The New Mexico Supreme Court ruled yesterday that a photography studio violated the the New Mexico Human Rights Act (NMHRA) by refusing to photograph a same-sex wedding. Vanessa Willock was told that Elane Photography had a moral objection to her gay wedding and sued under the act, which “prohibits a public accommodation from refusing to offer its services to a person based on that person’s sexual orientation.” The case is the latest in a growing number of such conflicts between religious beliefs and anti-discrimination laws. Because this is an expressive activity, it raises some difficult questions under the first amendment rights of the owners of Elane Photography, Jonathan and Elaine Huguenin. As one justice noted in concurrence, this is “the price of citizenship.” However, there remains the question of the right of citizens not to be forced to express ideas or values with which they disagree. That concern rests on a distinction between an expressive activity like photography and a cab or a movie theater in public accommodation.
The decision is well-written and well-conceived. I particularly like the part of the concurring opinion by Justice Richard C. Bosson, writing in concurrence, where he states that the case “teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less.” I happen to agree with that sentiment. However, I remain concerned over the impact on first amendment rights.
The Court made a reasonable distinction between the Huguenin’s conduct as opposed to their beliefs. The law governs conduct in public accommodation. Thus, “in the “world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different.”
The New Mexico Human Rights Council ordered Elane Photography to pay Willock $6,637.94 in attorneys fees and costs after finding a violation of the law.
The Court takes on the first amendment issues directly. The Court drew a compelling comparison to the Supreme Court decision against law schools who had refused to permit military recruiters to participate in their recruitment or placement activities:
Elane Photography’s argument here is more analogous to the claims raised by the law schools in Rumsfeld. In that case, a federal law made universities’ federal funding contingent on the universities allowing military recruiters access to university facilities and services on the same basis as other, non-military recruiters. 547 U.S. at 52-53. A group of law schools that objected to the ban on gays in the military challenged the law on a number of constitutional grounds, including that the law in question compelled them to speak the government’s message. Id. at 52, 53, 61-62. In order to assist the military recruiters, schools had to provide services that involved speech, “suchas sending e-mails and distributing flyers.” Id. at 60.The United States Supreme Court held that this requirement did not constitute compelled speech. Id. at 62. The Court observed that the federal law “neither limits what law schools may say nor requires them to say anything.” Id. at 60. Schools were compelled only to provide the type of speech-related services to military recruiters that they provided to non-military recruiters. Id. at 62. “There [was] nothing . . . approaching a Government-mandated pledge or motto that the school [had to] endorse.”
The problem is that a photographer does more than offer a facility. He uses an interpretive skill and art form to frame an event. This is more akin to a writer or painter as an expressive form. Of course, the problem is that many forms of public accommodation could claim expressive components from bakers to tailors. The Court has drawn a line at the government requiring newspapers or publications to carry opposing views. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 244 (1974) (invalidating Florida’s “‘right of reply’” statute);
Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1, 4, 20-21, 26 (1986) (plurality opinion) (holding unconstitutional an order to allow a third-party group to send out message with a utility’s billing statements). In one such case, Hurley v. Irish- Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995) where it ruled that a parade could exclude a gay rights groups rather than force it to include an expressive component in its banner and advocacy.
The Court again draws a compelling distinction:
“Elane Photography does not routinely publish for or display its wedding photographs to the public. Instead, it creates an album for each customer and posts the photographs on a password-protected website for the customers and their friends and family to view. Whatever message Elane Photography’s photographs may express, they express that message only to the clients and their loved ones, not to the public.”
Yet, a photographer does not simply produce robotic or reflective images. They interact with subjects of their photos and arrange scenes to capture the essence of an event. For that reason, I was not convinced that photographs of this kind are solely the expression of the couple and not the photographer.
My concern is with the speech as opposed to the association. While the couple argued that third parties could conclude that their pictures show approval of same-sex relationships, the Court correctly notes that “They may . . . post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” Yet, I wonder if such statements could be challenged next as creating a hostile environment.
In the end, I remain torn by this ruling. I see the logic and the precedent for the decision. However, I have lingering discomfort with a required expressive act like photography. It is in my view a close question and I would love to read the thoughts of our blog on the issues. There may be no way to accommodate such expressive rights in a public accommodation law. However, that would require deeply religious businesses to either shutdown or engage in ceremonies that they find morally objectionable. It is a tough call despite my long-standing support for same-sex marriage and gay rights. What do you think?
