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First Amendment and Photography/Writing/Publishing/Book Distribution for Money:

A commenter writes, about the photographer case,

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.

The case is about art that is sold in commerce -- just as newspapers are sold in commerce, paintings are sold in commerce (whether to the person who commissioned them or to a museum), books are sold in commerce, and the like. And because photography is a medium of communication and of expression of ideas (unlike lemonade sales), the First Amendment is implicated (and, in my view, violated). Just as a bookstore may choose to sell only black-authored books, or refuse to sell Christian-themed books, so it seems to me that a photographer should

This also responds, I think, to comments such as "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." Bookstores also offer to perform services, both to buyers and to publishers and authors; but they may choose what books to stock. Yet it doesn't follow that they may be denied their freedom to choose which speech to distribute.

Likewise, let me repeat the hypothetical I posed in my earlier post, which I think people didn't much respond to. Say you're a freelance writer, who holds himself out as a business offering to perform a service. Someone tries to hire you to write materials -- press releases, Web site materials, and the like -- for his same-sex marriage planning company, or his Scientology book distribution company, or whatever else.

May the government force you, on pain of damages liability, to write those materials, even if you would prefer not to because of the sexual orientation, religion, or whatever else to which the materials would be related? Or do you have a First Amendment right to choose which words you write and which you decline to write? If you do have such a right, why shouldn't Elaine Huguenin have the same right as a photographer?

HipposGoBerserk (mail):
I'm going to have to go read the other comment string, but this is self-evident. I cannot even concoct an argument for getting past the free speach issue that passes the red-face test.
4.9.2008 4:17pm
Pyrrhus (mail) (www):

May the government force you, on pain of damages liability, to write those materials, even if you would prefer not to because of the sexual orientation, religion, or whatever else to which the materials would be related? Or do you have a First Amendment right to choose which words you write and which you decline to write? If you do have such a right, why shouldn't Elaine Huguenin have the same right as a photographer?


Well I would prefer a freedom of action right to choose not to do these things. A freedom of speech right may have to suffice in this society though.
4.9.2008 4:17pm
EIDE_Interface (mail):
Since it's been established that businesses do not have freedom of association, the photographer doesn't really have a legal leg to stand on. She has either 2 options:

1. Grin and bear it
2. Move somewhere where there's no possibility of coming into contact with people she wouldn't want to do business with.
4.9.2008 4:19pm
dcuser (mail):
There may be a legitimate question about whether wedding photographs (at least plain vanilla ones) are really expressive. Is the photographer any different from the flower arranger? (They both make visual compositions.) Or the wedding-cake maker?

Does the amount of creative content matter? Would that mean that the videographer is engaging in First Amendment activity, but not the guy at the copying store who just copies the tape afterwards?

Does it matter that the photographer's expressive materials, which she's supposed to arrange in an aesthetically pleasing way, are the very things (the two people) that make up the same-sex union she's opposed to? (Maybe the analogy would be if you forced the cake baker to put two male figurines on the cake, instead of one male and one female.) In that case, the photographer would have First Amendment rights at stake, but not the musicians who are hired to play at the ceremony. (But maybe the band leader for the reception is in a different boat, since he's supposed to say things about the particular couple.)
4.9.2008 4:21pm
CDU (mail) (www):
Since it's been established that businesses do not have freedom of association, the photographer doesn't really have a legal leg to stand on.


Eugene doesn't even mention freedom of association in his post, he's arguing for her rights on free speech grounds. How is freedom of association even relevant to the argument he's making?
4.9.2008 4:25pm
The Unbeliever (mail):
bq. May the government force you, on pain of damages liability, to write those materials

It would be funny to see them try. "Freelance writers" can get rather snarky when annoyed, especially if we're using the term to refer to bloggers.

What happens if you turn in poor work as a result, and offer to return the full monetary compensation if the client is dissatisfied? I suppose there would be a bad faith claim to be made, but if an artist lost a suit and was forced to perform such services, I would think that gives an excellent excuse in the sense of "interferring with the artistic process".
4.9.2008 4:26pm
EIDE_Interface (mail):
CDU - because Eugene's fundamentally mistaken to invoke the 1st amendment here. 1st amendment has to do with our freedom of speech not being suppressed by the government. This is not a speech case, but an association case. I know it's not directly on-topic to his post, but I think it's FAR more relevant.
4.9.2008 4:30pm
EKGlen (mail):
Wedding photography is to photography what house painting is to painting.
4.9.2008 4:30pm
EIDE_Interface (mail):

EKGlen (mail):
Wedding photography is to photography what house painting is to painting.


Irrelevant. She has freedom of association. Whether or not her photography constitutes art is a philosophical discussion which should have no bearing on the legal question.
4.9.2008 4:31pm
bobolinq (mail):
Why is photography any more expressive than making lemonade?

Let's take another example: House painting. Say I'm a really fantastic house painter specializing in Victorian "gingerbread" houses. I take intense pride in my work; I am incredibly meticulous; I studied fine art; I select colors based on my knowledge of Josef Albers's theories of color. People who see houses I have painted say, "Wow! That's a real work of art!"

Now suppose Tammy wants to hire me to paint her house next week, and I am not already booked. I go to Tammy's house to do an estimate. I take some measurements, go home, and work up a bid. I show up at Tammy's house the next day to discuss the bid, and out walks Tammy's lover Ellen wearing a "Dykes on Bikes" t-shirt. "Oh, that's how it is," I say. "I'm sorry, I can't paint your house. I'm relgiously and personally opposed to your lifestyle. If I painted your house, people would think I am in favor of lesbians, and I can't have that. Gotta go!"

Why is that different from telling someone, "I won't sell lemonade to lesbians"? Is it because I'm such a good house painter that I'm an "artist"? Does that mean that if I were a worse painter, or one with less "artistic" training, I'd be more like a lemonade seller? That doesn't seem right.

So why is Ellen's refusal to photograph a same-sex wedding different from the refusal to sell lemonade or paint a house?
4.9.2008 4:38pm
Wayne Jarvis:

Wedding photography is to photography what house painting is to painting.


Fine. So if you have no First Amendment rights in wedding photography, that means the government can march in and start regulating how wedding photos are taken? In the interest of advancing notion that marriage vows are solemn, the government can prohibit photographers from taking pictures of smiling brides?
4.9.2008 4:39pm
PLR:
Eugene doesn't even mention freedom of association in his post, he's arguing for her rights on free speech grounds. How is freedom of association even relevant to the argument he's making?

There's kind of a stew of rights here, including right of free exercise (shaky in my view - St. Paul condemned homosexuality, but did not indicate whether that policy was to be enforced by all vendors in society rather than just the Church).

But it's more of a cloudy stew for me than a transparent broth, and I don't see an obviously "correct" answer here. Yet.
Whether or not her photography constitutes art is a philosophical discussion which should have no bearing on the legal question.

... of whether it is protected speech. Agreed.
4.9.2008 4:41pm
madisonian (mail):
Say you're a freelance writer, who holds himself out as a business offering to perform a service.

Say I'm a lawyer. I write briefs for my clients. There's a significant element of creativity and style in what I write: how my arguments are crafted; the turns of phrase that I use; etc. Can I announce that I won't represent any black clients and then assert a First Amendment defense to protect myself? Somehow I doubt it.

I'm not sure what the right answer here is, but this strikes me as a rather more difficult problem than EV lets on.
4.9.2008 4:43pm
Caliban Darklock (www):
I think one of the critical aspects of this is that a photographer does not always conduct business on his own premises.

It is one thing to refuse to photograph a couple (any couple, regardless of race, color, creed, or sexual orientation) in one's own studio, when people are normally free to walk in and request a photograph. That is a question of discrimination.

