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
OS,
That is interesting. It also paves the way for the pending lawsuits regarding Full Faith & Credit that are surely to arise from not having uniform recognition of homosexual civil rights clearly protected by Federal law and instead relying on the hodgepodge of state laws.
“Objectivists just dont think equality of outcomes is a metaphysical requirement in a free society.”
Way to really miss the point, Bron. How many times has the logic and legal reasoning of Heart of Atlanta Motel, Inc/ been explained here? This isn’t about equality of outcomes. It’s about public accommodation in the course of an open public offer to do business in the stream of commerce. It’s about equality of opportunity, not outcomes. That outcomes argument is facile at best. The only people who think that equal outcomes are even possible are Communists or Utopians. Not a lot of them around these days. Because Communism and Utopianism, like laissez-faire Libertarianism, is an extremist pipe dream with fundamental errors about human nature as implicit and express premises. So maybe a new argument is needed instead of recycling the same old von Mises gibberish. Because this isn’t about equal outcomes. Legally speaking it’s about equal opportunity (and equal rights and equal protection).
This is interesting:
Amended returns may be filed for 2010-2012 and previously denied taxpayers may apply for refunds, if due.
Link: http://www.treasury.gov/press-center/press-releases/Pages/jl2153.aspx
Gene H:
Actually Objectivism values all human life and heartily agrees with the philosophical proposition of the DOI. Objectivists just dont think equality of outcomes is a metaphysical requirement in a free society. You have every right to fail as you see fit but you are not owed a living by your fellow man based on that failure. Life isnt fair and the antidote is not to cripple everyone else to make it so. Only a deeply disturbed mind would want that for his fellow man.
“Why should a person need to learn to say I’m busy that day?”
Because human dignity has value.
I think that would be obvious to a self-proclaimed individualist, Bron.
Then again, Objectivism requires an underclass which carries with it the anti-egalitarian notion that all men are not created equal and that some – the property class in particular – are more more equal than others.
Which is a pretty reasonable position!
David,
All those criticisms may be perfectly valid. My only argument is that the state can validly regulate conduct outside of situations in which people cause direct physical harm to others.
Vestal Virgin
Vestal Virgin wrote: “My only argument is that the state can validly regulate conduct outside of situations in which people cause direct physical harm to others.”
I agree with you on this. However, government does not have a blank check, and there is responsible government action and irresponsible government action. Laws should attempt to reflect natural law, and positivism should be approached very conservatively. Regulations should be the fewest needed to achieve objectives. People elected to the legislature usually look for what bills they can create. Nowadays, I think they should focus on looking for laws they can repeal. We have way too many laws and regulations.
Bron,
It’s interesting information. I especially like the guy’s name. 🙂
But, I respectfully disagree that the imposition of an income tax is meaningfully different than the imposition of other kinds of taxes in past eras. According to this article, taxes in Sumeria and Egypt were paid in livestock or time spent in service to the king.
http://www.upenn.edu/almanac/v48/n28/AncientTaxes.html
Ownership of livestock equals time and effort spent farming. Service to the king is direct contribution of time and effort. Income is merely the conversion of time and effort into money. So income taxes are not qualitatively different than the other kinds of taxes.
Vestal Virgin
V.V. wrote: “So income taxes are not qualitatively different than the other kinds of taxes.”
FEDERAL income tax is exceedingly prone to corruption of our entire government system. This is what has happened to us over the last 100 years. Now States approach the Federal government with hat in hand hoping for some of the money. The love of money is the root of all evil in government.
The 16th Amendment should be repealed and replaced with a more fair taxing system based upon commerce rather than income.
vestal virgin:
the income tax is only about 100 years old. When it started, most people were exempt and the very wealthy paid less than 2% of their working income.
“In 1909 progressives in Congress again attached a provision for an income tax to a tariff bill. Conservatives, hoping to kill the idea for good, proposed a constitutional amendment enacting such a tax; they believed an amendment would never received ratification by three-fourths of the states. Much to their surprise, the amendment was ratified by one state legislature after another, and on February 25, 1913, with the certification by Secretary of State Philander C. Knox, the 16th amendment took effect. Yet in 1913, due to generous exemptions and deductions, less than 1 percent of the population paid income taxes at the rate of only 1 percent of net income.”
Republicans, stupid now, stupid then.
Thank you so much, OS! 🙂
V V,
Done, at your request.
*with each new generation
David,
Because assuming lack of distortion by a smaller entity within the group, the group votes to impose a tax on itself for a cause it deems worthy. Inevitably there are some who don’t agree, but being on the losing side of self-imposed taxes is the cost of membership in the group, which presumably provides other advantages that the opposing individual finds compensating value in. Membership in the group comes with the understanding that the group will act as a corporate entity in this way and impose on individuals. Each generation could consent anew to these conditions as they come of age, but that would mean starting all over and relearning wisdom acquired by previous generations with each generation, which would be awfully burdensome, so they don’t. You sign on by being born.
