesn't mean the same reasoning applies to every kind of random, haphazard bigotry in society. Is there any lack of photographers who will agree to photograph same-sex ceremonies? Do women have trouble renting hotel rooms and buying lunch? No, not really. Not every "protected class" faces the same hurdles, and legislative approaches lifted from one situation will look absurd when plunked down in another. Like here, for example.

Note that I am a strong supporter of same-sex civil unions, and I was pleased to attend my first legal same-sex wedding (in Massachusetts) last year. The couple in question had no trouble finding people who were happy to sell them stuff, I might add. This is developing into a real market niche, and businesses that want to sell to gay and lesbian couples can do well.
4.9.2008 6:34pm
Clayton E. Cramer (mail) (www):

Clayton:

Your bizarrely over-the-top references to fascism, re-education camps, homsexuals controlling the government, etc., just make you look unserious -- again, like a parody of yourself.
Except that the link was to a gay columnist arguing for a very fascist response to those who don't share his views.
4.9.2008 6:51pm
Clayton E. Cramer (mail) (www):

I'll take it as given that the state has taken it upon itself to extend anti-discrimination law to cover this case. But it's silly. There's just no comparison with the laws that were put in place to dismantle Jim Crow. There used to be a time when black Americans -- citizens, possibly even veterans -- who wanted to travel in certain places had to sleep in their cars and bring their own food.
Someone I went to church with California experienced exactly that in the 1950s in our county. He couldn't rent a hotel room.


That's vile, and breaking up that kind of social norm seems like a good idea. It might even be considered inportant enough to justify some rather heavy-handed tactics, and those were employed. To mostly good effect, in my opinion.
Agreed. And because so much discrimination against blacks was not just tolerated by the government, but either encouraged or required, I can see some merit to antidiscrimination laws, at least for a few decades, to break that pattern.


But that doesn't mean the same reasoning applies to every kind of random, haphazard bigotry in society. Is there any lack of photographers who will agree to photograph same-sex ceremonies? Do women have trouble renting hotel rooms and buying lunch? No, not really. Not every "protected class" faces the same hurdles, and legislative approaches lifted from one situation will look absurd when plunked down in another. Like here, for example.
I understand that as late as 1970, a woman trying to rent a car at a airport in California would have a heck of time doing so, because rental cars were for business travelers--and what woman was a business traveler back then?

But your point is correct. Women weren't feared and hated; the system was set up based on assumptions about men's roles and women's roles.

The fact of the matter is that any gay person who goes into a restaurant or a hotel and was discriminated against because of their sexual orientation was probably doing something to call attention to it. Most gay men aren't effeminate, and even for those who are, it is obviously an affectation.
4.9.2008 6:57pm
astrangerwithcandy (mail):
to be extremely snarky...I never credited you with creating anything, but you do interpret the law. How else do you know what a particular statute or case law means? osmosis? or did your comments refer verbatim to case law and statutes?


somehow the right to sexual preference trumps the defendant's right to religious preference?
4.9.2008 6:58pm
Clayton E. Cramer (mail) (www):

The couple in question had no trouble finding people who were happy to sell them stuff, I might add. This is developing into a real market niche, and businesses that want to sell to gay and lesbian couples can do well.
The reason for these suits, such as the one against the church in New Jersey, isn't because they are having problems finding what they need in a free market. It is that homofascists won't be content until everyone shuts up and pretends to approve. I don't care if you approve of me or not. But then again, I don't have a serious emotional problem that requires constant approval to make me happy.
4.9.2008 6:59pm
markm (mail):
Is this more analogous to requiring a restaurant to serve blacks, or requiring it to serve soul food? I lean toward the latter view, because the participants in the ceremony become part of the photographer's work.

Someone else asked about the floral arranger. That's artistic work, but I don't see it as likely that it will change depending on the race or gender of the people being married, nor does the arranger need to stay for the ceremony. OTOH, would you require a fundamentalist Christian floral arranger to learn and follow different styles for Jewish or Wiccan weddings?

And finally, why would anyone want someone fundamentally opposed to their commitment ceremony to be playing an important role in it? That seems like just asking for poor work. To return to the example of the chef, even if I could legally compel a New Orleans chef specializing in Cajun-style cooking to cook in the bland Yankee style I prefer, I wouldn't want to eat the results - under that kind of conditions, he'd probably screw up even Kraft macaroni and cheese!
4.9.2008 7:00pm
Michael B (mail):
The opinion of most is that race is not analogous to homosexuality in the manner suggested in this thread by some commenters. Not that others should be allowed to have their own opinions once the elect has decided upon what is right ...

