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
Vestal Virgin:
I am pretty sure most libertarians have given up the idea of no government, that concept doesnt work. But limited government as designed by the founders worked really well when we had it.
The failure in our society is caused by altruism/collectivism and not by capitalism and limited government. But I dont expect you to believe that, because like Gene H you have been indoctrinated with marxist principles your entire life.
Juliet N:
I dont watch, read or listen to Glen Beck.
Maybe you should lay of Marx and Engles and read some Locke and Bastiat.
Gene H:
“John Galt is the archetypical Übermensch”
he was a character in a romantic novel. And John Carter of Mars wasnt a superior man? At least on Mars, and who can forget Doc Savage.
You just make me laugh.
You do understand the principles behind romanticism, dont you?
Here is a nice article explaining why libertarianism doesn’t work:
http://www.dailykos.com/story/2011/12/29/1049619/-Why-Libertarianism-Doesn-t-Work
The final paragraph: “Libertarianism is a philosophical game played by those without either enough real-world experience of localized, non-state-actor tyranny, or enough awareness of history to understand the immaturity of their political worldview. Unfortunately, the harm they do to the social safety net and to governmental checks and balances is all too real, and all too damaging.”
Some of y’all need to get your news, information, civics and history somewhere besides Glenn Beck. Seriously.
This individual gave this short speech in Washington DC. If the cultists of statism could only hear with their concience and understand what this individual is saying. 15,000 hours of public school indoctrination on young tender minds appears to have worked almost flawlessly to create a state of cognitive dissonance that would have been relished by slaveholders of past eras.
I am sure that some here following this thread are so steeped in the belief of the ‘grand government provider and protectorant’ that really listening to the following will be virtually imposible for them. Nevertheless, if just one individual concience here is freed from the shackles of statist propaganda then my passing this along will be worth it.
http://www.youtube.com/embed/NwztaQgv3-Y
Randy Lee – I have enjoyed many of your posts, but this Anarchy video was a long stream of … well… I’m not sure what to call it other than blasphemy. The guy does not understand the proper role of authority. He sounds angry and full of hate and lawlessness. I felt greatly disturbed within myself, as if somebody was cussing me out with the most vile words imaginable. It was a little better toward the end, and he made some valuable points, but the delivery and ultimate implications sounded like a road leading to chaos rather than understanding.
Here’s a hint: “All animals are equal, but some animals are more equal than others.”
On a related (and I hate to use this word in conjunction with the turgid prose of Rand) literary note, can you guess which animal Galt would be in Orwell’s “Animal Farm”?
Homework will not be graded on a curve.
Bron,
You can say such things all you like, but that does not make them true. John Galt is the archetypical Übermensch, the very Nietzschean ideal of an extraordinary individual who transcends the limits of traditional morality to live purely by the will to power. He is also the exemplar of Objectivism – an allegedly “special” person unbound by society, its mores and its laws based upon those mores.
See, unlike some, I not only read books, but I understand them. More to the point, I understand them in context to the ideas they are based upon. Rand borrowed heavily from Nietzsche. Which is only fitting. She was a sociopath and he was a syphilitic madman.
That a crazy person has a crazy counter-factual definition of and understanding of a world like “equality” is only par for the course.
gENE h:
“Her social structure relies upon the Nietzschean ideal of Untermench ruled by Übermenschen.”
you have no earthy idea what Objectivism is about if you believe that. You are fundamentally and profoundly wrong.
““Equality,” in a human context, is a political term: it means equality before the law, the equality of fundamental, inalienable rights which every man possesses by virtue of his birth as a human being, and which may not be infringed or abrogated by man-made institutions, such as titles of nobility or the division of men into castes established by law, with special privileges granted to some and denied to others.”
“But this is not the meaning that the altruists ascribe to the word “equality.”