It is quite another thing to refuse photography of such a couple at a location they choose, on the date they choose, amidst company they choose. One would assume such requirements violate the photographer's freedom of assembly.
4.9.2008 4:43pm
Wayne Jarvis:

Why is photography any more expressive than making lemonade?

Let's take another example: House painting. Say I'm a really fantastic house painter specializing in Victorian "gingerbread" houses. I take intense pride in my work; I am incredibly meticulous; I studied fine art; I select colors based on my knowledge of Josef Albers's theories of color. People who see houses I have painted say, "Wow! That's a real work of art!"

Now suppose Tammy wants to hire me to paint her house next week, and I am not already booked. I go to Tammy's house to do an estimate. I take some measurements, go home, and work up a bid. I show up at Tammy's house the next day to discuss the bid, and out walks Tammy's lover Ellen wearing a "Dykes on Bikes" t-shirt. "Oh, that's how it is," I say. "I'm sorry, I can't paint your house. I'm relgiously and personally opposed to your lifestyle. If I painted your house, people would think I am in favor of lesbians, and I can't have that. Gotta go!"


It's about content. Even if the government tells you that you cannot discriminate against lawyers, they cannot tell you that you have to write a jingle for a personal injury firm.

That would be regulating the content of your speech.

In your example, maybe you have to paint the house, but you don't have to paint a lesbian mural on the side of the house.
4.9.2008 4:45pm
EIDE_Interface (mail):
Unless you want to live in the USSR where the Politburo/Stalin gets to decide what is art.
4.9.2008 4:46pm
CDU (mail) (www):
So why is Ellen's refusal to photograph a same-sex wedding different from the refusal to sell lemonade or paint a house?


I think the difference here is the line between the government mandating that a business provide a service without discriminating, and the government mandating the content of expressive conduct. If the lesbian homeowner just wanted her house painted, that has no first amendment implications. If she wanted "Girl on Girl Action Rules!" painted on the side of her house, then that would be forcing the painter to convey a message that he doesn't agree with, with all the free speech implications that go with it.
4.9.2008 4:47pm
Roscoe B. Means:
Wedding photography is to photography what house painting is to painting.
I think that is an absurdly ignorant statement. I worked my way through law school by shooting weddings. There is a huge amount of skill, planning and creative effort that goes into things like capturing the bride just as the sunlight from the clerestory reflects at the proper angle off the wall to illuminate the folds and texture of her dress, and getting the right angle and f/stop for the shot of the ring being placed with the alter flowers arranged correctly in the background in with just the right amount of depth-of-field blur. People who are able to recognize this kind of skill and effort sometimes pay much more for good wedding photography than they do for a gallery oil-painting. I personally spent years learning, and got good enough at it that it did not pay for me to stop until after I made partner in my law firm.
4.9.2008 4:47pm
EIDE_Interface (mail):

Caliban Darklock (www):
I think one of the critical aspects of this is that a photographer does not always conduct business on his own premises.

It is one thing to refuse to photograph a couple (any couple, regardless of race, color, creed, or sexual orientation) in one's own studio, when people are normally free to walk in and request a photograph. That is a question of discrimination.

It is quite another thing to refuse photography of such a couple at a location they choose, on the date they choose, amidst company they choose. One would assume such requirements violate the photographer's freedom of assembly


Of course Mrs. Huguenin's freedom of assembly/association should be violated. It's in the name of "human rights" after all!
4.9.2008 4:48pm
Wayne Jarvis:

Say I'm a lawyer. I write briefs for my clients. There's a significant element of creativity and style in what I write: how my arguments are crafted; the turns of phrase that I use; etc. Can I announce that I won't represent any black clients and then assert a First Amendment defense to protect myself? Somehow I doubt it.


Content.
4.9.2008 4:49pm
Casual Peruser:
As a conceptual matter, I still don't understand why state anti-discrimination laws generally don't violate the First Amendment's freedom of association--or why we elevate expression over association in the pantheon of First Amendment rights shielded from state intrusion.
4.9.2008 4:49pm
martinned (mail) (www):
L.S.,

There's something being overlooked here. There is, as far as I can see, a distinction between requiring someone (i.e. a specific person) to take these pictures, and requiring her business to do so. From the original post: "The bulk of Elane's work is done by Elaine, though she subcontracts some of the work some of the time." If she doesn't want to do this, let her subcontract to someone who doesn't mind.
4.9.2008 4:50pm
BR (mail):
The good or service being offered in commerce is intellectual property, such as aesthetic photography. It may even bear a copyright. I see more press and speech freedom issues than association.

Compelling a photographer to apply her asethetic skills to an event she finds disgusting or immoral is a lot like compelling Rebecca Aguilar to report favorably on RKBA, or compelling Dustin Hoffman to play Stalin in a motion picture detailing the Katyn Massacre.

I don't agree that the event would be disgusting or immoral, I've attended such events and had the couples of such events at my own wedding. But I know some folks don't appreciate that and that's their, uh, business, or choice not to take the business.
4.9.2008 4:50pm
EIDE_Interface (mail):
Roscoe B. Means:

Like I said earlier, the level of "art" is not relevant. Freedom of association is the only moral question here.
4.9.2008 4:52pm
EIDE_Interface (mail):

martinned (mail) (www):
L.S.,

There's something being overlooked here. There is, as far as I can see, a distinction between requiring someone (i.e. a specific person) to take these pictures, and requiring her business to do so. From the original post: "The bulk of Elane's work is done by Elaine, though she subcontracts some of the work some of the time." If she doesn't want to do this, let her subcontract to someone who doesn't mind.


That's irrelevant at this point. The HRC wants to make an example out of her - a public crucifixion.
4.9.2008 4:53pm
PLR:
There's something being overlooked here. There is, as far as I can see, a distinction between requiring someone (i.e. a specific person) to take these pictures, and requiring her business to do so. From the original post: "The bulk of Elane's work is done by Elaine, though she subcontracts some of the work some of the time." If she doesn't want to do this, let her subcontract to someone who doesn't mind.

That would likely still violate her scruple.
4.9.2008 4:54pm
cathyf:
She has either 2 options:...
Well, it seems to me that she has lots more than 2 options. There is going to the ceremony and carefully taking only pictures where the couple and their friends look bad. Or deleting all of the pictures where people look good. Or just "accidentally" losing the pictures.

My parents have only a few pictures of their wedding that were taken by wedding guests, because their photographer's car was stolen with the film in it and it was never recovered. It seems to me that Elaine was quite gracious in turning the couple down and allowing them to find another photographer, rather than destroying their only chance at those pictures in a way that no one could ever prove wasn't an accident.
4.9.2008 4:56pm
EIDE_Interface (mail):
PLR:

Let freedom ring! America - land of the free and home of the brave. I wonder again why we bothered defeating the Soviet Union to become them.
4.9.2008 4:56pm
The Unbeliever (mail):
Why is that different from telling someone, "I won't sell lemonade to lesbians"? Is it because I'm such a good house painter that I'm an "artist"? Does that mean that if I were a worse painter, or one with less "artistic" training, I'd be more like a lemonade seller? That doesn't seem right.


I would think the difference is that the two products are not connected. It's hard to see how serving lemonade to lesbians serves as an endorsement of their lifestyle. But if an artist has a legitimate/documented/good faith (whatever the technical term is, IANAL) religious objection to the institution of same sex marriage, then being forced to provide an artistic representation or enshrinment of exactly that institution can be seen as forcing speech that encompasses something objectionable to the artist.