And while I've yet to hear of reeducation "camps" in the U.S., reeducation programs have in fact been instituted on campuses, in govt. and elsewhere, e.g. College Mind Police Live to Brainwash Another Day, aka Fear & Coercion Lite. Excerpt, emphases added:

""The treatment" was also mandatory and punitive. Students were required to attend training sessions, group floor meetings, and one-on-one meetings with their Resident Advisers (RAs), who, having been coached in interrogating vulnerable freshmen, plied them with invasive questions. ...

"... [the U.D. Faculty Senate] registered no outrage at a systemic thought-control process that mocks students' constitutional right to freedom of conscience and expression ...

"... Moreover, the same Gestapo-like Residence Life administrators, who ought to have been summarily fired, will continue to administer it, albeit with annual faculty oversight.

"One of Fox's lamer, not to mention damning, excuses for the U.D. "treatment" is that "Every university has such programs available for students." Thus he inadvertently raises an important, larger question, the extent of programs such as the one at U.D. on other campuses."

Iow, it may reflect fascism-lite or totalitarian-lite, but it's most certainly coercion applied to the conscience and to freedom of expression.
4.9.2008 7:13pm
Joe Bingham (mail):
To me, there is a huge difference between offering a service for hire (i.e. photograhing an event, such as a wedding, a conference, a bar mitzva, etc.) and expresing myself as an artist, and then selling my art. I have no doubt that the latter is protected speech, but I don't see the former as speech.

Commissioned speech isn't protected speech? I think that's what you just said.
4.9.2008 7:30pm
Joe Bingham (mail):
To me, there is a huge difference between offering a service for hire (i.e. photograhing an event, such as a wedding, a conference, a bar mitzva, etc.) and expresing myself as an artist, and then selling my art. I have no doubt that the latter is protected speech, but I don't see the former as speech.

What about, say, working as a journalist. Since you're offering a service (writing) for hire, it isn't speech?
4.9.2008 7:31pm
donaldk2 (mail):
It seems clear that as to photographers, the refusal to deal with homosexuals is tantamount to refusing to deal with blacks and is clearly illegal.
That said, I find the post of Clayton Cramer expresses my exact feelings in the matter.
It occurs to me to ask, suppose the photographer had said
"I don't do weddings, they are too much trouble." And if response is "But you did no-and-so's", rhe reply might be
"Well, I have given it up."

I suspect that here, it is not unlikely the case,that the prospective client was pulling the photographer's chain, expected the response she got, and made the complaint as vengeance. $6,600 is serious punishment for a simple matter like this. This isn't pertinent to the case, of course, but comes under the Cramer syndrome.

Also, I am curious to know, what happens if, in order to avoid this expensive tribunal, you simply admitted your "guilt"?
4.9.2008 7:40pm
Joe Bingham (mail):
nvm, EV already pwned you in a full post and I didn't get to it yet.
4.9.2008 7:51pm
Clayton E. Cramer (mail) (www):
somehow the right to sexual preference trumps the defendant's right to religious preference?
Well of course. One is arguably protected under the First Amendment's protection of freedom of religion; the other is an invention of judges, so it isn't difficult to see which takes precedence.

I am beginning to think there's some merit to forcing them back into the closet. At least at that point they won't have the power to force others into the closet.
4.9.2008 8:00pm
q:

They might want you to think of them as artists, but really it's just a commodity.

So, I don't see this as a first ammendment issue at all. It's just a public accommodations issue, assuming that hiring a wedding photographer is a public accomodation.

I don't see why an expressive commodity wouldn't get first amendment protection. Newspapers are commodities for the most part.

Also, whether or not you think it is a commodity doesn't really matter. Wedding photographers vary quite widely in price, so it's fairly obvious they aren't commodities.

And though this instance could be analogized to Denny's refusing to serve Blacks, such an analogy misses the expressive content of photography. The artistic chef analogy is inapt, for the chef is not being discriminatory in what he chooses to express but only who he chooses to give such expressions.
4.9.2008 8:42pm
Jon Rowe (mail) (www):
It seems silly to even analogize what any "group" has suffered v. any other group, because each circumstance is unique. Women had no problem getting served in the restaurants that blacks wouldn't be served in. But it does not follow that therefore there was no discrimination against women.

