The New Mexico Supreme Court ruled yesterday that a photography studio violated the the New Mexico Human Rights Act (NMHRA) by refusing to photograph a same-sex wedding. Vanessa Willock was told that Elane Photography had a moral objection to her gay wedding and sued under the act, which “prohibits a public accommodation from refusing to offer its services to a person based on that person’s sexual orientation.” The case is the latest in a growing number of such conflicts between religious beliefs and anti-discrimination laws. Because this is an expressive activity, it raises some difficult questions under the first amendment rights of the owners of Elane Photography, Jonathan and Elaine Huguenin. As one justice noted in concurrence, this is “the price of citizenship.” However, there remains the question of the right of citizens not to be forced to express ideas or values with which they disagree. That concern rests on a distinction between an expressive activity like photography and a cab or a movie theater in public accommodation.
The decision is well-written and well-conceived. I particularly like the part of the concurring opinion by Justice Richard C. Bosson, writing in concurrence, where he states that the case “teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less.” I happen to agree with that sentiment. However, I remain concerned over the impact on first amendment rights.
The Court made a reasonable distinction between the Huguenin’s conduct as opposed to their beliefs. The law governs conduct in public accommodation. Thus, “in the “world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different.”
The New Mexico Human Rights Council ordered Elane Photography to pay Willock $6,637.94 in attorneys fees and costs after finding a violation of the law.
The Court takes on the first amendment issues directly. The Court drew a compelling comparison to the Supreme Court decision against law schools who had refused to permit military recruiters to participate in their recruitment or placement activities:
Elane Photography’s argument here is more analogous to the claims raised by the law schools in Rumsfeld. In that case, a federal law made universities’ federal funding contingent on the universities allowing military recruiters access to university facilities and services on the same basis as other, non-military recruiters. 547 U.S. at 52-53. A group of law schools that objected to the ban on gays in the military challenged the law on a number of constitutional grounds, including that the law in question compelled them to speak the government’s message. Id. at 52, 53, 61-62. In order to assist the military recruiters, schools had to provide services that involved speech, “suchas sending e-mails and distributing flyers.” Id. at 60.The United States Supreme Court held that this requirement did not constitute compelled speech. Id. at 62. The Court observed that the federal law “neither limits what law schools may say nor requires them to say anything.” Id. at 60. Schools were compelled only to provide the type of speech-related services to military recruiters that they provided to non-military recruiters. Id. at 62. “There [was] nothing . . . approaching a Government-mandated pledge or motto that the school [had to] endorse.”
The problem is that a photographer does more than offer a facility. He uses an interpretive skill and art form to frame an event. This is more akin to a writer or painter as an expressive form. Of course, the problem is that many forms of public accommodation could claim expressive components from bakers to tailors. The Court has drawn a line at the government requiring newspapers or publications to carry opposing views. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 244 (1974) (invalidating Florida’s “‘right of reply’” statute);
Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1, 4, 20-21, 26 (1986) (plurality opinion) (holding unconstitutional an order to allow a third-party group to send out message with a utility’s billing statements). In one such case, Hurley v. Irish- Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995) where it ruled that a parade could exclude a gay rights groups rather than force it to include an expressive component in its banner and advocacy.
The Court again draws a compelling distinction:
“Elane Photography does not routinely publish for or display its wedding photographs to the public. Instead, it creates an album for each customer and posts the photographs on a password-protected website for the customers and their friends and family to view. Whatever message Elane Photography’s photographs may express, they express that message only to the clients and their loved ones, not to the public.”
Yet, a photographer does not simply produce robotic or reflective images. They interact with subjects of their photos and arrange scenes to capture the essence of an event. For that reason, I was not convinced that photographs of this kind are solely the expression of the couple and not the photographer.
My concern is with the speech as opposed to the association. While the couple argued that third parties could conclude that their pictures show approval of same-sex relationships, the Court correctly notes that “They may . . . post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” Yet, I wonder if such statements could be challenged next as creating a hostile environment.
