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
Randy,
I read the Lysander Spooner page that you linked to, and the other one. Thanks for introducing him to me. I’m glad to know about him. I looked him up, too. It was really interesting that he was part of a plot to free John Brown after the Harper’s Ferry incident.
He makes some good points, but in my opinion, he singles out and inflates the value of a few aspects of human nature. In order to agree with him, you sort of have to ignore a lot of contrary things that are probably true from anthropology, economics, psychology, literature, etc.
He doesn’t account for the fact that majorities work in concert, outside of government, to exclude minorities from the society & economy, and the damage this causes them, beyond risks to the minority members’ lives. I think fans of Spooner have to ask themselves if they are okay with situations like these, situations that can’t reasonably be remedied by the insurance-like mutual self-help associations he proposes:
1. A minority member on a cross country trip is condemned to sleep in his car every night, because the hotels are owned by members of the majority, and they hold an irrational prejudice toward the minority.
2. A minority member is not able to buy groceries in his own county and is forced to drive to an adjacent county every shopping trip, incurring higher fuel costs and lost time, etc.
3. Minority members are not able to enjoy a friendly get-together at a restaurant they want to eat at, because the restaurant won’t serve them or there is no restaurant within a reasonable distance that will serve them.
There are lots and lots more examples like this. The damage is both financial and to the dignity of the person, and it’s the latter of these that might be the costliest of all, over the long term, to the person, the person’s family, other people around him or her, etc.
Vestal Virgin
ALBUQUERQUE, N.M. —” An Albuquerque judge on Monday ordered the clerk of New Mexico’s most populous county to join two other counties in the state in issuing marriage licenses for gay and lesbian couples.
State District Judge Alan Malott ruled that New Mexico’s constitution prohibits discrimination on the basis of sexual orientation.
The decision came in a case involving a lesbian couple who sought an emergency ruling because one of them is dying and they wanted to make certain the state would recognize their marriage, which happened last week in Santa Fe.
The Bernalillo County clerk’s office in Albuquerque plans to start issuing marriage licenses to same-sex couples at 8 a.m. Tuesday.” Reuters
Property rights in perspective:
RL,
Again, no one is forcing anyone to think any thing. Did the Civil Rights movement force people to stop being racist? Nope. And the Civil Rights movement as it regards homosexuals won’t stop you from being a bigot if that is your choice. It will, however, stop you from discriminating against them in commerce without facing legal sanction and recognize their inherent rights should be specifically protected to remedy the problem of discrimination based on sexual orientation by making sexual orientation a protected class. While your answer was only a slightly better attempt than most make in the specific harm argument, you still fail. The laws restrict action, not thought. I realize that many if not most Libertarians have a fixation with money and operate under the delusion that property rights are absolute, but at its best, the law is about protecting everyone’s rights, not just the rights of those whom you approve of. That’s the nature of an egalitarian society – liberty and justice for all – not just liberty and justice for straight white Christians to make money no matter what or who they trample in the process. Removing economic tyranny is just one step in recognizing and protecting the rights of homosexuals just as it was one step in recognizing and protecting the rights of blacks and other minorities based on race. Failing to understand that you can’t pick and choose what you want from the Constitution is a major failing with libertarians and libertarianism. The 14th Amendment and the Commerce Clause still apply whether you like it or not. Loving v. Virginia and Heart of Atlanta Motel, Inc. v. United States are still valid precedent and controlling law on these matters. Their logic and legal reasoning maps perfectly to the cases for recognizing the equal rights and equal protections for homosexuals.
RL,
“I have no way of knowing if you have read the sources I suggested, and I certainly feel that they do more justice to the subject than some small synthesis that I might produce by a few lines here.”
So synthesize more than a few lines for “the subject.” Concentrate on your argumentative points rather than the superlatives surrounding it. Own your argument. Don’t worry about me.
“In a government of, by and for the people how can rights or authorities inhere to government servants that do not inherently exist in the individuals that comprise the society?”
This is so poorly written that even after reading it many times I do not know what you mean. Let’s break it down:
“In a government of, by and for the people . . .”
Still with you.
“how can rights or authorities”
What rights, what authorities? You should elaborate on what is really your argument. Are you referring to natural rights? If so, why follow so quickly with “or” authorities?
“inhere to government servants”
I’m pretty sure you want a comma between “government” and “servants.” Not trying to be a jerk, but this is where your lovely question totally breaks down, and informs me that you’re mimicking ideas you thought you heard, or thought you read, but really don’t comprehend. It reads like a bad translation.