They turn the word into an anti-concept: they use it to mean, not political, but metaphysical equality—the equality of personal attributes and virtues, regardless of natural endowment or individual choice, performance and character. It is not man-made institutions, but nature, i.e., reality, that they propose to fight—by means of man-made institutions.
Since nature does not endow all men with equal beauty or equal intelligence, and the faculty of volition leads men to make different choices, the egalitarians propose to abolish the “unfairness” of nature and of volition, and to establish universal equality in fact—in defiance of facts. Since the Law of Identity is impervious to human manipulation, it is the Law of Causality that they struggle to abrogate. Since personal attributes or virtues cannot be “redistributed,” they seek to deprive men of their consequences—of the rewards, the benefits, the achievements created by personal attributes and virtues. It is not equality before the law that they seek, but inequality: the establishment of an inverted social pyramid, with a new aristocracy on top—the aristocracy of non-value.”
“If there were such a thing as a passion for equality (not equality de jure, but de facto), it would be obvious to its exponents that there are only two ways to achieve it: either by raising all men to the mountaintop—or by razing the mountains.”
Ayn Rand
Maybe that will help you.
What I would say is most people dont want to be ruled by anyone, which is what most progressives are all about, power for the sake of power. They are authoritarians who think they are superior, and they think they have some sort of moral authority. As I have said many times before they are hauntingly similar to evangelical, holier than thou Christians. Except their warrant doesnt come from God but from their own deluded sense of their self-perceived moral superiority by virtue of their selflessness and lack of ego/self.
May the gods save us from cretins such as them.
Very cool church sign. 🙂
http://www.huffingtonpost.com/2013/08/29/church-sign-homphobes-message-christian_n_3838306.html
David,
That could be true. Or not. I don’t know.
Sometimes it seems true. For example, it’s possible, to tweak the old saying “hard cases make bad law”, that hard cases make unnecessary legislation as well, that something was working fine, was well regulated by the human incentives associated with it, but for that one hard case that got public attention and inspired a statute.
But I don’t think it’s the case for having ‘sexual orientation’ as a category in public accommodations laws, and interpreting them against a business’s refusal to serve a gay couple.
Vestal Virgin
Vestal Virgin – How often have you been refused service by a business? Any cases of this where you could not find the service you were looking for elsewhere?
David,
I provide sourced and validated definitions a great majority of the time. That they don’t comport to what you want words to mean instead of what they actually mean is a byproduct of your superficial knowledge and understanding coupled with poor argumentation. You own your own ignorance. You shouldn’t be so bitter because I won’t let you make up definitions any more than I let others like Bron get away with that kind of disingenuous style of argumentation. And it’s not just me. This can be a hostile forum if you like to make things up. Like the legal definition of marriage. That is as it should be in a marketplace of ideas: bullshit gets called on fictional and/or otherwise faulty definitions. Why? Because the obfuscation of meaning and the deliberate or inadvertent distortion of the language is a foundational element in the practice of propaganda. “War is peace” as Orwell noted.
And what Juliet said.
Gene H wrote: “I provide sourced and validated definitions a great majority of the time.”
You love to quote the dictionary as an authoritative source for correct thought, yet you fail to recognize that the dictionary is meant only to explain the common usage of words. Your sources are often misused, such as when you quoted a CNN poll to prove that 78% of Americans are pro-choice. By now, Gene, we know your game. You aren’t fooling those of us who actually use our minds to entertain more than one idea at a time.
In this case of talking about equality, Bron tried to engage you on the actual meaning and concepts, but you shifted left and right because in this case, the dictionary utterly fails to inform you. There is no way you can engage Bron on this in an intellectual way without getting your head out of the dictionary and actually discussing the concepts. Why don’t you give it a try? Why not tell him that you agree that people are not all born equal in regards to abilities? Why not tell him that you agree that not everyone should be equal contributors to society? If you don’t agree, tell us why you don’t agree. Parroting dictionaries or other writers is not going to cut it. Tell us how YOU think about it. Use sources only to provide further background of information, which is the way Bron uses them. Most of the time, you use sources as a form of authority for a gotcha moment which exists primarily in your own mind and a few other sheeple.