I suppose you could still argue the question whether photography is expressive art, but this seems to be an absurd distinction given society's past treatment of photography in general as art, not to mention the legal copyright laws protecting photographs themselves. Supposedly taking wedding pictures is less expressive because you're being paid to aim the camera at specific subjects for a specific period of time. But do newspaper columns by freelance journalists stop being protected expressive speech, simply because they sell their words by the column inch subject to a deadline?
4.9.2008 4:59pm
Wayne Jarvis:

If she doesn't want to do this, let her subcontract to someone who doesn't mind.


There is a difference between a subcontractor and an employee. Sending an employee is easy. Lining up a subcontract may not be as simple. Essentially the government would be requiring her to be a broker. How much effort must she put in to hiring a sub? Must she take a loss if all the subs are too expensive?

I have no idea what constitutional implications there are (if any) in requiring a business to serve as a middleman but its seem pretty dumb from a policy standpoint.
4.9.2008 5:00pm
martinned (mail) (www):
L.S.,

@PLR: Yes, but her objection to being in any way involved in this ceremony would merit much less constitutional protection than her objection to taking the pictures herself. (Indeed, the former would be mainly an association issue, not one of free speech, since she wouldn't be required to "say" anything.)
4.9.2008 5:01pm
CPDL:
I wonder if the Commission would have ruled differently if the fact pattern had been reversed--i.e. assume Elaine is a lesbian photographer who refused a customer's request to photograph his church's National Coming Out of Homosexuality Day rally.
4.9.2008 5:05pm
Zacharias (mail):
Of course the libertarian position is that anyone should have the right to refuse service to anyone, regardless of sex, age, race, etc. But then, the libertarian would also not countenance licensing of professionals in law, medicine, teaching, and pharmacy.

As long as the government is controlling those practices, it makes sense that the practitioners, like pharmacists, may not discriminate or refuse to provide morning-after pills.
4.9.2008 5:07pm
martinned (mail) (www):
L.S.,

@Wayne Jarvis: Subcontractor or employee is irrelevant. Other possible constitutional objections aside, there may be cases where a business can be compelled to do business with everyone, member of a protected class or not, and it's up to them to arrange the staffing issues. If a restaurant owner doesn't want to serve blacks, he doesn't have to, but if he's not going to do it himself, he'd better find an employee who will.
4.9.2008 5:08pm
cathyf:
As someone who lives in a 100-year-old house, I have to say that I would absolutely want to know if the painter that I am hiring is bigotted against me. My woodwork would be worth tens of dollars on the salvage market (yes, my house is worth more if I were to tear it down and sell it in pieces than if I were to sell it whole *sigh*). A housepainter/vandal could do orders of magnitude more damage to me than the polite, "Thank you for the offer of business, Mrs. F., but I don't like Catholics and won't paint your house."
4.9.2008 5:10pm
Caliban Darklock (www):
Examining the "content" argument... what about the content of the refusal?

It appears the problem is not that the photographer said "I will not photograph your event", which is entirely her right; it is that she said "I will not photograph your event because you are gay".

From a social standpoint, the photographer SHOULD NOT have expressed any disapproval of the client's event. The photographer should have made a socially acceptable excuse. Just like employers frequently turn down applicants for a receptionist position until a sufficiently young and attractive female applicant arrives. They want a young and attractive female, but they can't say that, so they say something else.

Now, from a realistic standpoint, the photographer should say "I don't photograph gay people" so gay people don't keep coming back and getting the same runaround excuses all the time. It is better for all concerned if the racist/sexist/whatever individual admits to the prejudice.

But we want to pretend that this prejudice does not exist. So we don't let people do that, and we make every available effort to censure those who do it anyway.

Which, in my opinion, is wrongheaded. How many people would have saved time and effort by simply not applying for a job with a prejudiced employer, or not hiring a prejudiced businessman? Why not let the inevitable failure be known in advance, so you can invest your limited time and effort productively?

Given the current social climate, we could go ahead and let people put up a sign that says "no fags" on their business, because it will cost them a lot more than just the potential gay business. I'm not gay, but I am personally offended by refusal to serve customers based on their sexual orientation, so I'll take my business elsewhere.

We could amend the law to say that you may not refuse service to any class of people not specifically identified in publicly posted material. If you turn down black clients, you MUST have a sign that says you don't take black clients. If you won't hire a male applicant, you MUST identify this in your position description. It would make life easier, and let the community take back control over local standards.

Just thinking out loud. Not a perfect solution... but an intriguing idea.
4.9.2008 5:10pm
Snitty:
As much as I'm not a fan of people discriminating against other people for their sexual orientation, I don't think you can compel someone to create art, even in the form of a service, for a third party. The only difference I can see between the freelance writer and the photographer is that the writer needs to at least pretend to agree with the topic in order to write for the magazine, while the photographer just needs to shoot photos.

There was a case out of Mass. in the not too distant past where a divorce attorney refused to take a male client on the grounds that she only represented women in divorce cases. She faced a similar result to Eliane.
4.9.2008 5:11pm
The Unbeliever (mail):
If she doesn't want to do this, let her subcontract to someone who doesn't mind.


Aha, but doesn't this raise the spectre of "separate yet equal"? Suppose Elaine Huguenin is a well-known photographer with a specific reputation. (I assume the existence of differing levels of quality wedding photographers is settled by the varying pricing levels each one can command.) If her studio accepted the contract but sent a lesser subordinate or subcontracted employee of lesser skill, doesn't that make her culpable?
4.9.2008 5:12pm
martinned (mail) (www):
L.S.,

More Christian suffering in today's 3rd circuit ruling in Wilkerson v New Media Technology Charter School.
4.9.2008 5:12pm
Roscoe B. Means:
Rant over, and turning to the substantive question, this regulatory scheme does dictate content. Content is what people are paying for when they hire a wedding photographer. They want the image in reasonable focus, with tasteful framing, and they want certain specific content in the images, conveyed as captured by the special vision of the photographer first, then by his/her camera (e.g., the ring placement, the kiss, the flower and garter tosses, the cake cutting, the dance of bride and father). And one specific item of content that is often pursued like the holy grail of wedding photography is artistic portrayal of feminine/masculine contrast - differences in posture and weight distribution, eye contact with the camera, and skin textures, to name a few.

What strikes me as indefensible, however, is for the State to compel the photographer to shoot a "wedding" that its own laws evidently regard as a sham with no legal effect. She's discriminating based on the legality what gay couples are asking her to photograph, not based on their sexual orientation. I don't think she even has to make it a religious accommodation issue. I think she's entitled make a decision to shoot only weddings that the state law recognizes as lawful, and should be able to refuse to photograph all other "weddings."
4.9.2008 5:12pm
The Unbeliever (mail):
Let me throw another hypothetical out there. If the participants asked her to, could the state force her to photograph a ritual Satanic ceremony where the summoning of demons would take place?
4.9.2008 5:18pm
Wayne Jarvis:

Subcontractor or employee is irrelevant. Other possible constitutional objections aside, there may be cases where a business can be compelled to do business with everyone, member of a protected class or not, and it's up to them to arrange the staffing issues. If a restaurant owner doesn't want to serve blacks, he doesn't have to, but if he's not going to do it himself, he'd better find an employee who will.


This is a strange tangent, but oh well: Requiring a person to enter into a

contract
is different than requiring a business to not discriminate. Saying that there is no difference doesn't make it so.