VV
V.V. wrote: “Membership in the group comes with the understanding that the group will act as a corporate entity in this way and impose on individuals. Each generation could consent anew to these conditions as they come of age, but that would mean starting all over and relearning wisdom acquired by previous generations with each generation, which would be awfully burdensome, so they don’t. You sign on by being born.”
Another way to look at it is that successive generations get greedier and greedier until government becomes the plunderer that is no different than a Bernie Madoff or the mugger on the street. The citizenry are like the proverbial frog in hot water, not fully realizing the danger being imposed upon them.
I’m not sure that Spooner’s metaphor of us being born into slavery today is so far off from the truth.
Gene H wrote “They simply learned to say “I’m busy that day . . .”
David M wrote “The judgment results in loss of freedom to one party, and it gains no additional freedom for the prevailing party.”
David M is right. No matter what you may think of interracial marriage or gay marriage [I personally have no qualms about either being a live and let live individual] forcing a particular belief through the use of the courts is wrong.
A person has a right to be a hateful bigot and if they want to deny service that is their right to stupidity.
Why should a person need to learn to say I’m busy that day? Why cant they say I disagree and cannot provide service because of my beliefs? The down side in saying you disagree is the judgment of other people who may disagree with your beliefs and who will refuse to do business with you.
These laws dont allow people to take informed decisions about who they are dealing with because they end up pushing the bigot underground. Now you can say the bigot would go underground anyway to avoid loss of business but then why do you need a law to force the bigot to do what societal opprobrium will do?
And I guess therein lies the rub, if men were angels we would not need laws to protect other men.
How do you maintain a free society if you are constantly making laws which force other people to tolerate that which they cant abide?
Why is business different than choosing who to have a beer with? In each case it is individuals dealing with individuals for mutual gratification. If one party doesnt want to interact, why is it government’s obligation to force one party on the other? We become children whose parents force us to play with children we dont like. Our judgment is replaced by the collective judgment of our “superiors”, that is not freedom. Punishing someone for thinking a certain way, no matter how off base they may be, is wrong.
Moderators,
If possible, I would like the two comments where I inadvertently linked to my personal blog through my user name, to be deleted. It was my mistake. If this is not possible, it’s all good.
Vestal Virgin
Randy,
The characteristics of hunting and gathering societies prior to the agricultural age can be inferred from the characteristics of modern hunting and gathering societies which were studied by anthropologists in diverse parts of the world before they all but disappeared in the latter half of the twentieth century and in this century. Sure this suffers from the weakness of all inferences. We don’t really know. We weren’t actually there. We can’t really say for sure. Nonetheless, we’re far better positioned than Spooner was, as people living in the twenty first century, as beneficiaries of the modern science of anthropology, to make statements about the human past beyond that which was recorded in the last few millenia. Spooner died just as modern anthropology was getting its start. His writing is a sheer act of political philosophy. Interesting, useful as a model, useful as a starting point for tangential thoughts, but not actually true, not actually real, not based on anything that ever actually happened.
With regard to your poor elderly woman hypothetical, I think it’s perfectly acceptable that a state would tax its citizens for the benefit of impoverished elderly people, in the absence of effective private action. Regardless of whether it could be mapped out mathematically or not according to some extremist idea about “rights”. I would cite this hypothetical as the perfect example of the brutal inhumanity of extreme libertarianism.
I don’t think the morality argument helps you, because lacking a standard to determine reasonableness, the exception would end up so arbitrary and personal as to swallow the rule, and where else could a standard be derived, but from what was currently acceptable?
I read the Bastiat, but I disagreed.
Vestal Virgin
V.V. wrote: “I read the Bastiat, but I disagreed.”
One line of thought from Bastiat was the idea that if an individual forces someone to give them money under threat of force, we call that theft. What happens when a group of people do the same thing? Still theft. When a government does the exact same thing, now it is not theft? Why not?
Please offer your comments V.V. to this line of thought.
David,
Thanks for your thoughtful comments.
For my own part, I understand that governmental power gets distorted, co-opted, and re-directed on behalf of smaller elements of the voting citizenry as well as particular individuals. But to say this happens whenever the law compels or restricts action outside of direct threats to life or physical harm, as Randy does, is a fundamental mistake. That puts George Washington, Abraham Lincoln, and Martin Luther King in the same box as Genghis Khan, Tamerlane, and Mussolini.
The extreme libertarians posit this reality that has never existed, can’t exist, and won’t ever exist, and then feel aggrieved because it doesn’t currently exist. What life about and what it’s always been about is negotiating the boundary between the individual as an individual and the individual as a member of the group, not to deny wholesale the group element of human nature. What was once obviously fair and the source of reciprocally self-interested behavior in hunting and gathering societies becomes obscured on the larger scale of agricultural and industrial societies where roles are specialized, lives are compartmentalized, and reciprocal self-interest is harder to see from the individual level. So, the law steps in to compel fairness and freedom, or promote commerce that accrues to the economic benefit of everyone, such as imposing a duty on innkeepers to accept travelers where there would be no harm to the innkeeper, or the totally crazy thing that George Washington signed into law called the Coinage Act.