In the end, I remain torn by this ruling. I see the logic and the precedent for the decision. However, I have lingering discomfort with a required expressive act like photography. It is in my view a close question and I would love to read the thoughts of our blog on the issues. There may be no way to accommodate such expressive rights in a public accommodation law. However, that would require deeply religious businesses to either shutdown or engage in ceremonies that they find morally objectionable. It is a tough call despite my long-standing support for same-sex marriage and gay rights. What do you think?
Here is the opinion: sc33687
David,
Your writing is music to my sole.
Grand Pappy wrote: “Your writing is music to my sole.”
ROTFLOL !
Gene H:
Out of curiosity, what animals are gay? I have heard of cows humping other cows and dogs doing the same but that is a dominance trait. It has nothing to do with sexuality. I also think I might have heard of some species who can change sex if necessary.
How do you even know if an animal is gay?
You mean I have to rent to those people? You mean to tell me what I can or cannot do with my motel? Up in arms.
Gene H:
Galt is not a universal prototype, he is an individual. He is her conception of one man in one story. He is not an arhetype of what all men should be. He is her conception of her ideal man, not in the sense of a prototype but as a distinct individual for Atlas Shrugged.
The more you write, the farther off base you become. Objectivism is not about creating perfect men to rule others but about living a good, productive life as a man.
When you understand Objectivism, please let me know.
By the way when I was posting that comment, I figured you would say something along the lines you did, but I posted it anyway.
She thought Plato was wrong about perfect types in other realms.
Romanticism is fiction, now maybe you get lost in your science fiction and have lost your grasp on reality, I dont know. But the idea of Objectivist supermen running around ruling the world is totally at odds with Objectivist philosophy.
“A rational mind does not work under compulsion; it does not subordinate its grasp of reality to anyone’s orders, directives, or controls; it does not sacrifice its knowledge, its view of the truth, to anyone’s opinions, threats, wishes, plans, or “welfare.” Such a mind may be hampered by others, it may be silenced, proscribed, imprisoned, or destroyed; it cannot be forced; a gun is not an argument. (An example and symbol of this attitude is Galileo.)”
But all the socialist litterature I have read is about an elite cadre of socialists defining what is “good” for society. Except they are typically fuk ups, who fuk things up. We see the result of those “elites” in America over the last 4 years plus.
Project much?
Kraaken,
I suggest you read either the case or a study of it: Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241 (1964). That discrimination case hinges upon open offer, public accommodation (that’s the really key point) and the Commerce Clause. The studio in this instant case was found to be offering public accommodation. I re-submit the baker example I offered earlier: a commercial bakery that has facilities open to the public has a duty not to discriminate based on a protected class status, but a baker engaging in private contracts with no public accommodation (like the little old lady who baked my wedding cake from a business with no public accommodation – all of her work was contract, usually be reference) is under no such constraint. She’s free to contract or not with whomever she likes. But once you enter into the realm of public commerce with an open offer for business, you can’t discriminate against protected classes. It’s roughly analogous to the ADA. If you build a private home, you are under no obligation to make the building conform with the ADA, but if you build an office building (by nature meant for public access even if it is an access restricted facility) you have to conform to the ADA. See the distinction?
Mike Appleton:
You certainly are entitled to your own opinion. Which is the one that people who do not like her hold. I have read all of the criticism and even agree with some.
But please, a little more depth. What about her metaphysics and epistomology, her theory of knowledge, her ethics. Please, something of substance other than she was scared shirtless by commies.
I never cease to surprise myself! To me, this should be very simple. The couple asked this particular photographer to take the wedding photos and the photographer refuses to do the wedding. Where there no other photography studios available for that date? Or was the couple simply trying to create a problem? This shouldn’t be difficult at all. If this particular photographer refuses to do the wedding, fine. Go to the next photographer on the list.This would also apply to florists and bakers. If what this Court is saying is that you, as a proprietor MUST serve anyone who walks through your door whether you want to or not, then we have some REAL problems. I know that most of the regulars here thought I would come down on the side of the couple, but in this case, not so much.