You'd have to be utterly ignorant of history to not conclude that homosexuals suffered horribly at the hands of government and society -- from felony sodomy laws to reputation ruining to involuntary commitment to mental institutions to being banned from government jobs!, and on and on. If your standard for antidiscrimination laws is discrimination and mistreatment by, among others, government, then no rational person with an elementary awareness of history would conclude that gays don't meet such a standard.
4.9.2008 9:40pm
Bob Goodman (mail) (www):
As a practical matter, who would want to hire a photographer who didn't want to photograph your wedding? I'd want someone who would light me in a flattering way, who'd do a great job because she wanted to do a great job. If this photographer resents that the law forces her to take the job, how good are the pictures going to be?
Because I think the point was to rub the photographer's nose in it. It was not to make the photographee to feel better, but to make the photographer feel worse.
4.9.2008 10:45pm
scott (mail):
I'm sorry but what if someone wanted the photographer to shoot bestiality? Would she have the right to refuse that based on her morals and ethics? What if they wanted her to shoot child pornography? Does she have a right to refuse to do that? What if a same sex couple wanted her to shoot them having sex? Does she have the right to refuse that?

The answer to all of the above are yes, she can refuse it because 2 are illegal. This is about giving gays preferential treatment. I'm sorry but there are ALOT of people that have moral objections to homosexuals and that is their RIGHT. Being gay is not a right. This should have never made it to court. I as a businessman have the right to refuse services to ANYONE whether it's based on just a personal objection or whatever reason. This is entirely a bunch of crap.
4.9.2008 11:18pm
Michael B (mail):
Jon Rowe,

You're advancing a strawman and a fabulism. (And are doing so under the pretext of a "rational person" appeal.)

1) No one has suggested that some forms of discrimination don't need to be guarded against and receive the protection of the law.

2) No one is suggesting that anyone, whether homosexuals or other groups, be committed to mental institutions or that other egregious forms of descrimination be tolerated.

In summary, "no rational person with an elementary awareness of history," of basic Constitutional tenets, of the Left's long and mendacious march through the institutions, of strawman hyperbole such as your own, etc. would conclude that a wedding photographer's decisions, whether for reasons related to conscience or taste or otherwise, is tantamount to banning some group from govt. jobs or committing them to mental institutions.

Every law on the books has moral/ethical considerations and import. Likewise, every law on the books is forwarded with the intention of navigating a slippery slope of one kind or another. We don't legislate abstractions and we don't legislate in a one-size-fits-all manner. (If we do, in the latter case, it's at least a yellow-flag indicator.)

I.e. some forms of discrimination need to be codified into the law and subjected to enforcement mechanisms and other forms do not; your appeal is not to a "rational person," it's an irrational appeal which leverages strawman arguments and hyperbole as if they have real-world merit.

They don't.
4.9.2008 11:33pm
Jim Rhoads (mail):
How about the organist, trumpeter, string quartet or soprano who might supply the music for the nuptials?
4.9.2008 11:40pm
Jon Rowe (mail) (www):
I think you've utterly misunderstood my position. Read it very carefully. I didn't mention that I am a libertarian who does not believe in antidiscrimination laws applying to the private sector and NOTHING in my post contradicts this position.

Rather I was replying to the sentiment seen in the above comments that somehow blacks, women and other groups have really been the victims of mistreatment by government and society (i.e., discrimination) whereas homosexual have not. The premise (a very disagreeable one) is that past governmental and societal mistreatment merits present day antidiscrimination laws applying in the private sector.

I am struck by the level of historical ignorance when seemingly intelligent folks (even those with history degrees!) write as though other groups really have been the victims of past mistreatment but homosexuals have not. It's simply a false proposition. Case closed.
4.9.2008 11:46pm
Notalawyer:
Imagine this scenario. X goes to Y and says I'd like you to photograph my wedding to Z for n$ at the beach at sunset. Y says, no I'm not free that day or no I can't do it for that amount or no I don't do beaches or sunsets, too much set up time and too hard to get good shots so I can't guarantee my work.

X says but you're the best in town and it's important to me that people know that you're my photographer because it's important to me that people know that I get the best. I and Z are a major couple in the same sex community and this is an important wedding.