What are the terms of the contract that you want the government to force upon the photographer? What if she wants an arbitration clause but the sub doesn't? What if she demands that the sub (that she doesn't want in the first place)indemnify her for any liability for the job? Who wins? What if she can't find a sub that is available for the event date?
4.9.2008 5:20pm
martinned (mail) (www):
L.S.,

@Unbeliever: Is it illegal to discriminate against satanists?
4.9.2008 5:21pm
martinned (mail) (www):
L.S.,

@Wayne Jarvis: Why would it be a problem to define the contract? I don't recall ever negotiating with photographers about arbitration clauses, but then again, I'm not married.
4.9.2008 5:23pm
EIDE_Interface (mail):
You can't discriminate against Chtulu worshipers either. This is a great time for paganism!
4.9.2008 5:26pm
CPDL:
@martinned: I haven't checked, but presumably New Mexico's antidiscrimination law precludes discrimination on the basis of religion. Which means that Elaine could run into trouble for refusing to photograph satanists.
4.9.2008 5:27pm
The Unbeliever (mail):
martinned: on the basis of their religion? I think so.
4.9.2008 5:28pm
Kim Scarborough (mail) (www):
It seems to me that since everybody's having to tie themselves in knots distinguishing this from the lemonade example, maybe a better idea would be to go back to the quaint idea that people have the right to trade or not trade with anybody they like, for any reason. Wouldn't that make life easier? Does anybody really think that if we got rid of anti-discrimination laws for businesses, suddenly stores and restaurants everywhere would start putting up "whites only" signs?
4.9.2008 5:29pm
martinned (mail) (www):
L.S.,

@CPDL: I would imagine such plaintiffs would have some difficulty convincing a court that satanism is a legit religion. Usually, courts don't get into this kind of thing, but in this case they might ask the plaintiffs to explain this aspect. If and to the extent that satanism is a legit religion, giving it the same protection as other religions doesn't seem like a problem to me.
4.9.2008 5:29pm
Asher Steinberg (mail):
What strikes me as indefensible, however, is for the State to compel the photographer to shoot a "wedding" that its own laws evidently regard as a sham with no legal effect. She's discriminating based on the legality what gay couples are asking her to photograph, not based on their sexual orientation. I don't think she even has to make it a religious accommodation issue. I think she's entitled make a decision to shoot only weddings that the state law recognizes as lawful, and should be able to refuse to photograph all other "weddings."

This seems like a good argument to me. I'd also say though that, even if NM recognized gay marriages, she wouldn't have to take their pictures, any more than Velazquez, if he were alive today, would have to take on a commission to paint them if he didn't want to for religious reasons.
4.9.2008 5:30pm
CPDL:
@ martinned: What are your thoughts on my own hypo, punishing a lesbian Elaine for refusing to photograph a church's anti-homosexuality rally?
4.9.2008 5:33pm
martinned (mail) (www):
L.S.,

@Kim Scarborough: O, maybe I should have mentioned that. I agree with you completely, although with exceptions for services and goods that can reasonably be considered essential (eg. medicine), and with the proviso that discrimination against certain classes should, in practice turn out to be so pervasive as to substantially burden their ability to obtain certain goods or services, something should be done.

That said, if a state is going to enact an anti-discrimination statute, they'd better protect gays and blacks as well as those poor, downtrodden fundamentalist christians.
4.9.2008 5:34pm
EIDE_Interface (mail):

Kim Scarborough (mail) (www):
It seems to me that since everybody's having to tie themselves in knots distinguishing this from the lemonade example, maybe a better idea would be to go back to the quaint idea that people have the right to trade or not trade with anybody they like, for any reason. Wouldn't that make life easier? Does anybody really think that if we got rid of anti-discrimination laws for businesses, suddenly stores and restaurants everywhere would start putting up "whites only" signs?


Why of course they would! Just ask JosephSlater he has it all covered.
4.9.2008 5:35pm
EIDE_Interface (mail):

CPDL:
@ martinned: What are your thoughts on my own hypo, punishing a lesbian Elaine for refusing to photograph a church's anti-homosexuality rally?


I think we already have the left's moral hypocrisy proven beyond a shadow of a doubt. The only question remaining is America a totalitarian state yet or not.
4.9.2008 5:38pm
The Unbeliever (mail):
If and to the extent that satanism is a legit religion, giving it the same protection as other religions doesn't seem like a problem to me.


But this was exactly the point of my hypothetical! Presumably Huguenin has an undeniably legitimate religious objection to the tenets of Satanism in general, and to the practice of being involved with demon summoning in particular. I would think forcing her to depict, enshrine, glorify, or otherwise create art about the subject would be an explicit violation of Huguenin's rights.

(It's sad I have to say this as a preliminary disclaimer at all, but: I am not comparing homosexuality to Satanism. I merely wanted to make the distinction more stark since some people seem not to want to consider a religious objection to homosexuality very seriously.)
4.9.2008 5:38pm
bobolinq (mail):
To Wayne Jarvis, CDU, The Unbeliever, and everyone else who defends the photographer's refusal on the ground that she shouldn't have to create "content" she doesn't like:

The "content" is being produced for hire, for the client. The "content" of a wedding photograph is the real-world objects and people in the photograph. The photographer is being hired to show up, point a camera at people, and push a button. The photographer then sells either prints or negatives which, nowadays, will be produced by machines (perhaps after manual or automated adjustments). (This is not to say wedding photography is easy; it's not easy at all. But the actual things the photographer does are not "expressive." Creative, sure; technically demanding, absolutely. But not expressive.)

Consider sound reproduction and recording. Say I am in the business of renting public-address systems. Can I refuse to rent my system to the gay-rights rally?

Now say I am a sound engineer who runs public-address systems and mixing boards for large venues. This is hard work; depending on the job, it requires audio-engineering skills similar to the visual-engineering skills photographers have. Can I refuse to operate the PA at the gay-rights rally? I wouldn't think so, even if I am recording the audio (just as a photographer records visual data).

I guess I just don't see why if I offer my services for hire -- as a housepainter, or a photographer, or a sound engineer, or a ditch digger, or even a copyeditor -- I should have a First Amendment free-speech right to discriminate. I don't speak when I dig a ditch for hire; I don't speak when I run a PA system; I don't speak when I take a photograph; heck, I don't even speak when I copyedit a newsletter, I just help someone else speak.

You can (as many of the commenters do) think that everyone should be free to discriminate as they please. But that's not our world. (And perhaps this libertarian attachment to discrimination explains why libertarians are disproportionately white.)
4.9.2008 5:39pm
martinned (mail) (www):
L.S.,

@CPDL: It's good of you to bring that one up, since it's clearly more tricky than the reverse. Off the top of my head, practice in most countries that forbid discrimination (art. 1 in the Dutch constitution) is to separate the desire to discriminate from the religion in such cases, essentially on the basis that it's hardly a religious sentiment. In other words, lesbian Elaine would not be discriminating on the basis of religion in your hypothetical.
4.9.2008 5:42pm
EIDE_Interface (mail):
bobolinq:

You're a willing slave my friend. Sad but true.
4.9.2008 5:45pm
martinned (mail) (www):
L.S.,

@The Unbeliever: We're still talking about her business, right? With that proviso, I don't see your problem, although it does look like you have some pretty colourful ideas about the nature of satanism.
4.9.2008 5:46pm
EIDE_Interface (mail):
martinned:

Well we know that Western Europe is already a totalitarian state. Another reason not to visit.
4.9.2008 5:47pm
CDU (mail) (www):
I don't speak when I dig a ditch for hire; I don't speak when I run a PA system; I don't speak when I take a photograph; heck, I don't even speak when I copyedit a newsletter, I just help someone else speak.


So are publishers just helping someone else speak when the publish a book? Are newspapers just helping someone else speak when they publish letters to the editor? Is Eugene just helping someone else speak when he allows comments on this blog? Do any of these people have the right to decide what kind of message goes out under their imprint, in their paper, or on their blog?
4.9.2008 5:48pm
darelf:

It seems to me that since everybody's having to tie themselves in knots distinguishing this from the lemonade example


No. I think people are tying themselves in knots trying to legitimize such an outrageous comparison.