These guys claim to be in favor of freedom, but they are not. Because in the name of opposing written law, they would give up minorities to the de facto tyranny of the majority. They would allow the majority, acting in concert outside of the law but with all of law’s force through unified action borne out of shared culture and shared ideology and shared prejudices, to restrict the economic freedom of disfavored groups.
That might be the Old South, but that ain’t America.
Vestal Virgin
Jesus may be able to do many things but dictating American statutory and common law ain’t among them.
If God is angry about a particular NM Supreme Court Ruling I haven’t seen him go Old Testament on New Mexico’s justices just yet.
And that’s the truth (raspberry sound)
Vestal Virgin questions:
“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?”
Not sure I can answer that. It appears at least in the written historical annals of history that the uncivilized nature of mankind has operated to deny free agency at every turn. That doesn’t mean that a state of free agency isn’t the best option. Controlling free agency by utilizing the initiation of force for centuries doesn’t seem to have a very good track record, if measured by whether we are any more civilized today.
Vestal Virgin writes ” 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.” [Really, what is your source of this revelation?] “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.”
How do we know any of that?
V.V. continues, “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?” Not grounded in reality. Really. What constitutes reality? If you are born a member of a cult, does that establish your reality forever? If you are born in a culture, i.e. nation cult, that is organized by the initiation of aggression upon each other, should that be accepted as reality?
V.V. continues “Human beings exist both as individuals and as members of groups, ….”
Yes we exist as individuals and as members of groups, however the group can not lay claim to rights that the individuals do not possess. Let’s say you want to help an old lady financially, and would like others to join you. Do you have the right to go door to door and force others to contribute? So how do you and others that want to help appropriate the right to force others to contribute? Democracy? De-mob-crazy? Do you believe the might imposed by numbers makes right?
VV questions, “Did you open up Squeeky’s link, above? [YES, I DID] 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. [NOT SURE THAT IDEAS OF SOME GOLDEN AGE OF THE PAST EXIST IN THE MINDS OF ANY LIBERTARIANS. NOT THE ONES I KNOW ANYWAY.]
The article is extremely enlightening. Basically it points out, in the case of innkeepers, that where a hotel owner professes to serve the public he assumes the capacity of a public servant. At footnote 98, “(1911) 24 HARv. L. RE.. 239. It is there set down that ” . . . the mere interest of the public servant should be no excuse …. Engaged in a public undertaking, the innkeeper can justify his failure to perform it only on grounds in which the public is interested.””
The public has an interest in seeing that rights subject to protection by the first Amendment to the Constitution are protected.
The article begins by pointing out that historically “Monopoly has been pointed. to as the parent of this public service duty. It is argued that necessity for a service brought upon those dispensing it a duty to serve the public, and that the division of business into public and private was based on economic grounds.4 This argument is attacked on the ground that the cases establishing the obligation make no allusion to monopoly.5 In fact, historical evidence shows that while common surgeons, barbers, and victuallers were under the obligation of indiscriminate service, there were numerous practitioners in these trades.6 Moreover, not the innkeeper, but the common innkeeper, was regarded as a public servant.7
“It would seem, therefore, that it was not the nature of the service, but the extent of the undertaking that determined the public or private character of a business. The explanation finding most support is that the legal duty to serve all was the result of a voluntary assumption of the public service obligation.8”
“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. As soon as a man dedicated his business to the service of the public, he waived his privilege of discrimination.”
Now it is noteworthy that not every innkeeper, but rather the “common innkeeper, was regarded as a public servant.” The obligation to serve all was incident not only to common innkeepers but at times “common” tradesmen and servants. A tradesman or servant was “common” if he professed to serve all. It might be argued that merely having a sign in front of an establishment constitutes such a profession to serve all.
However, if you had not already relinquished your private character by applying for Social Security, and if along side your business sign, or conspicuously placed elsewhere, there was another designating the business as a private establishment reserving the right to refuse service, the assumption of a public duty could be legally avoided. Words such as PRIVATE ESTABLISHMENT, WE RESERVE THE RIGHT TO REFUSE SERVICE would do the trick. In todays litigious society however such words could open one’s business to numerous lawsuits and even after sucessfully defending your rights the loss of time and finances expended would have a tendency to make most people succumb and go along to get along.
In speaking of the right of common innkeepers to reject a guest for cause, the article also mentioned that “Any rule is reasonable which tends to prevent immorality or misconduct that may be offensive to other inmates. Thus a prohibition against women entertaining men visitors privately has been held proper.” Now determinations of morality are not the sole province of the law or the legal profession. Each of us have the inalienable right to determine for ourselves what is right and wrong and whom we will associate with either privately or publicly, where we have not assumed the character of a public accommodation, thereby waiving our private rights. Even the 1st Amendment to the Constitution guarantees that Congress shall make no law infringing these rights. So our own personal rules of what is immoral conduct would give us legitimate cause to reject doing business with persons we choose to reject.
Just wondering Vestal Virgin, if you read Bastiat’s The Law? A reading of Spooner alone is really insufficient to gain a good understanding of the proper role of government.
Said the cricket.