Y says sorry but you'll have to find someone else.
X says you're discriminating against me and Z because we're same sex. That's against the law. If you don't do my wedding I'll take you to court and in this state you'll lose.
4.10.2008 12:01am
Jon Rowe (mail) (www):
Notalawyer:

Based on the facts you laid out it seems X has a losing lawsuit because the same-sex issue was NOT the reason why Y refused.

I think you are on to something in terms of the unintended consequence of antidiscrimination lawsuits (individuals from protected minority groups are likely to bring lawsuits when no such discrimination occurred); but such logic applies to all antidiscrimination categories, i.e., a black person gets fired for job performance issues but sues based on race-discrimination.
4.10.2008 12:15am
Michael B (mail):
J. Rowe, I was responding to your equivocal and overarching language and the implications stemming from that language, not your beliefs, whether declared or undeclared.
4.10.2008 12:32am
EIDE_Interface (mail):
Bottom line is you allow freedom of association and all this stuff sorts itself out naturally. The opposite is what we have now which is the Soviet Socialist States of Aemrica, or Nazi America. Zig Heil to the Homofacists.
4.10.2008 12:37am
Notalawyer:
"Based on the facts you laid out it seems X has a losing lawsuit because the same-sex issue was NOT the reason why Y refused."


Yes, but X can claim that the same sex issue WAS the reason for the refusal and Y can't prove that it wasn't. None of these conversations were recorded. X trumps Y because X is more privileged before the law than Y.
4.10.2008 12:44am
Jon Rowe (mail) (www):
Michael B:

Perhaps I could have chosen my words more carefully, but in my two posts I made clear what I meant and there was nothing "equivocal and overarching" about the language: It is historically false to suggest that Blacks and women have suffered real mistreatment by government and society whereas homosexuals have not. Felony sodomy laws, reputation ruining leading to suicides, involuntary commitment to mental institutions and being banned from government jobs are real historical events like Jim Crow and women being denied the right to vote. Alan Turing, Frank Kameny and Oscar Wilde are real historical figures.

The "implications" of my language were simply things you read into my post, and it was quite an uncharitable reading to say the least.
4.10.2008 12:52am
Jon Rowe (mail) (www):
Yes, but X can claim that the same sex issue WAS the reason for the refusal and Y can't prove that it wasn't. None of these conversations were recorded. X trumps Y because X is more privileged before the law than Y.

You are showing why you are "not a lawyer." If you were you would know that PLAINTIFFS always have the burden of proof.

And the way the antidiscrimination codes are written, they do NOT, in theory, privilege minority groups; whites take their rights equally with blacks, men with women, and straights with gays under the rubrics of "race," "gender" and "sexual orientation." Though they don't always work out that way in practice. But if I were on the bench, they would.
4.10.2008 12:56am
Notalawyer:
And the way the antidiscrimination codes are written, they do NOT, in theory, privilege minority groups; whites take their rights equally with blacks, men with women, and straights with gays under the rubrics of "race

So why then was this photographer told by the court that she had to pay $6000 in fines (costs) because she didn't want to photograph this other woman's wedding?
4.10.2008 1:53am
Michael B (mail):
J. Rowe,

Again, no one suggested any and all forms of discrimination and treatment should be allowed, nor that abusive historical forms did not exist. It's a red herring and serves to suggest 1) no moral considerations are to be allowed (which itself is a moral argument) and 2) that the particularly pernicious forms of descrimination that some have experienced - most notably blacks - is broadly analogous to homosexuals and the homosexual lobby. In purely abstract terms that case can be made, but the law does not concern itself with pure abstractions, the law concerns itself with moral/ethical issues and with navigating those issues to the extent they warrant codification and enforcement in the first place.
4.10.2008 2:02am
My two cents:
Unlike lemonade, which is consumed and never again sees the light of day as lemonade, art, including photography, is durable and more-or-less permanently associated with the artist. In order to preserve, establish, or strengthen their "brand" (in themselves) an artist may not wish to be associated with any number of things (as it can be seen to damage the value of their entire body of work, and the value of their future work). For example, if "the Klan" somehow got recognized as a religion, and wanted a photographer who specialized in civil rights releated photography to take some "pro-Klan" pictures, it would seem, intuitively anyway, that he would be within his rights to refuse due to the likely economic injury he would sustain.