Just compare it to another art form that is regularly sold as commerce ( you know, apples to apples ): Newspapers. Should the government be able to enforce anti-discrimination laws on the content of op-ed pieces?

If the answer is "no", then Elane is justified in her refusal.

Not complicated at all.
4.9.2008 5:50pm
The Unbeliever (mail):
I guess I just don't see why if I offer my services for hire -- as a housepainter, or a photographer, or a sound engineer, or a ditch digger, or even a copyeditor -- I should have a First Amendment free-speech right to discriminate. I don't speak when I dig a ditch for hire; I don't speak when I run a PA system; I don't speak when I take a photograph; heck, I don't even speak when I copyedit a newsletter, I just help someone else speak.


Personally, I draw the distinction as a software programmer. I view the code I write as a form of art, but the end purpose of that code is not art for its own sake. My customers, i.e. the end users, only care that the code works as promised/advertised and lets them transact business, without being buggy or prone to break down.

Producing photography, painting, sculpture, etc may involve both artistic skill and inartistic mechanical processes, but the end product is meant to be art. Wedding photographers are not meant to merely document the existance of an event or provide a catalog of the attendees; the marriage license and guest registry respectively do those jobs. The photographs produced are meant to provide an asthetic of beauty, and lend a favorable eye on the subjects; otherwise any old crime scene photographer would do.

Of course the above definition is rather moot because the important question is whether the law recognizes photography as art.
4.9.2008 5:50pm
CDU (mail) (www):
Personally, I draw the distinction as a software programmer. I view the code I write as a form of art, but the end purpose of that code is not art for its own sake. My customers, i.e. the end users, only care that the code works as promised/advertised and lets them transact business, without being buggy or prone to break down.


Courts have ruled that computer code is protected as free speech. Remember it doesn't have to be art, it just has to be expressive.
4.9.2008 5:58pm
EKGlen (mail):
All of this talk of "artistic expression" is just nonsense.

It takes as much skill and talent and artistic ability to prepare food and cater for a large group of people as it does to take photographs or write a poem.

But if a caterer said in response to a query "Sorry, I don't cook for black people", I would think that people would correctly recognize that as being an offensive statement and one that quite probably runs afoul of the law as well.
4.9.2008 5:59pm
Kim Scarborough (mail) (www):
bobolinq: Your logic has interesting implications. I offer my services to hire for a company which pays me a salary, but I'm free to leave anytime. Suppose I was looking for work, and a church that refuses to perform gay weddings makes me an offer, and I refuse it because I disagree with their theology (assume that the offer was perfectly acceptable in every other way). By your logic, I'm illegally discriminating against them on the basis of their religion. After all, I don't have a "First Amendment free-speech right to discriminate" when offering my services to hire, right? So presumably I should be legally compelled to accept the job offer and fined if I refuse.
4.9.2008 5:59pm
The Unbeliever (mail):
I know, CDU, and I agree with that decision 100%. As I mentioned, my personal definition of art doesn't matter, the real question is what the law says is protected.
4.9.2008 6:03pm
martinned (mail) (www):
L.S.,

@Kim Scarborough: No, you wouldn't be discriminating based on religion, but based on these people being bigots, which is OK.
4.9.2008 6:04pm
CDU (mail) (www):
It takes as much skill and talent and artistic ability to prepare food and cater for a large group of people as it does to take photographs or write a poem.

But if a caterer said in response to a query "Sorry, I don't cook for black people", I would think that people would correctly recognize that as being an offensive statement and one that quite probably runs afoul of the law as well.


Cooking may be expressive, but the cook in your example is not being forced to change the content of his cooking. If he were asked to decorate a cake with the words "White People Suck" on it, then I think he could clearly refuse and the first amendment would protect him on free speech grounds.
4.9.2008 6:04pm
c.gray (mail):

And perhaps this libertarian attachment to discrimination explains why libertarians are disproportionately white.


The survey you linked to showed that 82% of the "libertarian" respondents were white, compared to 80% of the respondents generally. That's statistical margin of error territory.

It would be more accurate to say that black respondents were far less likely to identify as libertarians than were respondents generally (7 vs. 12). OTOH, the data also shows that the 8% of respondents who identified themselves as neither black nor white were the far more likely to display "libertarian" attitudes than white people(11 v 8).

Libertarians are disproportionately male, high-income, young and western. But white? Not really. Do black people have some antipathy toward libertarian attitudes? Maybe. But I'd want to see the data controlled for both race AND income before reaching that conclusion...
4.9.2008 6:05pm
Adam J:
What do bookstores choosing which books to stock have to do with it? We're talking about customers, not suppliers. Plus, I suspect the bookstore would get itself into a heap of trouble if it was said it didn't carry a specific book because the author was gay or black.
4.9.2008 6:13pm
IB Bill (mail) (www):
I'm more with the straight libertarian argument here. It's free speech. It's free association. It's a free country, and she can accept the clients she wants. Piss on the NMHRC. Piss on old time hockey. Piss on Eddie Shore.
4.9.2008 6:13pm
DJR:
Probably this has been covered in the comments above, (which I apologize for not reading) but there is a difference between refusing to deal with someone in a protected group and refusing to photograph a subject you find distasteful. I don't see that the photographer has said she will not work for gays, just that she will not photograph a gay wedding. The former seems like a much harder case for the photographer than the latter.
4.9.2008 6:17pm
Kim Scarborough (mail) (www):
Okay martinned, let's modify my hypothetical so that I'm a nasty racist and I don't want to work for a black-owned company. As before, the job offer is acceptable in every other way. In that case, should I be forced to accept the job under threat of legal penalty should I refuse?
4.9.2008 6:23pm
Elliot123 (mail):
Suppose Elaine is a famous artist whose paintings hang in various galleries across the country. She also does single portraits for $1 million each, portraits of couples for $1.5 million each, and advertises the fact. Some of these portraits even hang in renowned museums. She and the entire art community consider all her work to be high art. Is she required to paint a portrait of the lesbian couple who want to pay her $1.5 million for the work? Is this any different from the photographer, biographer, Victorian house painter, or chef?
4.9.2008 6:26pm
EIDE_Interface (mail):
IB Bill:

Amen brother.
4.9.2008 6:36pm
Edward Weston:
This is not a freedom of association matter, because freedom of association is not mentioned in the First Amendment. What is mentioned is the freedom to assemble and petition the government for redress of grievance, and the word "associate" has somehow become an ill-conceived substitute. Under the Jaycees decision of the Supreme Court, however, it's pretty clear (though probably an oversimplification) that to be protected, the "association" must be for a purpose that approximates petitioning the government. There is no general "First Amendment" right to associate with whomever you please. One could argue that such a right exists under the Ninth Amendment, but there's not much of an analytical framework for determining what that might mean, even if taken to be true.

So, Eugene is absolutely correct (big surprise there) in recognizing this photographer case as a free expression case, not a freedom of association case. In the Dale case, for example, the determinative point was that requiring the Scouts to accept a scoutmaster who openly advocated a gay lifestyle (which was the issue, not his just being gay) was to require the scouts to endorse a message that they did not want spoken. The case was NOT decided on grounds that anyone had a right not to associate with gay people.

It is obvious that this particular photographer sees her expressive product as a message that endorses the activity it depicts. I think most wedding photographers, in particular, do. I think Eugene is correct that forcing the photographer to provide her service is no different from requiring a writer to engage in expression for the benefit of a cause he or she despises.
4.9.2008 6:38pm
martinned (mail) (www):
L.S.,

@Kim Scarborough: Just like our photographer doesn't personally have to take the pictures, but only have her business not discriminate based on sexual orientation, you, the racist potential employee can never be compelled to work for anyone. After all, that would violate the 13th amendment, etc.