Here is the opinion: sc33687
David,
I’m pretty sure I’ve already addressed your expected comment offered at 4:11 pm. Quoting myself, which is weird:
“. . . but your own writing exposes your position which you then spend much time denying.”
Read your own words, David. I’ve never seen such recursion of thought than what you present. If it makes you feel better to claim that I’m the one presenting hate and inflexible ideology then there’s really not much I can do about that.
Your volume of verbiage far outstrips mine — I think you forget what you’ve said in your shrill attacks on others while claiming you present intelligent concepts.
gbk wrote: “Read your own words, David. I’ve never seen such recursion of thought than what you present.”
I read my own words again, but see nothing even resembling the way you describe them. Clearly you misunderstand what I write. You interpret something based upon your own world view rather than understanding my position. If you really want to unravel the point of difference, perhaps focus upon one statement you find to be off.
David,
Then someone must be impersonating you on this blog:
“They can take away my vote today, and it would not affect me one bit. If they take away my right to vote and rule in a good way, I will dwell in peace with government and there would be no problem.”
It’s obvious that you’re not referring to current government structure because you also say this in the same thread:
“What is a greater problem than either of these [voting fraud and disenfranchising of voters] is the dilution of votes caused by ignorant people voting simply because it has been drilled into their heads that they are doing something good by voting. When someone mindlessly votes, putting a mark by someone’s name who they know nothing about, that person is doing something WRONG and EVIL in society.”
I also remember you stating that intelligence tests should be required for voting. Gee, I wonder what questions you would pose:
1. Voting is unnecessary in a small group because the head of the household can easily discern the desires of those he governs? True or false?
2. A dictator can rule a country without any votes if he is a good and charitable ruler. True or false?
3. “He” in questions 1 and 2 cannot be replaced with “she.” True or false?
Sorry that I don’t give greater weight to your claims of not hating, (like me, my neighbors call me Mr. H for short), but your own writing exposes your position which you then spend much time denying.
I think I’ll trust my reading skills more than your denials.
gbk –
So because I do not embrace equal and universal suffrage and would prefer a weighted voting scheme that is a little more aggressive than the way our Electoral College is setup, I am a zealous bigot who prefers a theocracy? That makes no sense. Would you describe Thomas Jefferson also in this way? I doubt it. What makes sense is that many here are prejudice toward their own views and cannot bear to hear someone else discuss a different perspective.
A bigot is a prejudiced person who is intolerant of any opinions differing from his own. That sounds to me like you, Gene H, and a few others who frequent these forums and would rather present ad hominem slurs than intelligent concepts. In contrast, I enjoy hearing other viewpoints and how others express themselves. In particular, Vestal Virgin has given some very interesting thoughts in a very civil way and has provided a nice contrast to the perspective of Bob Esq. and Randy Lee. Dialogue like this motivates further study and consideration of the issues involved.
Randy Lee:
wasnt Spooner a garden variety anarchist? I would think libertarians would have given that up by now. It isnt going to work, you cant have 1000 court systems.
David,
You seem to fail to comprehend how social dynamics work. so I’ll spell it out for you – again.
Vague and non-committal language – although a tactic used by propagandists to avoid stating expressed intent – is beyond your mastery.
You can say you aren’t a theocrat all you like, but your insistence on a religious definition of marriage instead of the legal one that has now been explained to you many many times belies that assertion.
You can say you aren’t a bigot, but your express endorsements for treating homosexuals as second class citizens without being able to name a specific harm officially recognizing their equal rights would cause also belies that assertion.
You can tell people to call you a cab, but if you act like a theocratic bigot? They are going to find you to be a theocratic bigot. A=A. The Law of Identity holds. No amount of protesting will get others to think you are not that which you act like. You are what you is.
Gene H wrote: “your insistence on a religious definition of marriage instead of the legal one that has now been explained to you many many times belies that assertion.”
I have offered you legal definition from Loving v. Virginia, Maynard v. Hill, and Skinner v. Oklahoma. I NEVER offered a religious definition. You’re repeating this lie ad nauseum, but such will not make it true.