Just my two cents.
4.10.2008 2:09am
The General:
So under this law, if you're a civil rights attorney, and these lesbians come into your office and ask you to take their case against Elaine Photography, but you believe that homosexuality is wrong and immoral, and you refuse the case because you don't want to, in any way, help promote the cause of homosexual marriage, you're in violation of the law and the state can make you take the case anyway?
4.10.2008 2:29am
Notalawyer:
I understand that this is not a precise synopsis of the case at hand

"So why then was this photographer told by the court that she had to pay $6000 in fines (costs) because she didn't want to photograph this other woman's wedding?"

but really, how can it be possible that the government can force a photographer to take a job she doesn't want because some one else has decided that doing so is "discrimination."

I like discrimination. I do it all the time and I will never stop. So shoot me.
4.10.2008 2:50am
Notalawyer:
Typo, it should be

to take a job she doesn't want because some one else has decided that NOT doing so is "discrimination."
4.10.2008 3:03am
A.C.:
Jon Rowe -

It's clear that gays and lesbians have suffered the kind of oppression you describe, but what's missing in your argument is a link to the photographer situation. The solution in the case of gays and lesbians was to stop committing them to mental institutions, stop firing them from government jobs, and so on. Giving gay and lesbian partnerships some sort of legal protection and encouragement, for example if a couple buys a house or makes other commitments jointly, is the next stage. I'm all for these changes.

But the specific forms of discrimination are different for different groups. The public accommodation problem is fairly specific to racial minorities that can be identified by sight. And the reasoning used in the anti-discrimination cases regarding public accommodation doesn't really apply the same way to other groups that can't be identified in a normal business transaction, or that never faced those particular problems in the first place.

Anti-discrimination laws should not be seen as an all-purpose form of reparations for past injustices. They should be tailored to getting rid of the specific injustices that have occurred.

As for the creation of "privileged" groups that can holler discrimination every time something doesn't go their way, it's a legitimate problem. I doubt that false claims of racism or sexism win in court as often as some people fear, but a lot of employers, landlords and so on will cave in just to avoid going to court in the first place. And some will refrain from applying even ordinary penalties and discipline for bad behavior, which creates a class of employees or tenants who don't have to follow the rules that everyone else does. This is not a good situation.

All the more reason to be VERY careful to distinguish between real, harmful discrimination and the kinds of idiots who just blow a lot of smoke. Both situations exist, and learning to tell the difference is the kind of discrimination we actually need.
4.10.2008 9:39am
Jon Rowe (mail) (www):
"[N]o one suggested any and all forms of discrimination and treatment should be allowed, nor that abusive historical forms did not exist."

A few folks on these threads, at least one, did allude to the fact that "abusive historical forms" did not exist against homosexuals. And in carefully reading and watching these debates, I've more than few times seen antigay folks try to pass that one off -- that blacks, women, and many other social groups currently receiving antidiscrimination protection really did suffer past injustices whereas homosexuals have not.
4.10.2008 11:01am
Jon Rowe (mail) (www):
AC,

I agree with you. I am generally against these antidiscrimination statutes applying in the private sector, especially against small businesses and individuals. There are more than enough photographers willing to take pictures of a gay wedding. If you go to a gay bar and look at the ads there or open up a gay publication you see tons of ads from businesses of all sort desperately seeking the gay market. It's only when private companies have a monopoly that antidiscrimination laws need to make sure they provide equal service to everyone.
4.10.2008 11:06am
SteveW:
I am surprised that there are no cases discussing whether or not a photography or similar business is a public accommodation for purposes of the federal anti-discrimination laws.
4.10.2008 11:17am
Yenko:
I have two questions:

1) Whose rights were violated when the photographer refused to take the photographs?

2) Whose rights were violated when the photographer was forced to pay a fine for exercising her right NOT to do something she didn't want to do, an action that harmed no one?

To help answer this question, I offer the following hypothetical situation:

You interview for a job with Company A. Company A has a policy prohibiting discrimination based on sexual orientation. Company A offers you a job, but you decline because you don't wish to work at a place that hires gay people.

