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
What Gene said. You either have full equal rights for all, or none of us are truly free.
rafflaw wrote: “You either have full equal rights for all, or none of us are truly free.”
But in this case with Elane, you are not on the side of full equal rights for all. The same sex couple still had their ceremony with another photographer. There was no harm caused to them by Elaine not doing the photography for them. What you guys support here is not equal rights, but special rights for a group of people to be able to use the law to hurt those who think that their sexual behavior causes harm. Why would this particular class of people be allowed to use the law in an unequal way like this? The law here works only to the advantage of the homosexuals to enable them to cause harm to those with a different political and religious persuasion. The judgment results in loss of freedom to one party, and it gains no additional freedom for the prevailing party.
“No, No, No, its not about that. Its about people who want to get married, who also want to compel the performance of others in their wedding who would prefer not to perform or be a part of the same. Its about one group of people wanting to deny the free agency of others.”
No, No, No, it’s about equal rights. Its about people who want to get married, who also want to have the same rights and protections as heterosexual couples. You know. Just like those interracial couples in Virginia who couldn’t get married. And you know what happened after that was legally recognized as protected? For every backwards redneck bigot that didn’t want to perform a ceremony or work for an interracial wedding for an interracial couple, there was at least one or more who was more than willing to have that business. The rednecks? They simply learned to say “I’m busy that day” instead of “Piss off, nigger lover” or beating someone to death because they disapproved. Those that didn’t? Went to jail and were fined.
And the sky did not fall.
RL
“All laws are supposedly written to foster respect for others.”
Supposedly, foster, respect.
Sure, Randy. That’s why laws are written, so that you can supposedly foster respect.
There’s no other conceivable reason.
David,
“. . . Jesus, who spoke in parables so that only certain hearers would be able to understand.”
So your Venn diagram does not include me, nor the multitudes that jesus supposedly spoke to.
That’s ok with me. I’ll stick with Groucho Marx.
Otteray Scribe wrote “Randy, Please stop and realize these laws would never have been passed had people treated others with respect and dignity across the board.”
That could be said for any law. All laws are supposedly written to foster respect for others. But due to the free agrency of humans in general, almost all of them produce contempt for the lawmakers and the laws in the minds of at the very least some segment of society.
Otteray Scribe wrote “Injustice and unfair treatment will eventually cause victims to react. If peaceful means don’t work, expect an escalation.”
I agree, partly. I don’t see the imposition of discrimination laws as a peaceful means. The threat of sanctions or jail by armed men and women isn’t very peaceful. But injustice and unfair treatment along with a denial of the free agency will definitely cause victims of this denial to react. And the continued denial of the free agency of humankind will absolutely bring about an escalation.
Otteray Scribe wrote “This is about people wanting to get married.”
No, No, No, its not about that. Its about people who want to get married, who also want to compel the performance of others in their wedding who would prefer not to perform or be a part of the same. Its about one group of people wanting to deny the free agency of others.
lol
David,
“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.”
Yes, and yes.
David,
“And unless you are Jesus . . .”
I’ve never claimed to be Jesus.
Bron,
Unless you’re a photographer.
gbk wrote: “Unless you’re a photographer.”
Good one. And unless you are Jesus, who spoke in parables so that only certain hearers would be able to understand.
GBK:
“It is the author that assumes the obligation of clearly, concisely, and unambiguously presenting their thoughts. It is not the obligation of the reader to “discern the desires” of what the author fails to convey.”
that is really good advice.
I guess that means that “emanations from penumbras” are out of the question?
David,
“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.”
Well then, David, let’s take the first half of the above quote and see what it says:
“See, this is an example where you are not reading what I write superficially . . .”
I’m pretty sure you meant to say: see, this is an example where you are superficially reading what I write . . .
But you didn’t write that, did you, David?
No, you didn’t; your writing accuses me of NOT reading what you write superficially. Can you discern the difference?
Actually, if you just got rid of the “not,” and your phrase read: this is an example where you are reading what I write superficially, I could be fairly sure of your meaning. But, again, that’s not what you wrote.
I must admit that you’re correct in that I view the bulk of your long-winded writings as superficial, but I do read them, and take them at their word.
It is the author that assumes the obligation of clearly, concisely, and unambiguously presenting their thoughts. It is not the obligation of the reader to “discern the desires” of what the author fails to convey.
gbk – yeah, I messed up my edit when I reworded that sentence. My mistake for sure. I thought about posting a correction, but I thought you could figure out what I was trying to say easy enough. And you did.