In contrast, YOUR definition of marriage is found nowhere in common law. It is a NEW definition which you and others are fighting to make the new legal definition.
Furthermore, contrary to your assertions, I do not fight to treat homosexuals as second class citizens. Their same sex unions (some homosexuals still have opposite sex unions) are distinctly different than opposite sex unions, so I argue they should not be lumped in together with them. I have argued to grant them rights that pertain to the nature of their union.
I believe that all people, regardless of labels applied to them, are created in an equal state before the law, and they each deserve the equal protections of the law. If a person is born with an IQ of 70, he is equal before the law as someone like Albert Einstein with a superior intelligence. Whether male, female, hermaphrodite, homosexual, bisexual, or heterosexual, all have equal standing before the law and the law applies equally to all. Also, all ought to have equal opportunity for advancement in society.
You ask for harm, and I have explained many. The problem is that you keep looking for that “SPECIFIC” harm to me personally. I acknowledge none to me personally, but that means nothing. The murders in Detroit today cause no specific harm to me personally, but that does not mean they do not cause harm.
This very thread shows a harm to society, where a photographer is found guilty of discrimination. It is not a harm to me personally, but it is a harm to the photographer being ordered to pay over $6,000. There was another harm discussed about a florist being prosecuted for not wanting to provide flowers for a wedding. The list of harms will continue to grow as sexual immorality is declared by the law to be wholesome and good for society and our children.
Your attempt to use the law and the authority of government to force people to think the same way as you is wrong. It will lead to civil unrest.
David,
“Yup. The only thing worse than religion is government.”
That’s a strange statement coming from the “head of a household” whose government allows him the unfettered right to be a zealous bigot and pursue his stated desire for a theocracy that he will live in peace with.
gbk wrote: “That’s a strange statement coming from the “head of a household” whose government allows him the unfettered right to be a zealous bigot and pursue his stated desire for a theocracy that he will live in peace with.”
It is only strange to you because you prefer the stereotype of your embraced ideology over my actual words. Your desire to hate the stereotype and me in particular overrides your ability to hear. I have never stated any desire for a theocracy, nor am I a zealous bigot.
Randy,
All right. I’ll give these a read and get back to you. I predict that I will totally disagree with them, but I can see that you really cherish and treasure these, so I’ll try to read them with an open mind & open heart.
All the best,
VV
Vestal Virgiin wrote: “What exactly is it that you believe in? …………… Do you want some multi-tiered law in which the needs of the patron are weighed against the rights of the business owner?”
There is no need for a multi-tiered law. The only thing required is a correct understanding of what actually constitutes a “public accommodation”. Just because a private business is located alongside a public street does not convert the nature of such business from private to public anymore so than having a public street in front of your home converts your home into public housing.. If however, such a business is subsidized by public tax monies in whole or in part such a business would be public or quasi-public. It is only where the public hold an interest in said business that it can as a matter of law be a “public accommodation”, where the public at large can be heard to complain of the existence of a right to be accommodated.
Private businesses may have a moral duty in the eyes of some to treat everyone the same but moral duties cannot be converted to legal ones. For more on this read Bastiat, cited below.
There is only one legitimate and rational puprpose for the creation of government. That is to protect individual rights to life, liberty, and property. Legitimate government, i.e. public, authority and power is the collective organization of the individual right to lawful defense. Any exercise of power beyond that is illegitimate. The compelled imposition of the morals of one group upon another is a violation of individual liberty. Such laws and the legal framework that supports them is referred to as ‘positivism’.
So as to what I more fully believe, that can be better explained by reading Lysander Spooner’s treatise entitled Natural Law, at http://lysanderspooner.org/node/59
Also as to what should be defined as and treated as “public” one should read Frederick Bastiat’s THE LAW . See at http://bastiat.org/en/the_law.html#SECTION_G064
Both these Treatises are short and in my opinion should be entertained by everyone able to read.
I have looked for many years for anyone that could make a rational and meaningful argument opposing these two positions and so far i haven’t found anyone.
Let me say one last thing: Religion screws everything up.
RIP Christopher Hitchens
Marco wrote: “Religion screws everything up.”
Yup. The only thing worse than religion is government.