“that do not inherently exist in the individuals that comprise the society”
How do you know this, how do you claim that individuals that comprise a society have no existence beyond their individualism?
“Or do you agree with its tacit, self-evident and logical answer and the political repercussions of said logic?”
I see nothing tacit, self-evident, nor logical in your tome of a sentence.
gbk, first I want to say that I do understand how my earlier statement created the confusion that it did. After looking at it aain closely I understand why the term “except” would create the confusion it did. I should not have stated it that way. My oversight. I meant something entirely different as a tried to explain above, although probably not to your satisfaction. I apologize for any confusion I may have caused you.
Now as to your last post, I have no way of knowing if you have read the sources I suggested, and I certainly feel that they do more justice to the subject than some small synthesis that I might produce by a few lines here. Since you have read them, maybe you could put together a rational synthesis of your opposition position.
I do believe that the question I posed earlier, “In a government of, by and for the people how can rights or authorities inhere to government servants that do not inherently exist in the individuals that comprise the society?” constitutes somewhat of a synthesis of my position. Is there some reason you avoided addressing it? Or do you agree with its tacit, self-evident and logical answer and the political repercussions of said logic?
It’s like this:
Another “this is what happens when you f*#k a stranger in the ass” libertarian scholar.
Read my links, they say, as if I’ve hadn’t years ago. Over time they all show the same trait — that of referencing information yet being incapable of synthesizing their own arguments from the tattered sources they demand I read, again, and again.
GBK wrote
“And how is the appendage of your statement, you know, the words after “except” deemed valid?”
Take the time to read Spooner and Bastiat at the links I provided above and the statement will make sense.
The exception of actions that “either harm, endanger or threaten the rights of others” is legitimately based upon the legal theory that individuals have a right to self defense and to join together to defend one another. Where an understanding and community conciousness of the right to self-defense is seen as the only legitimate basis for government, i.e. controlling the actions of others, and for remedy (punishment and sanction) for the violation of individual rights then there would not be 1000 different interpretations of law and the consequent systems engendered thereby. The law would be much simpler and crime would only consist of actions that in fact harmed or violated the rights of others. For many years that was the way crime was defined in this country. Without a damaged party, the state could not prosecute, and no guilt could attach.
In a government of, by and for the people how can rights or authorities inhere to government servants that do not inherently exist in the individuals that comprise the society?
Gene H. wrote, “I’ll ask you again: Name a specific harm that recognizing homosexual’s equal rights and equal protection under the law causes to you or anyone else?”
Well, where a person has deep convictions of the wrongness of a particular activity it is impossible to force them to accept that someone has a right to engage in that activity. Even if such a persons convictions are mistaken, until they recognize for themselves that they are mistaken, attempting to force them to relinquish their free agency and recognize that someone has a right to do what they percieve to be wrong and immoral is destructive to their very psychological wellbeing. Further more where this is accomplished by forms of law, such persons are likely to lose respect for the institution of law and those in positions of authority, leading to an inevitable lack of respect for the same.
Such actions of force will inevitably operate to create even more rebellion toward institutions of law, likely leading to additional harm to the remainder of society.
You can’t force people to think what you think they should think. You can only attempt to reason and hopefully persuade them to change.
The idea that a government or a culture could accomplish by force of law thought programming on a free people is draconian.
Randy Lee,
“You don’t need 1000 court systems when people are willing to make the honest admission that they neither individually nor corporately have any right to control the actions of others except where those actions either harm, endanger or threaten the rights of others.”
And how is the appendage of your statement, you know, the words after “except” deemed valid?
Otteray Scribe wrote:
“Section 18 of the New Mexico constitution: “Equality of rights under law shall not be denied on account of the sex of any person.” ”
This section says nothing concerning the issue of sexual orientation of an individual. Rather this section explicitly, by its very language, has to do with the issue of gender.
Bron asked, “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.”
Not sure in what sense you mean to characterize Spooner as an anarchist. He was what is better described as a voluntaryist. He believed in governments having delegated powers and authority limited to the defense of the rights of the individual. He didn’t believe that a government of the people, by the people, and for the people could lawfully delegate authority to an institution of government where such authority did not first naturally inhere in the individual. He did not believe that mobs could legitimately authorize institutions of law to do things that none of the individual members of society had a right to do. He did not believe that an agreement by a majority to a claim of authority could give rise to either its creation or its legitimacy.