😀
Thanks, Juliet.
BTW, I hope you’re feeling better.
I am, Gene. And thank you. You kept me entertained during my convalescence.
Bron,
You’ve never been able to distinguish between “created equal” and “equally created” very well. In fact, I’ve never met an Objectivist who didn’t have a problem differentiating the ideas. Probably because it rains on their worship of ego and greed and to Hell with the rest of society attitudes to realize equal opportunity and equal outcome are not the same thing and that just because life is hard doesn’t mean we have to allow it to be cruel to our fellow beings. Gore Vidal once described Objectivism as “nearly perfect in its immorality”. You have no idea how much I hate having to agree with Gore Vidal on anything.
“when you talk about egalitarian, who knows what you mean.”
People who speak English and don’t have a propensity to make up meanings for words for one.
Gene: People who speak English and don’t have a propensity to make up meanings for words for one.
Snap!
And you were evading the point about equal opportunity under the facile guise of equal outcomes, Bron. Plus, anyone who has read Rand knows that this “Actually Objectivism values all human life and heartily agrees with the philosophical proposition of the DOI” is a pantsload. Her social structure relies upon the Nietzschean ideal of Untermench ruled by Übermenschen. That’s about as far from “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” as you can get. Now I know you’re probably going to say something along the lines of “Jefferson should have/meant Locke’s ‘life, liberty and property'” as you have so many times before, but no, he didn’t. Jefferson, familiar with Locke’s work, instead to forgo property (and the inherent materialism that equates to) and instead used the words ‘the pursuit of Happiness”.
when you talk about egalitarian, who knows what you mean. If you mean equality of opportunity, I am all for that. Each person having an opportunity to do whatever it is they are capable of doing.
But if you mean equality in outcomes, then no, I am not egalitarian. For the simple reason that not all men are born with equal abilities. Life isnt fair, if you have a problem with that take it up with “the Laws of Nature and of Nature’s God.”
Bron wrote: “when you talk about egalitarian, who knows what you mean.”
Nobody knows what he means, and he will not be tied down to some definition which will lead to meaningful dialogue. He likes to be unclear and obfuscate the issue so he can pretend to be superior to everyone else. Who on earth can understand anything he says?
I’m with you Bron. The concept that people are created equal refers to their standing before law. A person born of nobility is not granted by his Creator rights that are not also granted to everyone else. We stand before the law on equal ground and with the same rights to pursue life, liberty, and happiness.
Nobody is created equal in the sense of abilities and talents. Some are born with Down’s syndrome while others are as bright as Einstein. Some are born handicapped and cannot dig a ditch as easily as others who develop great physical strength and ability. The racial attributes of blacks usually make them superior athletes. Men tend to be more aggressive and risk takers causing them to excel in business and the marketplace while women excel at having a nurturing temperament essential for raising a family. We could go on and one about how nobody is equal in life if we are talking about talents and abilities. There will always be some who are better producers than others. Some will have a penchant for success while others have a penchant for laziness. Equal outcome? No way. Unfortunately, the race industry harps on how it is the evil rich white man’s fault that poverty exists in the world. Nobody accepts responsibility for making poor decisions, for being lazy, for liking alcohol, sex, and drugs. It is the evil white man, and the more we make him feel guilty for his success, the better for society as a whole. They never expect to get equality, but they sure have fun complaining about how everyone is not equal but ought to be. The word equal is one of the most misused and abused word in politics. The word equal does not mean the same thing to everyone but everyone uses it as if everyone understands what is meant by it.
DavidM: Wow. That was a metric sh/t-ton of neuroses, self-loathing and repression. Please get some therapy. Really.
Gene H:
“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.”
I was answering this. I didnt write it, you did.