Randy,
What exactly is it that you believe in? Are you against all anti-discrimination laws in public accommodations, except where someone’s life or health is directly at stake? Are you against all anti-discrimination laws in public accommodations, except where someone’s life or health is directly or INDIRECTLY at stake? Are you against anti-discrimination laws in public accommodations ONLY where they conflict with private business owners’ religious beliefs, except where someone’s life or health is affected? Do you want some multi-tiered law in which the needs of the patron are weighed against the rights of the business owner?
Please write me a statute. I want to read it.
I wasn’t “comparing” hospitals to “private photographers”. You had said “public accommodations” and “life threatening” and seemed to be largely opposed to anti-discrimination laws in public accommodations (I’m still not sure what it is exactly that you think), so what immediately came to mind were Martin Luther King’s remarks regarding an African American teen-ager who couldn’t get the treatment she needed because the Georgia hospital at which it was available wouldn’t accept her because of her race. Completely inhuman.
Vestal Virgin
Vestal V. wrote and admitted,
” Public accomodations discrimination law regarding wedding photographers doesn’t involve life threatening situations….”
And until you can make a case as to how the refusal to do business by some private wedding photographer either adversely affects the life or wellbeing of anyone, then you should be able to admit that there neither is, nor can be, any existing public interest in compelling a private entrepeneur to be subject to the societal dictates of some government imposed policy. Without an existing public interest inhering in the state, private people should not be forced to contract with others they either find repugnant or possibly disagree with for religious reasons. To do otherwise is to discriminate against the beliefs of such persons and victimize them.
Your comparison of the business of a private photographer with that of a hospital is misplaced and irrational. But if in fact, as I have pointed out , there is no actual private business, then the legal status of everyone is that of a public accommodator and subject to public regulation. Under such a situation everyone who is part of the corporate body politic is and would be subject to the statist corporate policy irregardless of whether they percieve their business activity to be private in nature.
Cases like Elane are slowly working to expose the fact that individual private freedoms have been abrogated/eradicated without the American people even being aware of the same.
Forcing a photographer to take pictures for a wedding that is against their religious beliefs is a violation of the photographers 1st amendment right.
Squeeky,
After I put up my last post, I realized it looked like I was contradicting you. (You don’t seem to have taken it that way.) But just to clarify in case there was any misunderstanding, I said that about the twentieth century because I often find myself having “cold war nostalgia”. Then I catch myself, realizing what a crazy thing that is to have. But,of course, I’m only human, and humans are nothing if not creatures given to irrational thoughts!
That being said, I like old things slightly more, just ever so slightly more, than I like new things. So, I call myself a “traditionalist” or “moderate conservative”. I don’t know how to weigh these things for purposes of self-identification on a political spectrum, but that’s how I think. It just doesn’t come through on civil rights threads, although I don’t regard civil rights as an inherently liberal cause.
I would definitely agree with you that so much of what is old is new again. Human nature has enduring characteristics. Ultimately, those will change, too, but it won’t be visible on our time scale.
I have to go about my work for the day, instead of being on this thread. I will definitely check out your video. Thanks for introducing it to me!
Wasn’t “Tunstall” the name of one of the guys in the Lincoln County War, with Billy the Kid?
Vestal Virgin
VestalV:
Well, it is blocked in my country, so I grabbed another version on youtube. It was pretty, and reminded me of Bridge Over Troubled Waters. I am not sure if this is “new”, but she is who I want to be when I grow up!
http://www.youtube.com/watch?v=bQa-AFoXEdY
Squeeky Fromm
Girl Reporter
Nice to see you, Squeeky. 🙂
Squeeky!
I missed the flogging thread. What was it about?
I think you should introduce me to new music.
I give you Penny Tai, a Mandopop singer from Malaysia, with her famous song, “The Love You Want”. There are touching movie scenes spliced into this video, but I don’t know what movie they’re from. They recall that crazy time known as the twentieth century, when people believed in universal principles and fought bloody conflicts over them. (Was that good? ^_^)
Vestal Virgin
VestalV:
Glad you put up some of what The Vestal Virgins were about! Sooo much that is old, is new again. I wanted to mention certain fertility rites on the “flogging” thread when caning came up, but what the heck. The “John Bircher” joke would have fallen flat!