@Eliot123: I guess the difference lies in the extent to which there is a general offer (not in the legal sense) that this business will enter into a contract with anyone. A diner will serve coffee to anyone who walks through the door, the lemonade stand will sell lemonade to anyone that wants some, etc., and if the business owner wants to restrict that offer somehow, because they're a bigot, there's a problem.
A portrait painter, on the other hand, does not communicate a blanket "invitation to treat" to the community. Instead, they agree to paint individual clients, or not, and negotiate a specific contract for each client. Because of that, they would be much less likely to run afoul of anti-discrimination laws.
4.9.2008 6:38pm
Bruce:
Architecture is an art too, but the Fair Housing Act is not unconstitutional.
4.9.2008 6:39pm
Don Miller (mail) (www):
When I was in college, I asked what I thought was a valid question and my Business Law Professor decided I was a closet racist for even thinking it and said that in front of 100 people in the lecture hall.

My question is like Kim's. If I am a business owner, my goal is to hire the best people I can and sell my goods and services to as many people as I can. If I discriminate in my hiring practices or in my customer policies I automatically prevent my company from making as much money as possible.

Discrimination limits my pool of employees and customers thereby punishing myself.

Why do we need the government to further punish us for bad decisions?

I can agree that there have been places in our country and times in our history where racist practices were so pervasive that certain segments of the population were harmed by the lack of goods, services and jobs. In those cases, Government action to correct the problem may have been appropriate.

But is the market for wedding photographers in New Mexico so limited that one prejudiced photographer limited someones ability to find a photographer for her event that she suffered actual damage? I would be hard pressed to believe that.

In this case the Human Rights Commission of NM has decided that it is a violation of human rights to hurt someone else's feelings. They can couch the decision is whatever language they want, but this is about hurt feelings. Nothing more.
4.9.2008 6:45pm
c.gray (mail):

Is she required to paint a portrait of the lesbian couple who want to pay her $1.5 million for the work?


Has hypothetical famous painter held herself out as willing to paint anyone who books an appointment and pays her the appropriate fee? Probably not. But if she has, she _will_ get fined (in New Mexico) if she refuses to do the painting.
4.9.2008 6:46pm
David M. Nieporent (www):
Architecture is an art too, but the Fair Housing Act is not unconstitutional.
Complete non sequitur. The FHA doesn't address architecture.
4.9.2008 6:47pm
bobolinq (mail):
To c.gray:

My bad! I originally wrote, based on stereotypes, that libertarians are mainly "white men." Then I did some research, learned that my stereotype was wrong, and intended to correct it. But I took out the wrong word: I meant to say "disproportionately men" not "disproportionately white."

(Note: I'm a white man. I've got nothing against white men. I've even been discriminated against as a white man. But I do think that if you're less likely to have suffered discrimination -- i.e., if you're a man (or a white man) -- you're less likely to believe anti-discrimination laws are a good thing. So I think that libertarian demographics explain, in part, libertarian positions.)
4.9.2008 6:49pm
Kim Scarborough (mail) (www):
martinned: I guess I don't see the difference between being forced to work for a company under contract and being forced to work under salary, which is basically what your distinction amounts to. Company A is black-owned, and I'm a racist computer programmer. They offer me a salaried job, and I refuse because I don't want to work for black people. A month later, I haven't found a salaried job and I decide to start doing consulting work, and I set up a web site for that purpose. Company A comes back to me and hires me to do the exact same work, only now as a consultant rather than an employee. So I could refuse before, but not now? That may indeed be the legal distinction, but logically and morally that doesn't make a whole lot of sense to me. It's suddenly okay for the goverment to force me to work against my will, just because now I don't have to fill out a W-2?
4.9.2008 6:54pm
martinned (mail) (www):
L.S.,

@Kim Scarborough: If you're a business, communicating an invitation to treat to the community, you can solve your issues by hiring an employee to do the work. No involuntary servitude for both reasons.
4.9.2008 6:56pm
anonthu:
Roscoe B. Means has made the most insightful comment thus far: that the state does not even recognize the marriage as legally valid (they are not issuing licenses).

Seems to make a very strong case for the photographer: she only shoots pictures at lawfully recognized marriage ceremonies.
4.9.2008 6:59pm
David Schwartz (mail):
DJR: The problem of the action versus status argument is that there's a continuum between them. What about a chef who doesn't want to cook for black people? How is "cooking for a group of black people versus cooking for a group of white people" different from "photographing a gay civil union versus photographing a straight one"?

If you can argue that a chef should have to cook for whoever sits down at a table, why can't you argue that a photographer has to photograph whoever people want her to photograph?

This really should be a freedom of association issue rather than a freedom of speech issue. Unfortunately FoA is essentially dead in this country.
4.9.2008 7:04pm
NOLA Lawyer (mail):
Prof. Volokh,

Would the photographer have the same defenses if she refused to do a portrait of a single lesbian (simple headshots)? This strikes me as being more like the lemonade example (I won't serve you because you're homosexual) than the wedding picture issue (I won't serve you because doing so requires me to celebrate and adopt something I believe is morally repugnant).
4.9.2008 7:06pm
Wayne Jarvis:

The problem of the action versus status argument is that there's a continuum between them. What about a chef who doesn't want to cook for black people? How is "cooking for a group of black people versus cooking for a group of white people" different from "photographing a gay civil union versus photographing a straight one"?


C-O-N-T-E-N-T
4.9.2008 7:08pm
eddiehaskel (mail):
So let's start with the analogies: can a pharmacist refuse to fill a prescription because it's for a gay couple? What if it's simply refusing to sell contraception? [Okay mixed metaphors don't translate, but there is a bit too much talk about art and expression with respect to a commercial photographer.]

Would a camera store be within its rights to refuse to sell a gay couple cameras to be used at the wedding?

Would a video recording service have the same rights as the photographer?

And what part of the documentation of an event is artistic? When I ask a professional photographer to document damage to a car, would that person refuse to take the picture if I had a bumper sticker supporting gay rights?

I think it is a bit too easy to say that simply taking pictures of an event contains enough of a speech element that requires the vigilance of first amendment protection. The government is not demanding that the photographer make any particular statement or verify or deny any particular belief or hold any particular political position: but if you hold yourself out as a professional photographer for hire to document an event, refusal to serve "those" kinds of people is discrimination. If such a group is protected, then the US government offers a remedy.

But the only truism to be found in this morass is that bad facts make bad law.
4.9.2008 7:20pm
Dan Hamilton:
If she only takes pictures of Weddings then until they make same sex marriages legal she should be able to refuse.

This is a case of what the meaning of is is but the lawyers should agree. If she is only a Wedding Photographer then she is NOT a Same-Sex Union Photographer.

If a Writer only writes books can you force him to write a press release???
4.9.2008 7:20pm
Ken Arromdee:
If you can argue that a chef should have to cook for whoever sits down at a table, why can't you argue that a photographer has to photograph whoever people want her to photograph?