I’ll elaborate on that previous post since the Mind Project Fallacy is somewhat more subtle than it appears upon cursory inspection.
The Mind Projection Fallacy is when when one considers the way one sees the world as the way the world really is. It occurs when one relies upon preconceptions and biases color how one interprets evidence and leads to a plethora of bad reasoning, not the least of which are outcome determinism, change blindness and confirmation bias. Both of you are bad about this albeit for different reasons and to different degrees. Bron tends to have his use of the scientific method backwards: he lets his theories inform how he understands facts instead of letting facts inform his theories. He also filters everything through the filter of Objectivism. You, on the other hand, ignore factual evidence and insist that the natural world isn’t as it really is based on said factual evidence when said evidence conflicts with your desired world where homosexuality isn’t natural. This is illustrated by you time and again denying the scientific evidence that homosexuality is not only natural behavior but fairly common in Earth’s biome in a variety of species (including hominids). This is because (despite your protestations to the contrary) you filter everything through your Fundamentalist Christian worldview. It has the same net effect of letting your theories inform your facts instead of the facts in forming your theories. The net effect of both is bad reasoning and counter-factual outcomes based on a poor understanding and/or implementation of empiricism as a methodology of interrogating the nature of reality; the basis of the scientific method of inquiry as well as the philosophy of Natural Law as it applies to law in general, soft rule utilitarianism as it applies to law in general and the technocratic underpinnings of law as an exercise in empirical fact finding.
When you don’t base your theories or arguments on empirical evidence, you are projecting your mind on to the world, evidence and your arguments.
This is a failure of logic and reasoning on a large scale.
What you think is reality isn’t reality because it isn’t based on empirical observation but rather your internalized constructs which in both your cases are not rational and/or are based on faulty premises.
Gene: That was a very nice elucidation, and much more polite than was deserved.
Gene H wrote: “This is illustrated by you time and again denying the scientific evidence that homosexuality is not only natural behavior but fairly common in Earth’s biome in a variety of species (including hominids). ”
I have NEVER denied such evidence. I only deny your false interpretation, that if something exists in nature, it is therefore good. I gave you the example of people born with genetic defects like Down’s Syndrome. The existence of something in nature does not mean it exists according to natural law. Natural Law Theory is based upon the idea that there are natural laws which work toward a good and are utilitarian in nature. When we identify these laws and cooperate with them, it leads to harmony, peace and happiness. Our civil laws ought to discover these natural laws and articulate them in order to lead civil society toward the highest good.
I have NEVER denied the empirical evidence that homosexuality does indeed exist in nature. On the contrary, I affirm that homosexuality does indeed exist in nature. I have simply argued that it does not exist because of the working of natural law, nor does it work toward good the way that opposite sex attraction works. Homosexuality exists in spite of natural law, just like Down’s syndrome.
Furthermore, I have argued that sexuality for the most part develops after birth. This is based upon the scientific evidence from twin studies. Also, I have argued that the idea of homosexuality is an extreme end of a sexuality continuum. This comes again from science, first put forward by Kinsey. This is in contrast to the ideology of a binary form of data, that people are either homosexual or heterosexual.
The logic applied for an understanding of sexuality comes from two different paradigms, yet predict exactly the same result. Both evolutionary models and creationist models agree upon the following understanding:
1) mankind is generally born as male or female with the occasional hermaphrodite that might generally be concluded to be not according to natural law but a mistake during development.
2) for mankind to propagate, the male and female comes together into sexual union.
3) the children produced require nearly two decades of intensive energy and care to raise responsible children. Toward this purpose, a stable bond between the male and female is constructive toward raising children that are responsible and function well in society. Such is called marriage.
4) The role of civil government in recognizing this marriage bond and promoting it over teens shacking up together and producing children out of wedlock has resulted in a stronger more civilized society, societies which have outcompeted others societies which are considered primitive or barbaric because they fail to develop a system of civil laws in accordance with natural laws.