Squeeky Fromm
Girl Reporter
David,
It’s just a tangential interest. The sacralizing of ordinary things around which the community sustains itself is cool. It has some communitarian value. That value seems lost. Although I’m sure not into some of the inhuman specifics of the rules surrounding the vestal virgins, such as being buried alive for lack of chastity.
Buddhism and Christianity both encountered fire worshipers and, as I think, failed to understand them. Buddhism uses fire worship as a metaphor to make its own points. Christianity just dumped it as soon as it got institutional power, with individual Christians desecrating the Temple of Vesta and persecuting its devotees with the state’s tacit encouragement.
The heroic workers at the Fukushima nuclear power plant were modern vestal virgins, of a sort. The people who guard the hearth for the citizenry; or, in this case, the people who guard the citizenry from the hearth.
Randy,
That people ordinarily avoid those in the marketplace with hostile views and are sometimes successful in doing so depending on the cultural climate prevailing in the majority, does not mean that they are able to do so all the time or that they are not burdened by having to do so or that they don’t suffer loss of human dignity for having to do so. The majority need not endure such things because (1) its the majority and just by the math the de facto presence of discrimination is far rarer; and (2) it’s already reserved for itself its own anti-discrimination categories in the human rights law. When a minority seeks only to do the same, the majority, having had a free ride all along, gets incensed that it has to pay the price of citizenship, so the minority gets accused of wanting to create special legal circumstances for itself.
Public accomodations discrimination law regarding wedding photographers doesn’t involve life threatening situations, but people have died or have had their medical conditions worsened by being refused service by hospitals, etc. Most notably African Americans and transgender people.
Gene,
I totally get what you’re saying. It’s very broad-minded and circumspect and doesn’t flippantly step on other people’s feet. However, I disagree.
Bob,
All right. I disagree, but thanks for the longer explanation. All the best.
************************
Vestal Virgin
Vestal Virgin,
In regards to an earlier comment of yours, I suppose you’re right. I did shift ground just a little bit when I shifted my focus from first amendment protection to the nature of heterosexual aversion to homosexuality.
The line in question here is the prohibition of governmental coerced thought or expression. That line should be maintained in an apriori fashion; i.e. with no regard to gender or race or anything a posteriori.
Your ‘preference for one not implying disgust for another argument’ works for learned traits; not inherited traits.
What I was focusing on is something the homosexual community does not want to acknowledge; i.e. the natural difference between the homosexual and the heterosexual. In their zeal for public acceptance of their status, the homosexual community confuses public acceptance of equal legal status with personal approval of said lifestyle. Consequently, the idea of anyone being ‘repulsed’ by the homosexual lifestyle seems alien to them. What many homosexuals fail to understand is that not everyone is hard wired the same way they are. Accordingly, they feel off put when a man turns away when two other men are kissing.
And that’s where the first amendment line appears in this case. And that’s why I took the nature over nurture turn in the argument. Because heterosexuals are just as entitled to their feelings as the homosexuals. It is a birth right and the government may not re-program either one of them to fit a particular policy. Forcing a photographer to form images of two men engaged in romantic poses, when they do not want such images in their mind, runs afoul of the first amendment.
“That thing you feel, that you locate in the object of your feeling, that you call “repulsive”–that’s prejudice, and it’s immaterial whether it arose from nature or nurture.”
I contend the nature argument is much stronger. However, it is immaterial when it comes to the first amendment argument. The issue there is to what extent is the government permitted to take control over the mind of the individual; thus the distinction between thought & expression as opposed to simply serving drinks and making beds.
“It is kind of funny, because I had actually typed out a whole paragraph leading into that paragraph that explained the connection more directly regarding what the law defines as moral and what people innately know is right and wrong and how this affects our reading of the law. ”
Sure you did, David. Sure you did. And I’m sure it was just as much bullshit as your false equivalence/guilt by association/loaded language attack given that despite having the real actual law explained to you numerous times already you keep coming back to the table with your zany made up fantasy understanding of the law.
To be clear, David, you didn’t and don’t upset me except in the generalized way bigotry and willful ignorance irritate me.
VV,
I think you misunderstand where I’m coming from on Elaine. I don’t think it’s bad. I think it’s a mixed bag that highlights a coming conflict over two competing and equally compelling and important rights.