Bron,
rANDY LEE:
I think what you are trying to say is that if GBK wants to get fu99ed up the a$$, it is no business of yours. But if GBK did not want to get fu**ed up the a$$ by a 300 lb lineman for the Chicago Bears, then he has a right to defend his a$$hole and that government is instituted to protect a$$holes from 300 lb lineman.
Furthermore if he wants to pay with gold to be f**cked up the a$$, he has every right to do so.
Do you think GBK will understand now that the synthesis is in his vernacular?
Randy,
When and where was this time and place when people had “free agency” to associate only voluntarily with others and not to comply with group restrictions except where harm to another person was the consequence? Even in hunting and gathering societies, which constitute the overwhelming bulk of human history (95,000 years?), there were rules one had to comply with. Where there weren’t rules, there was social pressure, which was informal enforcement of prior agreed upon values or rules, and where there neither of those, there was immediate self interest as a strong disincentive to do as one liked. Even if Spooner is taken as a model for describing the tension between the individual and the group, isn’t its usefulness limited, given that it’s not grounded in reality, and describes no circumstances that have ever actually occurred? Human beings exist both as individuals and as members of groups, in communitarian and libertarian societies alike, not just as one, and not just as the other. They don’t exist as Robinson Crusoes who conjured themselves into existence one day and who have come together for mutual benefit only to have their voluntary self-governance usurped by bad people, as Spooner would have it.
Did you open up Squeeky’s link, above? It says public accomodations laws for hotels are older than the United States, which one would expect, since the idea that there was some golden age of pure, free contract exists only in the figment of extreme libertarian imaginations. Innkeepers in England had a duty to lodge travelers barring some exceptions, such as the traveler was unusually filthy, or arrived with a dangerous animal or kicked down the inn door on the way in, etc. Stuff like that. Here’s a sentence from the article: “One who entered an occupation and professed to serve people indiscriminately, held himself out as ready to accommodate all, and came under judicial compulsion to abide by his undertaking.” Then, from further down in the article: “At common law no one could be excluded from a hotel solely because of his race, color, or creed. By professing to serve the public, the innkeeper invested everyone with a common right to use his inn. The essence of a common right is equality, and equality precludes discrimination.”
Vestal Virgin
V.V. wrote: “Human beings exist both as individuals and as members of groups, in communitarian and libertarian societies alike, not just as one, and not just as the other. They don’t exist as Robinson Crusoes who conjured themselves into existence one day and who have come together for mutual benefit only to have their voluntary self-governance usurped by bad people, as Spooner would have it.”
I tend to agree with you to some extent. Spooner seems to oversimplify society almost to the point of becoming an anarchist.
Theoretically, having a civil society should create a synergism where the individuals collectively become more than the parts. To some extent this happens in reality when societies first come into being. Villages and cities seem to bustle with economic expansion early in their development. But then something else happens along the way. Economic disparities happen. Certain individuals become marginalized in society. Some of these might become a protected class of people and called a minority. Go to the downtown of any city of America, and you usually find individuals struggling economically. A certain segment of society does quite well in the skyscrapers and government buildings, but the small businesses downtown and the residential areas usually find themselves in a struggle. The people working in the skyscrapers often start moving away from town. At lunchtime the wealthy step out of their skyscrapers to go to lunch. As they do, they pass their hungry homeless neighbors, sitting on benches or just wandering the streets, without enough money to even buy a sandwich. Why does this happen? Is this not a social injustice we should be concerned about? Ideally, if individuals took it upon themselves to care for their neighbor, there probably would not be a problem, but they don’t, so what do we do? Shouldn’t government try to fix this problem? They don’t because the same people passing by their hurting neighbors are the same people running the government. Instead they pass laws to oppress the poor even more. No more panhandling. No washing peoples car windows as they drive by. No passing out flyers trying to get business. The list of oppressive laws goes on and on. So what is the solution? I don’t think it is government, because the greedy guys running business do not care and are not about to care. Any money they raise will not resolve the problem. Sometimes they do pass laws that seem to address the problem of the marginalized, but nothing ever gets fixed because ultimately their efforts are not really sincere. It is really about creating the illusion that they are doing something about the problem.
It would be wonderful to live in a moneyless society, where everybody applies themselves to helping solve the problems of their neighbor. Nobody pays one another, we just labor for each other out of love for each other. It sounds great, but nobody will ever do it. People are too selfish. They have to have that money that measures the differences between the hard working and prudent from the lazy and foolish. And despite Spooners objections, that system works in a rickety wagon kind of way.
Randy,
Please stop and realize these laws would never have been passed had people treated others with respect and dignity across the board. The only reason a special interest or lobby group is formed is when a group feels they are being treated unfairly solely because of some physical characteristic they can’t change.