5) sexuality is a biological function that works toward bringing together the male and female to reproduce. Whether one has an evolutionary paradigm or a creationist paradigm, the result is the same. Some evolutionists might put forward that homosexuality perhaps serves as a kind of “population control” in nature, but such assertions are speculative, not based upon empirical data. What we do know is that the sex drive is very powerful, more powerful even than the hunger drive that causes animals to eat. The natural law in play is reproduction, even though you constantly deny that government should have anything to do with reproduction.
6) same sex attraction serves no purpose in reproduction because two people of the same sex cannot reproduce. What purpose then does same sex attraction serve? Is it a mistake of nature? If the rational mind cannot conceive of a bona fide purpose of it, then we should be very careful in formulating laws that encourage same sex activity or seek to be protective of it as an important social phenomena that is necessary to preserve. Such is especially true when all the empirical evidence indicates all manner of health problems, both physical and psychological, are associated with homosexuality. While the retort to this is that evil bigotry against homosexuality has caused such problems, this again is only speculative and not based upon actual empirical data.
7) sexuality develops both from environmental factors and cognitive functions. The choices people make about how to think about sex and about who to have sex with affect how they ultimately develop sexually. I heard a lesbian today brag about what really excites her is turning straight girls into lesbians. She has made it her mission to convert as many straight girls into lesbians as she can.
8) The primary purpose of sex in a homosexual relationship is pleasure. While many heterosexual relationships might also base their relationships on pleasure, there are many who base it upon having a family and raising children. Our rational mind can perceive that this is basically answering their biological call. There is a natural law at work that brings such about, even in people whose sexual orientation is homosexual. Many lesbians have reported how as teenagers it was cool to be homosexual, so they embraced it for a decade or two, until their drive to have a family started taking over and they decided to start dating men for the first time in their lives.
9) When homosexuals follow the sexual drive toward simply pleasure rather than its biological function of reproduction, then the sex act is said to be unnatural. This does not mean that it does not exist in nature. It means that it is not following the natural law for which sexuality exists.
10) Some argue that homosexuality leads to a better personal bonding between two people of the same sex. Such is certainly likely to be true, because sexuality has this effect between any two people who engage in it, and even with inanimate objects, animals, children, and related people for which it would be incestual. There are a variety of biological reasons for this for which we have a pretty good understanding from science. However, the question is, what good does this sexual bonding serve? From an evolutionary perspective, it is a dead end. No children in which to pass on their genes. Natural law is that the sex drive leads couples to reproduce, and so guiding the sex drive toward same sex relations is contrary to natural law. There is no utilitarian purpose served by it.
I have only written a small smidgen of what I could write about this, never once falling back upon some religious dogma written somewhere. My opinions are based in reality, upon empirical evidence, and an understanding from a rational mind that can look at the data and interpret the utilitarian purpose of the sex drive and sexual relations.
That’s called the Mind Projection Fallacy, David.
It’s also not an argument.
David,
If you can’t figure out what I mean when I say the word “equality” based upon what I’ve already said in advocating equal rights and equal protection for homosexuals, then I’m not going to spoon feed it to you simply because you’re apparently too dumb to extrapolate that information from the statements made. The only two people here who “don’t understand” what I mean when I say “equal” or “equality” are the the two people who have a vested interest in maintaining unequal social and legal relationships: an Objectivist and a homophobic zealot. Coincidence? I think not.
You may think you understand.
I know I do.
Gene H – We do not have a vested interest, but a firm grasp on reality and what really works in life.
Psychic now, are you David?
I’m perfectly aware of my own convictions. They are reflected in my words. That you fail to comprehend what words mean is your failing, not mine, and quite well evidenced by your posting history here.
Gene H – I think I understand quite well what you are doing. I know exactly why you will not engage on this word equality.