The chef example isn't comparable because even if preparing food is expressive, he'd be preparing the same food for everyone. The photographer, on the other hand, would be producing photographs with different content. It's no different than if he was a speechwriter and hired to write a speech about how good the marriage is.
4.9.2008 7:33pm
PaulK (mail):
A freelance photographer isn't the Heart of Atlanta Motel, where you drive down the road, stop, and are then physically excluded from a premises that holds itself out in public to accepting whomever walks in the door with money. Agreements to take photographs are the result of business negotiations that are only finalized by contractual agreement (Contracts isn't my strongest subject but I'm not seeing an avenue for applying detrimental reliance in a photographer-hiring case). Before entering the agreement, each party can walk away -- and frankly, I see very little basis for the state telling them why they can or cannot. From an end-result business perspective, there's little difference in her "discriminating" against them because she doesn't like their event or because she thinks they probably don't have the money to pay her. Should (or does) the law place the same burden on the customer? What if these folks really wanted a homosexual photographer -- could they choose not to hire this one after learning she isn't? On that line of reasoning, why should they get to choose at all? Why shouldn't we simply have a State Bureau of Photographers, with whom you file a petition to get an event photographed, and that has a monopoly on the for-hire photography market? The underlying logic is that it is appropriate for the state to regulate private business decisions. Why not go whole hog?
4.9.2008 7:36pm
PaulK (mail):
PS -- the hotel and the restaurant cases are distinguishable because the nature of the contractual relationship is fundamentally different in the two cases The hotel/restaurant makes an offer to provide accommodations, which a patron accepts by coming in and ordering. A photographer's advertisement is an invitation to make an offer; the customer makes an offer by soliciting the photographer, and the photographer has the final right to accept or reject the offer.
4.9.2008 7:42pm
one of many:
I see no indication that Elane Photograpy discriminated against anyone because of their sexual orientation, perhaps there have been other cases where the company has refused to photograph homosexuals who are having mixed-sex marrages, but absent that fact finding there is no indication that there was a refusal to serve people based upon their sexual orientation. What has happened is a refusal to photograph a particular TYPE of marriage ceremony which is mostly limited to a protected class of persons (perhaps Elaine has also previously photographed a same-sex marriage between heterosexuals, which would also indicate an unacceptable bias against homosexuals - but no indication of such a fact set exists to my knowledge).
4.9.2008 7:46pm
Kim Scarborough (mail) (www):
Hiring a subcontractor can be non-trivial, especially for the lone consulting programmer in my hypo. Please explain why being forced to hire somebody else is any less being forced to work than being forced to come in and do the programming.
4.9.2008 7:48pm
NOLA lawyer:

but if you hold yourself out as a professional photographer for hire to document an event, refusal to serve "those" kinds of people is discrimination


What's your basis for saying she doesn't provide a service to lesbians? She doesn't photograph gay weddings, but that doesn't mean she refuses service to gay people.

Here's a better analogy: What if a Santeria priest wanted a vegan photographer to come photograph his ritual animal sacrifice? Would she be discriminating against his religion if she refused photograph him slicing a goat's neck?
4.9.2008 7:48pm
Dilan Esper (mail) (www):
I don't know the right answer here. I do know that it is a tougher case than Professor Volokh admits.

Here are the relevant facts, it seems to me:

1. Wedding photography is a form of protected expression under the First Amendment.
think the troubling hypothetical for supporters of a First Amendment defense is the calligrapher or printer or sound engineer or hotel where the marriage is to take place; it seems to me they are similar to the photographer (all of them will be forced to "express" an endorsement for gay marriage) and yet I would suspect that fewer people would want to claim a First Amendment defense for them.

2. However, wedding photography is more craft than art; you have to know how to get the light right and what poses look flattering, but you are not Ansel Adams. One wedding photograph usually looks pretty much like another.

3. Wedding photography is a service that is provided to the public, usually on a come-one, come-all basis.

4. The state of New Mexico has not recognized gay marriage.

5. Some wedding photographers may hold sincerely-held religious objections to gay marriage.

6. The state of New Mexico's antidiscrimination laws are intended to ensure that gays and lesbians have equal access to come-one, come-all services as straights do.

7. There are enough wedding photographers out there that is is almost certain that a gay couple will be able to find one that will be able to photograph their ceremony without having to pay a higher price.

Facts 1, 4, 5, and 7 militate in favor of a First Amendment defense. Facts 2, 3, and 6 militate against one. If New Mexico recognized gay marriages, fact 4 would then militate against a First Amendment defense, but the other factors would not change.

This is a very close case.
4.9.2008 7:56pm
EIDE_Interface (mail):
Look - either you believe in freedom to associate or you don't. Which side of the fence you fall on speaks tidal waves.
4.9.2008 7:56pm
Mike S.:
Presumably we all agree that if Elaine were the minister, rather than the photographer, she would be within her rights to refuse to perform the ceremony if her church didn't recognize such things.

And we agree, I would assume, that if she ran the company that rented chairs and tables, New Mexico would have the power to forbid her from discriminating against renting to same-sex commitment ceremonies. And the same if she just rented high-end camera equipment for someone else to photograph the event.

So the questions are: is photography of the sort Elaine practices expressive, or is it recording the expression of the ceremonies participants? Every wedding I have been to has elements of both. That is, the photographers take pictures both of what is going on anyway, for example the ceremony itself, and of scenes the photographers compose, like the portraits of the couple. It would seem that the first amendment should protect the latter.

Let me ask another question. Many Orthodox Jews have a religious objection to entering a church, especially during a religious ceremony. Could someone who followed that belief refuse to photograph a church wedding? (I am assuming he would take pictures for Christians of things other than religious ceremonies) I would think that it was a simple case in Free Exercise that the photographer has an absolute right refuse to buisiness that compels him to enter someplace that violates his religion. Suppose Elane claimed that her religion prohibited her from merely being present at a same sex commitment ceremony. Could the state compel her to attend be means of an antidiscrimination law? Even if she were in a nonexpressive role?
4.9.2008 7:56pm
Dilan Esper (mail) (www):
Oops, ignore the text after the period in point 1. That was supposed to be deleted.
4.9.2008 7:56pm
EIDE_Interface (mail):

NOLA lawyer:


but if you hold yourself out as a professional photographer for hire to document an event, refusal to serve "those" kinds of people is discrimination



What's your basis for saying she doesn't provide a service to lesbians? She doesn't photograph gay weddings, but that doesn't mean she refuses service to gay people.

Here's a better analogy: What if a Santeria priest wanted a vegan photographer to come photograph his ritual animal sacrifice? Would she be discriminating against his religion if she refused photograph him slicing a goat's neck?


Are you equating homosexuality with goat sacrifice? I'm reporting you to the NMHRC ASAP!
4.9.2008 8:00pm
Blaze Miskulin (www):
This is the series of posts that actually got me to register here.

Those people who say that wedding photography isn't art have obviously never worked as a photographer. Wedding photography may not always be "artsy", but the intent of the action is to capture a sense of emotion and beauty--two concepts that can not be quantified. That makes it art. One must also take into consideration the intent and expectations of both the photographer and the subjects. I know that the photographer considers the work to be art, and I am quite sure that the majority of couples seeking the photographer's services consider it to be art (as opposed to a series of snapshots as some people seem to imply). Finally, unless specifically stated in a contract, the images are the copyrighted property of the photographer (see US Code Title 17). Copyright implies inclusion into the same category as writing, which holds the presumptive state of being "expression" as governed by the First Amendment.

For those who bring up the food argument: Let's put the analogy into a more equivalent state. If an atheist walked into a Jewish restaurant, could the owner be compelled to make a ham sandwich for the customer? If a black person walked into a vegan restaurant, could the owner be compelled to serve the customer a cheese burger? If a gay person walked into a coffee shop run by a member of Alcoholics Anonymous, could the owner be compelled to serve the customer a glass of scotch?

These differ from situations where the persons are the same, but the items (i.e., "content") become lamb in white-wine mint sauce, tofu and sprout salad, and cup of Jamaican Blue Mountain with a dash of nutmeg.