Injustice and unfair treatment will eventually cause victims to react. If peaceful means don’t work, expect an escalation. This is about people wanting to get married. In an earlier time it was about being able to go to school without a police escort, or ride the bus in the seat of your choice.
Gene H wrote: “Again, no one is forcing anyone to think any thing. Did the Civil Rights movement force people to stop being racist? Nope,…..”
I disagree, the legal force of Civil Rights legislation and the subsequent school programs have operated to force both integration and acceptance of persons of other races. Some bigots remain but there has been a shift in the degree of racism in this country. The fact that an African American president was elected is proof of my point.
The power of law and some degree of submission to the same by the citizenry of a nation operate together to change public opinion. It might be argued by some that the end justifies the means, yet it still amounts to the initiation of force/aggression as a means to shape public opinion. This is very inappropriate as it fails to respect the free agency of humanity. It is more appropriate to be patiently willing to allow the evolution of acceptance among the races to occur as a result of education, free interaction and persuasion. A lack of such patience becomes fertile ground for blowback; and the seeds of racism are even more likely to germinate where the free agency of the individual is percieved by them to be under forced arrest or attack.
You write: “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.”
Laws should never restrict action unless that action is directly harmful to another human. Where the restricted action results in arresting the free agency of one human without being able to show a direct harm to another, such restriction is unwarranted. If we are equal, and we are, then I remain free to exercise agency of choice until my actions, not inactions, harm another. For instance, I may choose not to contribute to the welfare of a needy person, but my inaction is my choice, and neither the needy person nor those who choose to contribute have any authority to compel me to contribute. To utilize the state and the social programs and laws to compel me to participate in some egalitarian act, is to violate my free agency, ignore my human dignity and convert me into a state of compelled performance.
Those who are serious about protecting human dignity, removing economic tyranny, fostering liberty and justice will recognize that the imposition of force on the free agency of others is not a viable method.
If they are truly upset about economic tyranny then why are they not upset about the banking cartels and the Federal Reserve System that exercise a monopoly on the creation of credit, and the power of the state that compels the utilization of the same via legal tender laws. This fraud and injustice is too large to fully explain here.
Gene, the 14th Amendment was never lawfully ratified and the story is set forth in a case titled Dyett v. Turner. See http://famguardian.org/Subjects/LawAndGovt/Citizenship/Dyett/dyett.htm
The Justices of the Supreme Court of Utah recognized the fact that the 14th Amendment was never lawfully ratified.
With these historical injustices staring us in the eyes, many persons today choose to ignore these facts in an attempt to utilize the 14th and establish precedents such as Elane. Honest men would never do such a thing. Elane is bad law, and one day it will be overturned. I doubt that the attorney for Elane argued that their private business was not a public accommodation. I explained this in an earlier post. Failure to properly do this would naturally result in this final adverse decision.
Randy Lee wrote: “To utilize the state and the social programs and laws to compel me to participate in some egalitarian act, is to violate my free agency, ignore my human dignity and convert me into a state of compelled performance.”
Very articulate and excellent point.
It is strange how the Republicans ended slavery, and now the former slave owning Democrats have to make slaves out of all society through their socialist and anti-discrimination ideologies. Strangely, they use the very same laws that the Republicans passed, twisting them to apply them in ways that were never intended, in order to accomplish their objectives. The word “equality” means one thing to me and another thing entirely to others. They deny reality in their quest to force others through the authority of government to ignore differences in nature and give favoritism and special protections to their ever growing list of protected classes of people. Through this process they actually create the one thing they claim they want to end: a class based society. I yearn for the day that we can get rid of all these labels and all be one people to whom all the laws apply equally.
Randy,
Sorry, but, I think you have no idea: (1) what majorities and minorities are and how they come about; (2) what prejudice is and how it comes about; and (3) what a government is and why it comes about. There are whole academic fields missing from Spooner’s description of human reality. Like its counterpart Marxism, it’s appealing in its artificial simplicity, but it’s just not true.
More later.
Vestal Virgin
Vestal Virgin writes:
“He [Spooner] 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. ”
“…. 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. ”
I agree that damage to the dignity of humans is probably the costliest consequence to our freedom. think about it; majorities are nothing more than groups of individuals that agree upon some viewpoint. In the absence of proof that this agreement was obtained via coercion and duress, we must assume that this majority evolved as a result of the free agency of humankind. This capacity of “free agency” enjoyed by every free person should never be commandeered by any other entity. If so, then it ceases to be free.