Gene,
Thanks for the link. It looks good! Lots of philosophy, which I know nothing about. I don’t have any philosophy. I just go with whatever I’ve got, even if it means hurling a folding chair (figuratively speaking). I’ll give it a read, and get back to you. Although no promises on the 2,000 plus(!) comments. 🙂
Bron,
I’ve never heard that they don’t present professionally and unprofessionally in the same ratio as everyone else.
Vestal Virgin
Bron,
You do realize you just proved my point about Galt being an Objectivist archetype don’t you? Romanticism as a school of writing uses archetypes every bit as much as other forms of literature. I’ll even break this down using Rand’s own words:
“Romanticism is the conceptual school of art.”
Not “the”, but “a”. Aside from realism, all art is conceptual.
“It deals, not with the random trivia of the day, but with the timeless, fundamental, universal problems and values of human existence.”
Or as said above, an underlying mythology (Sir G. Frazer) or a “universal prototype” (C.G. Jung) although they can be a pattern of abstraction (Plato). Those patterns of abstractions I was referring to were the Platonic Ideals – probably the original use of archetypes.
“It does not record or photograph; it creates and projects. It is concerned—in the words of Aristotle—not with things as they are, but with things as they might be and ought to be.”
In other words, it creates a romanticized projection of an ideal. In this instance, Galt being the romanticized projection of the Objectivist ideal of an Übermensch.
Oops! See what happens when you understand books and knowledge in general within the context provided by other books and other knowledge? You are less likely to make foolish mistakes like proving your opponents argument for them for one thing.
I think for myself all the time, Bron. Unlike you, I don’t rely upon any one writer or thinker as a crutch. That’s why we are always at odds, Randian. You are a binary thinker incapable of sycretic thought and very poor with extrapolation and synthesis. You can’t help it though. You weren’t blessed with a high functioning anterior cingulate cortex. All men are created equal, but not all men are equally created. This includes being “created” as rational creatures.
Bron, I don’t usually get into these objectivist debates, but Ayn Rand’s understanding of altruism is simply wrong. Indeed, in my opinion her views on altruism, like her “philosophy” in general, was more influenced by her family’s experience in the Russian revolution than by anything else. I have always found it ironic that objectivism was the brainchild of one of the least objective thinkers who ever lived.
Gene H:
Oh, ok.
But again you are wrong, he is a romantic figure in a romantic novel. He is one conception/abstraction of what a human being is capable of. The lives of Tesla and Feynman prove that men are capable of great brilliance and achievement. John Galt was nothing more than a man who happened to be brilliant and who thought for himself. Not all men can be brilliant but all men can learn to think for themselves and live to the best of their talents and ambition.
Do you ever have a thought of your own?
“Romanticism is the conceptual school of art. It deals, not with the random trivia of the day, but with the timeless, fundamental, universal problems and values of human existence. It does not record or photograph; it creates and projects. It is concerned—in the words of Aristotle—not with things as they are, but with things as they might be and ought to be.”
Ayn Rand
VV,
You might be interested in this column: What Makes A Good Law, What Makes A Bad Law. Bron has a problem distinguishing between law being bad and a bad law. It could shine some light on that if you’re willing to slog through the 2,000 plus comments.
VV:
Do these people dress according to norms? I know when I see a teenager with a rainbow mohawk, I am not going to hire him. I dont care if he is straight or gay or transgender. On the flip side if he is wearing appropriate office attire without nose-rings, facial piercings, etc and speaks well and is polite, I will give him a chance, gay, straight or transgender.
Why do people seek attention by looking like a peacock? If you want attention become really good at something. And if you want to be flamboyant wear an orange ascot with an orange houndstooth jacket.
Bron,
You do understand the concept behind archetypes in literature, right?
Apparently not.
Let me help you with that: archetypes in literature are patterns. These patterns relate to an underlying mythology (Sir G. Frazer) or a “universal prototype” (C.G. Jung) although they can be a pattern of abstraction (Plato).
John Galt is the mythology proper; a prototype of the abstractions underlying the pseudo-philosophy/religion of Objectivism as formulated by Rand.