Are you in violation of the law? Are you violating the rights of the company by refusing to work there? Would it be a violation of your rights if the law were to force you to work there against your wishes?
4.10.2008 12:11pm
Lucie Courtemanche (mail):
When, in this country, did private business owners give up their religious freedoms, and the right to decide what conflicts with the religious beliefs? Would any other religious denomination other than Christian be forced to pay a fine because photographing a same-sex wedding violated their religious convictions to do so?
Would someone of the Muslim or Jewish faiths be penalized if they refused to do what this photographer is being persecuted for doing?
4.10.2008 1:49pm
Yenko:
Unfortunately, Lucie, the prevailing viewpoint in this country is that business owners have no freedom. For some reason, when someone starts a business, they are presumed to have given up the rights they enjoyed as humans. They become one of the evil capitalists who wage continuous war upon hapless workers and consumers. It is therefore necessary to control their behavior through regulation and legislation to ensure that they are unable to prey upon the needs or desires of others. They must be subservient to the whims of government, lest they enjoy an inequitable amount of success on the backs of the rest of us.
4.10.2008 2:56pm
Loud Mouth Broad (mail):
Here's the thing folks. Elane Photography chooses to do business in New Mexico, therefore they much abide by New Mexico law. Sexual orientation is just as much a protected class as race, gender, religious affiliation, etc. To be fair, all Elaine had to do was to offer the ladies a copy of her rate schedule. If they were still interested, she could have declined with any reason as long as it was not discriminatory. I'm washing my hair, I'm already booked, I don't travel outside, etc. It's as simple as that. If the ladies had refused to hire Elane because she is a Christian, the tables could have easily been turned and MOST of you would be screaming from the rooftops about how ELANE was discrimated against. Wah Wah Wah

I just don't understand what everyone is defending here. Elane Photography owner(s) are wrong as far as NEW MEXICO law is concerned. You can yell, scream, stomp, throw yourself on the floor and hold your breath until you turn blue and this will still be the truth. So suck it up! You "conservatives" as whining so much that people are going to confuse you with liberals.
4.10.2008 8:30pm
Lily (mail):
I hate what my country is becoming.
4.10.2008 10:42pm
Yenko:
So, LMB, as long as you lie about your reasons for not wanting to work for someone you're safe, is that it? How sad that we've sunk to demanding that we be dishonest with each other, rather than just respecting each others' opinions. How about we all grow up?

And it works both ways. The ladies have just as much right to not hire a Christian photographer as the photographer has to not work for gay clients. The fact that one party in the transaction is subject to laws that the other party is not doesn't make it right. It's the law that's wrong, and it would be just as wrong if it were the other way around.
4.10.2008 10:42pm
David M. Nieporent (www):
Here's the thing folks. Elane Photography chooses to do business in New Mexico, therefore they much abide by New Mexico law.
Here's the thing, LMB: New Mexico chooses to be part of the United States; therefore it must abide by the U.S. Constitution.
4.11.2008 11:11am
Rich Rostrom (mail):
One obvious point. A restaurant or a store is a public space. The public comes there. A wedding is a private space. There is a very great difference between having access to public space and requiring the presence of others in a private space.

This case was never about invidious discrimination. It's about a favored group demanding approval. It's not as though there aren't other photographers available. So why go to all the trouble of suing this woman? To punish her for disapproving. No one is allowed to disapprove, even by silent inaction. Thoughtcrime, in effect.

Would the NMHRC have fined Mrs. Huguenin for refusing to photograph a biker wedding? Or an S&M wedding? Or an Aryan Nation wedding? If she was a pacifist, and refused to photograph a service wedding? Would they fine a vegan interior decorator for refusing to do the trophy-laden home of an avid hunter?
4.12.2008 1:20am
jennifer rose (mail) (www):
4.12.2008 3:31am
Yenko:
I agree with you, Rich, vis-a-vis the punishment of thoughtcrime.

I must disagree, though, with the distinction between restaurants and stores being "public spaces". They are both privately owned establishments, and they have just as much right to refuse service as do individuals to refuse entry to a wedding. In my view, there is no difference. In either case, forcing a private owner to allow entry to someone against their wishes is a violation of property rights.
4.12.2008 10:22am
Kinderling (www):
When has a Civil Union become a Wedding? Legally they are not the same.
A United States citizen who is married can sponsor his or her non-American spouse for immigration into this country. Those with Civil Unions have no such privilege.

So if I advertise I photo weddings, I photo weddings.
Where's the problem?
4.13.2008 1:38pm
Kristopher (mail) (www):
I think she is screwed under the law ... but I also beleive the law is wrong. Freedom to associate includes freedom to not.

In the future, I would suggest warning the customer that this is something I would rather not do ... and then get paid up front and do a half-*ssed job of it.

If they complain about the out of focus shots, and the cut off heads, suggest to them that they tell all their friends how bad a photographer she is.
4.14.2008 1:28pm