Just as we here on this thread work to persuade others of our position, we do not make the mistake of forcibly denying others free agency to decide or act for themselves. We leave that sinister duty to the state. Or at least those who do not vote do not make the mistake. The state then forces we free agents by threat of sanction or jail to abandon our free choice and conform to the dictatorial policies of a given age.
But the state, the government, really doesn’t exist. It is merely a group of other men and women with guns that assume authority to compel others to forfeit their free agency. But all along they attempt to convince you that you are free.
As a free agent the homosexual chooses to parade their gay pride for all to see. If groups of homophobes parade their repugnance for gay lifestyle they are deemed haters. Why does one group enjoy the free agency to parade their feelings for the lifestyle while the exercise of free agency of another group is seen as hate? Do we see heterosexuals parading their pride that they are straight? No.
If as gays claim, by some accident of birth you were born gay, that is nothing to be proud of any more so than being straight. If however your homosexuality is the result of your choice then you could egotistically take pride in the same.
What this all comes down to is that homosexuals want to utilize the power of the state to protect their free agency to engage in their lifestyle and parade their pride, while denying others the free agency to reject or shun them at any real level. Why should any of us wish to utilize the power of the gun to forcibly cause another to abandon their free agency?
This approach does nothing to unify people. The rational and unifying approach is to engage the conversation and rationally persuade our opponent of our position. Asking the state to force others on our behalf will only result in a loss of respect for the institution we call the state and an added loss of respect for each other. People respect government when they get what they want and hold it in disdain when it fails to provide their wishes. What a sad reality!
Finally, you speak of damage to the dignity of a person. Well the denial of free agency under fictions of law operates to guarantee damage to the dignity of persons, and not just a minority, but the majority as well, as it reduces them/all to a state of compelled performance under color of law. Wasn’t compelled performance abolished by the 13th Amendment? Unless you can force them to work under the guise of this Elane decision, right?
Or for money you create out of basically nothing, a little paper and ink. How many lives could you appropriate if you could force them to accept your paper and ink?
Oh I forgot, we have to pay for our egalitarian society! And let’s call it justice.
GBK, since you percieve my question to be poorly written, I will see if I can explain it at another level. .
the question was: “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?”
“In a government of, by and for the people . . .”
At this point you state, , “Still with you.”
Then with reference to “how can rights or authorities” you query “What rights, what authorities?”
I am speaking of all rights and authorities in general. For instance, here are a couple of examples: the right to possess and control property and the authority to defend one self and their property.
These are rightful attributes and authorities that are considered inherent in mankind by everyone I have ever met. Maybe you are the exception. These atributes have been historically considered inalienable although oftentimes violated nevertheless.
Then you state “You should elaborate on what is really your argument. Are you referring to natural rights? If so, why follow so quickly with “or” authorities? ”
Because in a government of, by and for the people, the people themselves are the government, they are the actual authority, and those who SERVE in official capacity as presidents, congressmen, policemen and such are SERVANTS subject to conditions of employment, which in this country for the time being anyway include the principles of the Declaration of Independence and the Constitution of the United States of America.
You then query the phrase “inhere to government servants”, suggesting that I should have a comma between government and servants. But such is not the case as government as used here is used as an adjective describing what sort of servants I am discussing.
Now the only rights and authorities that can “inhere” to government SERVANTS are those that can be legitimately delegated. If the people, who are IN FACT the government, don’t possess a particular right or authority then they can not delegate it to one who purports to act as a SERVANT. And the fact that these servants are also human with no special rights or authorities over and above their fellowman strictly limits their authority to what is inherent.
Then you question: “How do you know this, how do you claim that individuals that comprise a society have no existence beyond their individualism?” I never said that individuals could not have existence beyond their individuality. The can exist as a corporate body politic or as a gang of robbers if they so choose. This corporate existence however fails to bestow upon any of them any rights or authorities that they as individuals did not first lawfully possess. If as an individual they had no right or authority to steal, for instance, then acting corporately either as a body politic or as a gang of robbers does not give rise to lawful authority to steal.
Do I still need to spell out the political repercussions of the above logic? Or if you disagree with this, then please tell me what you consider to be the legitimate Source of additional rights and authorities that are oftentimes claimed by government SERVANTS to justify their claims to non-existent right and authority? Creating monetary value and forcing its utilization upon the people is a good example.
My arguments aren’t for you, David.
Your mind is made up. You’re a zealot. I have no illusions that anyone could change your mind.
My arguments are for the audience.
Which is heavily skewed against you.
So who is unpersuaded again?
What is the shape of victory?
And I love lawyer jokes.
Maybe you should go back to the kiddie pool.