A simple example is that no individual has the right to create and impose their currency medium on others. Likewise then, a government of the people is without legitimate authority to create a currency medium and impose its circulation upon others (legal tender laws). Spooner believed like Bastiat that the sole duty of government was to defend individual liberty and the rights of individuals. He was against plunder of the individual by the state.
You don’t need 1000 court systems when people are willing to make the honest admission that they neither individually nor corporately have any right to control the actions of others except where those actions either harm, endanger or threaten the rights of others. People will never admit this until they overcome the cultural, i.e. cult, programming of their youth.
Before you try to label Spooner as an anarchist in what appears to be your attempt as an ad hominum attack upon his person, why don’t you attempt to put forth a cogent argument against his actual positions.
When you say, “It isn’t going to work…”, just what is the ” it” that you refer to?
If it’s some statist order that you speak of then I hope it doesn’t work because it’ has been far too long that men have attempted to organize society by force and the initiation of aggression. Can you give me just one example when it is ever proper to initiate agression against another human being? It’s time for humanity to grow up.
David wants to argue law, he can explain the legal reasoning to get around this. I don’t usually have trouble with the English language, but I must be missing something here.
Section 18 of the New Mexico constitution: “Equality of rights under law shall not be denied on account of the sex of any person.”
I don’t see partial rights, sorta-kinda rights, religious preferences or beliefs, morality, immorality, reproduction, the Kama Sutra, or a chicken sandwich.
http://sos.state.nm.us/pdf/2007nmconst.pdf
David,
“I have argued to grant them rights that pertain to the nature of their union.”
Yes you did — you referred these rights as “roommates.”
DavidM wrote: “I have argued to grant them rights that pertain to the nature of their union.”
bgk wrote: “Yes you did — you referred these rights as ‘roommates.’ ”
No I did NOT! See, this is an example where you are not reading what I write superficially and you see what you want or expect to see rather than what I actually said.
I wrote about defining rights for same sex unions that would make the union something MORE than roommates. Roommates do not have the same rights as a couple bound together in a domestic partnership.
OS,
I did not know that about the New Mexico state constitution. Thanks for making my day complete by learning something new.
New Mexico is in the news again. Writer of this story (Meteor Blades) is a professional journalist, by the way.
http://www.dailykos.com/story/2013/08/26/1234039/-Second-New-Mexico-judge-rules-that-counties-must-issue-marriage-licenses-to-same-sex-couples
David,
And I’ve destroyed your “legal” arguments time and again when you play at being a lawyer, software boy. You have ONLY offered a religious definition of marriage as rebuttal when the legal definition has been pointed out time and again and your dreadful cherry picking of case law and lack of comprehension of what constitutes actually valid state interests in marriage.
I’ll ask you again: Name a specific harm that recognizing homosexual’s equal rights and equal protection under the law causes to you or anyone else?
That’s the threshold in the legal argument.
Neither you nor anyone else has ever been able to successfully answer that question. And you haven’t now. Speaking of which . . .
“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.”
The harm to the photographer (or the florist)? Was because they broke the law. The photographers were held to be a business that offered public accommodation and thus were subject to the law. They are free to change their business model so as not to offer public accommodation (like the bakers I described twice above in example) or they can accept that they can’t openly discriminate based on sexual orientation according to New Mexico law without suffering the consequences.
“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.”
1) The law is not taking a side on the morality issue. That’s a religious question and to choose a side is to seek to give one sect advantage over another and contrary to the 1st Amendment. 2) Oh noes! Think of the children! Specious appeals to emotion don’t make a argument, but they do make you look ridiculous. Statistically speaking, 1 in 10 children is born homosexual so maybe by protecting them from people who want to judge them and treat them as second class citizens simply because they are different and “immoral” by standards that are yours and you have no right to force upon them IS thinking of the children. All of them. Including the gay kids.
“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.”
Yet your “differences” hinge upon procreation and diamorphic sex – a religious definition of marriage not a legal contractual definition – so in fact you seek to deny them equal protection and equal rights on a religious definition which is discrimination based in a theological definition. If you really don’t want them to be treated like second class citizens with less rights than heterosexuals? You wouldn’t waste so much of your time arguing a case you cannot win here or in court.
“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.”
Nice straw man you’ve got there. I don’t give a damn if you think like me or not and I don’t give a damn what you personally find immoral or not. Personally I think it’s pretty obvious at this point that thinking isn’t your strong suit. No one is forcing you to change the way you think no matter how repugnant they might find it.