In the former, the person is refusing to support a moral or religious stance to which they are opposed. In the latter, they're discriminating against an individual. There is a difference

From what I'm seeing in the descriptions of the case, Elaine Huguenin didn't refuse to take photos of a gay person, she refused to take photos which celebrate, and depict in a positive and supportive manner, a gay wedding. As the photographer, her name is forever associated with those photos. That association implies support of the content of the photographs. She is being forced to publicly support an even which she finds to be morally objectionable.
4.9.2008 8:02pm
EIDE_Interface (mail):
Mike S:

Why do we grant a special FOA exemption on religious grounds for priests, but not for a business-person? Isn't that government showing preference for organized religion? Isn't that a violation of the Establishment Clause? OMG, I think I've hit upon something here!
4.9.2008 8:08pm
Caliban Darklock (www):
To cover the lemonade issue, I don't need to tie myself in knots to explain the difference.

It is my decision what to sell. I may not discriminate in terms of to whom I sell it, but I may discriminate in terms of what to sell. If I sell lemonade, and someone comes up and demands cider, I may quite simply observe that I do not sell cider. Even if cider is readily available, and is every bit as easy to sell as lemonade, I may simply say that I am in the business of selling lemonade - not cider. And no law may compel me to sell cider.

Likewise, if I am a carpenter, I may choose to build only decks. Someone might come to me and ask for a gazebo, and the argument might be made that it is every bit as possible for me to build a gazebo as a deck, but I may say that I do not build gazebos. No law may compel me to build a gazebo.

As a photographer, every customer demands a different product. Each customer that comes into my shop demands a specific product: a picture of the objects and events they deem important. And regardless of who that customer is, that picture is what I sell. It is entirely within my rights to say that I do not sell pictures of certain objects and events. Just as I may say I do not sell nude photographs, I may say I do not sell photographs of gay weddings. The question is whether I am refusing to take pictures for a gay client, or of a gay wedding.

It's easy to tell which is the case. Simply have the gay client return and ask for photographs of an innocuous event she has previously photographed for other clients. If she refuses to take such a picture for this client, it's discrimination.
4.9.2008 8:10pm
Ross Grimes:
As hinted by others like Mr. Means, your hypothetical does not actually go far enough. It's more akin to a freelance business press release writer being required to write a description of the "commitment ceremony." The government's argument here is not just that there is discrimination, but also that business that do not even engage in that type of activity regardless of the client (such as a committment ceremony), instead focusing on a different market segment (e.g. press releases, weddings). Not only is the government saying you must photograph this ceremony, they are also saying that we don't care that you don't normally photograph committment ceremonies, prefering instead to stick to weddings. At what point did the USSR take over New Mexico and decide which industry each individual must go into? Forget the 'discriminatory' lemonade stand in terms of customers, now the neighborhood boys will have to sell any drink requested by a passer-by because lemonade is a form of drink and we can't discriminate one drink from another. "Oh you only sell lemonade? We'll see about that, by the time i'm through with you in court, you'll be selling a full alcoholic lineup you discriminatory children!"
4.9.2008 8:17pm
EIDE_Interface (mail):
Blaze Miskulin:

Mrs. Hugeunin is going to do it for her "own good". If not, we can always send her to a reeducation camp.
4.9.2008 8:18pm
EIDE_Interface (mail):
Caliban Darklock:

I agree it is discrimination. But you would use the jackboot of the state to force Mrs. Hugeunin to do something against her will. We all discriminate every day silently because to do so aloud would get us into trouble. Mrs. Hugeunin is simply in trouble because she wasn't clever enough to get her way out of it.
4.9.2008 8:20pm
frankcross (mail):
Well, say you're a writer or photographer and refuse to work for black people (getting married, if you wish). That's the comparable hypothetical. Say the person thinks black people are immoral and won't deal with them. I think it is clear you could not do so.

The controversy here is simply the writer's belief that homosexuality is arguably immoral, while blackness isn't. Well, you're entitled to your opinion, but I think the identity of protected classes is one for democratic elected officials to make.

Of course, some would have no trouble embracing the black person hypothetical, and they're consistent, though certainly not reflecting the law, I don't think
4.9.2008 8:37pm
Caliban Darklock (www):
@ EIDE_Interface:
"But you would use the jackboot of the state to force Mrs. Hugeunin to do something against her will."

Um... no. Rather the opposite. My entire point is that her photographs are a different product when taken at different events.

While it is certainly unacceptable for her to refuse the same product to gay clients that she gives to non-gay clients, she's not refusing the same product. She's refusing to provide "pictures of a gay wedding", which is every bit as legitimate as refusing to provide "pictures of mutilated animals". Her willingness to provide "pictures of a wedding" or "pictures of animals" does not in any way obligate her to provide these "same products" under transformative circumstances.

And it has nothing to do with being clever. It has to do with the general inability of the gay community to understand that acceptance is not the same as approval, and no amount of effort will ever compel universal approval of homosexuality.
4.9.2008 8:44pm
q:
For those advocating the position that "wedding photography" (broadly defined) is not expression, I hope you can live with the consequences. Legislatures are now free to prohibit any same-sex "wedding photography" without implicating the First Amendment.
4.9.2008 8:59pm
David M. Nieporent (www):
I think it is a bit too easy to say that simply taking pictures of an event contains enough of a speech element that requires the vigilance of first amendment protection. The government is not demanding that the photographer make any particular statement
Yes, they are. The photographs are the statement.

Some people keep wanting to treat photographs as a consumer product, like chairs or cake or tuxes. But the photographs are expression.

And, yes, the content of that expression is at issue; the photographer is not merely being forced to take pictures. Rather, she's being forced to take pictures that cast the subjects in a flattering light -- in other words, to take a certain position in the expression. (If she didn't, she'd be sued by the couple for breach of contract and would again have to pay them. So either way she's being punished.)
4.9.2008 9:10pm
Former_photog:
There is a difference in the ability to satisfy the customer based on your familiarity with the subject matter. I used to be a wedding photographer. I turned down shooting Jewish weddings - not because of prejudice but because the ceremony is different, and I had no training in shooting a Jewish wedding. I had never even attended one (being raised int he deep south). I would have done the same if asked to shoot a Muslim, Hindu, or other wedding. I didn't have the time, resources, or inclination to spend the time to learn to do them given I had plenty of business otherwise.

Why? Because a dissatisfied bride is a nightmare. If I wasn't sure I could satisfy her, I didn't WANT the business. I turned done Christian ceremonies too when my interview with the bride gave me that funny feeling that she was going to be a difficult to please PITA.
4.9.2008 10:30pm
cathyf:
That's an interesting thought, Former_photog -- what about the photographer who refuses to do a lesbian ceremony (two bridezillas for the price of one!) but has no problems with 2 gay men?
4.9.2008 10:56pm
Clayton E. Cramer (mail) (www):

It has to do with the general inability of the gay community to understand that acceptance is not the same as approval, and no amount of effort will ever compel universal approval of homosexuality.
But they can certainly severely punish the unbelievers! I don't know what this photographer makes each year, but having to put out $6600 for following her conscience certainly gets the message across--being a pervert (by modern standards) is going to cost you.
4.9.2008 11:54pm
Bruce:

Architecture is an art too, but the Fair Housing Act is not unconstitutional.

Complete non sequitur. The FHA doesn't address architecture.


The FHA addresses the sale of houses -- houses that may have been designed and sold by architects. So it's a sequitur, I believe.
4.10.2008 12:58am
EIDE_Interface (mail):
Edward Weston:

Not all of our rights exist because they are enumerated in the Constitution. We have the natural right of freedom to associate.
4.10.2008 1:09am
q:

The FHA addresses the sale of houses -- houses that may have been designed and sold by architects. So it's a sequitur, I believe.

But the FHA doesn't mandate any particular design (i.e. expression), so it is a non-sequitur.
4.10.2008 4:25am