__________
David,
What source do you use to provide the proper meaning of words?
Besides your rectum?
As for the philosophical implications of the word “equality”, Bron and I have had that conversation way more than once. He knows what I mean when I say “equality” . . . except when it’s inconvenient to his stands based in Objectivism (which is often). He likes to play dumb so he can feign outrage. It’s one of his least charming qualities.
I’ll also take argumentation advice from you when Hell freezes solid, oh cherry picker and user of made up terms. It’s no wonder you and Bron like each other so much. You both engage in the same malodorous behavior when it comes to argumentation. You both also catch the pointed end of the stick for your usually weak efforts.
Gene H wrote: “What source do you use to provide the proper meaning of words?”
Always go to the primary source. First, if the author using the word is available, you ask them what they mean by the use of the word. If the author is unavailable, you look at context and consult a dictionary. However, a dictionary is never proof of what they meant by the word.
Gene H wrote: ” It’s no wonder you and Bron like each other so much.”
I like people like Bron, Randy, Vestal Virgin, Squeeky and others because they actually have a concept in their mind from applying their mind to the consideration of issues. You seem to hide behind your knowledge of what other people say rather than having any conviction in your heart about what is the truth.
You have used the word “equality” quite a bit, and I still have no idea what YOU mean when you use the word.
Bron,
You may very well be right. I was defending ONLY the government’s right to tax as an analogy for the government’s right to enact anti-discrimination laws in public accommodations. But I didn’t mean that at any given time or place the tax system was working well or not working well; or hitting the mark or not hitting the mark; or being a total freakin’ mess or not being a total freakin’ mess.
David,
I’m an American citizen, but I haven’t lived in the States for years & years. In the country I live currently in, which I don’t wish to mention the name of to keep my privacy, I’ve only experienced it a few times. I was able to go elsewhere when it happened.
This isn’t specifically about gay people, but check out page four: http://transequality.org/PDFs/Executive_Summary.pdf
Vestal Virgin
Vestal Virgin wrote: ” I’ve only experienced it a few times. I was able to go elsewhere when it happened.”
From my perspective, what you describe is pretty much the experience of everyone. I do not see this as a serious discrimination problem.
The situation against blacks was definitely a problem in the past. Whether that could have been corrected without passing anti-discrimination laws, I am not sure. I tend to think it would have corrected itself without anti-discrimination laws. It was more the shocking television footage of Southern law enforcement treating blacks worse than cattle, spraying them with fire hoses and beating them with clubs. These images awakened people to the cruel attitudes toward blacks in the South. As people began to change their view, many do-gooders made laws to go along with it, and so there no way to really tell if it was the creation of laws or just a change in generational thinking that brought relief for blacks.
These days discrimination is pretty much within tolerable limits. Discrimination is part of human nature and we will never eradicate it because many people process information using associative thinking skills. I think the time has come to repeal all the anti-discrimination laws and to work on the other side of the issue, teaching people to have character and how to be strong when they are wrongly treated by others. Also teaching people how to expose the wrong treatment by others, and protecting free speech to a greater degree. All the hate speech laws need to be repealed because they discourage candid dialogue about important issues.
I realize you are supportive of anti-discrimination laws, but have you ever considered that the problem is tolerable enough that free speech would be sufficient to keep wrongful discrimination in check?
Vestal Virgin:
“So income taxes are not qualitatively different than the other kinds of taxes.”
I can choose to purchase something or not. Capital gains is not tax on labor. So there is a difference.
The nature of a tax on labor and a tax on gains from capital investment are different. One takes time away from a person’s life, the other does not as those dollars are earned even if the person does no work.
In any case I am not against taxation because the legitimate functions of government need to be funded. But we dont need to take nearly 50% of people’s incomes for that purpose. Most of our budget goes to social services of all types, pensions, health care, welfare, college tuitions, etc. The federal government is, at this point, a machine for wealth transfer. And not necessarily to the have not’s, many wealthy people abuse the system as well.