But using the law to keep you from discriminating against fellow citizens for no other reason than you think they are “immoral” – the implication being that they are less than you and don’t deserve the same rights and protections you enjoy as an ostensible heterosexual?
You’re damn right I’m for the use of the sanction of law to prevent and discourage your holier than thou pronouncements condemning others and your efforts to deny them the same rights you enjoy.
Seriously, your “arguments” such as they are have been turned to dust by professional and amateur alike so many times at this point in this forum you are starting to become a parody.
Gene H wrote: “And I’ve destroyed your “legal” arguments time and again…”
Only in your mind. Your arguments are unconvincing. Oxford Professor Finnis was much more convincing.
Gene H wrote: “You have ONLY offered a religious definition of marriage as rebuttal when the legal definition has been pointed out time and again…”
You have never offered a legal definition from common law, only your particular new favorite definition. My definition was NEVER based upon a religious definition. It was based upon what the courts have written in common law, and your stubbornness in not acknowledging that only discredits your arguments. You are confused because many religions also form a similar definition to what had been formed in common law. The fact that multiple sources have similar definitions does not make the legal definition of marriage a religious one. All you have revealed is that your attack on marriage is actually an effort to purge what you perceive to be religion codified in law. In the end, all we have is your prejudice against religion rather than good legal analysis.
Gene H wrote: “Name a specific harm that recognizing homosexual’s equal rights and equal protection under the law causes to you or anyone else?”
Your question is framed like the infamous “when did you stop beating your wife” question. It is sophistry and does nothing to further the conversation or dialogue. I have already told you that I agree with equal protection under the law for homosexuals, and none of my views expressed here violate that standard. Nevertheless, there are many harms caused by sexual immorality, the foremost being to the person who commits the sexual immorality. Your stubbornness to adhere to the John Stuart Mill philosophy of government makes you unable to hear or discuss any view other than your own.
Gene H wrote: “The harm to the photographer (or the florist)? Was because they broke the law.”
Now you commit the logical fallacy of begging the question. The question is whether the law should define a crime of discrimination based upon sexual orientation. You argue that there is no harm because the law makes a punishment for it. That would be like me arguing that the prior to the Lawrence decision, the harm to the homosexual caught in the act of sodomy is because they broke the law.
The problem here is that you are treating a behavior which includes choice as if it were an inborn trait like gender or race. More than that, you create in law a specially protected class of people based upon sexual behavior. While the law seems to skirt this by using the term “sexual orientation,” it is clearly being used to punish people who object to the chosen behavior which is supposedly based upon their sexual orientation. In other words, the law is getting all muddled and unclear, and this will lead to civil unrest as people get more dissatisfied with the ability of law to clearly define right and wrong and the standards of morality for all of society.
If the law could stop at simply decriminalizing sexual choices, there probably would not be much of a problem as most people today are pretty libertarian about sexual choices. However, when you criminalize those in society who choose to use speech to persuade people that what they are doing is wrong, that seriously crosses the line into tyranny and the abuse of the authority of law. When the law forces people to conduct business with those they consider to be acting in a destructive or even criminal way, there is a problem. The law now is calling evil good and good evil. The law treats morally upright people as bigots and haters. When that happens, people will perceive the law and government who creates the law as evil, and rebellion and war is the natural consequence of that. Just look at our American revolution, the French revolution, or any revolution on earth. You can pretend that the revolutionaries are wrong, but it only took about 30% of the people to wage war in this country to change the laws. You may be glad when only 30% of the people disagree with your vision of morality, but from where I sit, that is when it becomes more dangerous, not less. The safer place to be is where we are now where some 50% of the people disagree with your particular standards of morality. The further you push a bad philosophy through the color of law, the more precarious the authority of law will become.
I remember a day when being a lawyer was somewhat prestigious, like being a doctor or teacher. Now, the legal profession is despised and ridiculed by many in the population. Lawyers are the butt of numerous jokes. Lawyers are among the most despised and hated of professions. I remember reading a Gallup poll that showed only 16% of Americans trust lawyers. They always rank lowest in terms of their moral and ethical standards. If this continues, more civil unrest concerning government is inevitable.
David,
“Clearly you misunderstand what I write.”
Maybe it’s what you convey in your writing, have you considered this?
“You interpret something based upon your own world view rather than understanding my position.”
And you just know this through the same ability that allows you to discern other’s desires?
I do understand your position, David. I just happen to disagree.