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
Now you’re just making me hungry, gbk. 😀
“It’s a lot like shooting fish in a barrel, gbk.”
I love sushi. Not so much the nigiri style, but sashimi.
It appears that the rights of Gays are supported by the courts but the rights of Christians to a conscience decision are trampled on
What was the judge thinking
I video weddings myself but as a Christian would not video a gay wedding because for me the Bible is very clear about Homosexuality.. whatever a judge says would make no difference to me. .Its a clear choice between Gods laws and mans ideas
God loves gays and invites them to come unto him but condemns the practice of homosexuality
I don’t have all the answers but I trust in a God who does and when we turn our lives over to him amazing things take place
Bron,
I also like how you conflated altruism and collectivism:
“The failure in our society is caused by altruism/collectivism and not by capitalism and limited government.”
I also how you claimed, in the same sentence, that, “the failure in our society is caused by . . . limited government.”
That doesn’t sound like you, Bron. You ok?
Bron,
“how are you going to make the world better by giving up your car? You just screwed over the poor guy on the assembly line.”
Do you mean like your friend who shops out all his engineering contracts to India?
It’s a lot like shooting fish in a barrel, gbk. 😀
David,
“The existence of something in nature does not mean it exists according to natural law.”
and,
“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 . . .”
This is the recursion of thought I spoke of earlier in this thread, David. Quite stunning in its completeness; at least there is symmetry there, however warped.
It also seems that Bron and yourself had a grand time with many posts deriding Gene’s use of the word “equal.” Yet it’s apparent that neither of you actually read what he said because he framed his argument thusly:
“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.”
Yet both of you expended much effort in arguing his very point.
David likes to move the goalposts. I call it being disingenuous. I’d call it something else, but for the WordPress Bad Word Filter.
gbk –
David wrote:
“The existence of something in nature does not mean it exists according to natural law.”
and,
“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 . . .”
=====
gbk wrote:
This is the recursion of thought I spoke of earlier in this thread, David. Quite stunning in its completeness; at least there is symmetry there, however warped.
=====
I’m not sure what you mean by “recursion of thought.” I was only conveying the idea that something existing in nature is not the same thing as identifying the natural laws that explain that existence. I have no idea why you have trouble understanding this, or why you apparently find some kind of problem with my words. Except for the last word “warped,” I might think you were paying me a compliment on my comments.
gbk wrote:
—–
It also seems that Bron and yourself had a grand time with many posts deriding Gene’s use of the word “equal.” Yet it’s apparent that neither of you actually read what he said because he framed his argument thusly:
“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.”
Yet both of you expended much effort in arguing his very point.”
—-
Unfortunately, I had not read that post from Gene. Although my post came later, I had opened a page and started it previously. I have other issues come up here that sometimes take me away from finishing a post.
In regards to the broader subject, many people in society do use the word equality to mean that if somebody is not earning as much money or that somebody does not have as many job offers, and that person falls into a minority class based upon race, gender, or whatever, then they are being discriminated against unfairly. I don’t buy into that way of thinking.
I like the idea that everybody should have equal opportunity to pursue their dreams, and if they can make it, more power to them. If blacks or females receive lower pay, as long as they both agreed to it, I don’t see inequality before the law in that. I see inequality in regards to talent and abilities in that particular field. Hillary Clinton makes more money than I do. I’m not yelling discrimination because of that. We both have the same kinds of opportunities in life and we made choices accordingly that were different.
“its all the same. You can protest all you want but bailing out big banks is socialism or fascism, take your pick.”
No. It’s not, Bron. Bailing out big banks is fascism – the public paying for private risk in the oligarchical/plutocratic/kleptocratic class. Nationalizing criminal acting banks to reform them and hold them in public trust would be socialism. Guess which didn’t happen here?
“My happiness is integral to the happiness of others.”
No. It isn’t. It is integral to your happiness. A better standard of living contributes to a higher level of happiness for everyone. I don’t expect that to be easy for your to discern since Objectivism is a form of ego self-ego worship.
Freedom. Like freedom from economic tyranny? Yep. All for it.
By the way, you can add “freedom” to the list of words you don’t properly understand.
Gene H:
its all the same. You can protest all you want but bailing out big banks is socialism or fascism, take your pick.
and as far as utilitarianism goes? That sucks too.
“All honor to those who can abnegate for themselves the personal enjoyment of life when by such renunciation they contribute worthily to increase the amount of happiness in the world.”
JS Mill
how are you going to make the world better by giving up your car? You just screwed over the poor guy on the assembly line.
My happiness is integral to the happiness of others. In a free society most men share good will by working in harmony to mutual gratification based on voluntary exchanges of goods and services without coercion. Trading value for value.
Freedom is good, you should try it sometime.
It is, and a nice little rock band. I’m still a fan, after all these years.
Still, one of the best band names ever? Same era (a little earlier); Cheap Trick.
That would be a great band name, Juliet. 😀
“I only deny your false interpretation, that if something exists in nature, it is therefore good.”
And thus projecting your personal morality on the empirical evidence observed in nature, David.
Nature doesn’t have morals, Software Boy, but it is what it is. Your “morality” is a judgement you make. An ideological framework that may or may not be rational. That doesn’t make it real. Or does God make mistakes? Surely that is what the implication is when you disagree that approximately 10% of humans are born homosexual and that sexual orientation is determined by biological predisposition but how it is expressed is shaped by nurture and social pressures. That’s what science says. This following summary, however, does comport with the totality of the literature I’ve read on the subject.
Also, I don't have the crippling filters your mind puts on how you evaluate evidence. Your cherry picked data simply doesn't comport with the larger scientific consensus even though it does bolster your confirmation bias, but if you''re going to rely upon posturing, cherry picked data and bullshit, at least cite your source.
_____________
Bron,
They engage in same sex copulation and pair bonding. Like penguins and dolphins do. You can tell if an animal is gay the same way you can tell if a human is gay: observing their behavior.
Bron,
No I got a house phone. It’s connected to the wall, why?
Misunderstand literature much, Bron?
What Rand thought or didn’t think about Plato is irrelevant to Galt being an archetypical character.
“Romanticism is fiction”
No shit, Sherlock. But all art is saying something about reality even if it isn’t a form of realism. Even bad art like Rand’s turgid drivel. She wrote Atlas Shrugged as a literary expression of her “philosophical” ideals. She was deeply disappointed when the literary community greeted with a variety of responses ranging from “ho hum” to “this is crap” and the novel, despite selling well, didn’t set the world afire.
I’m also pretty sure I understand Objectivism better than you do even though it is your religion of choice. That’s part and parcel why I can puncture it so easily and reject it being amoral and/or immoral as an operational philosophy.
Also, there you go with your Mind Projection Fallacy again.
What is happening here isn’t socialism. It’s not even close even though Randian dogma would like you to think that. What is going on here is corporatism/fascism usurping democratic rule of law in favor of a corporatist rule by law. Which is an inevitable outcome of Objectivism and polices based on that deeply wrong point of view. Policies that began with Reagan and people like Alan Greenspan. Policies that are at the core of neoconservatism and the Libertarian Party. Polices that look out for the few at the expense of the many. Oligarchy.
So go ahead and try to tell everyone that socialism and fascism are the same thing.
I’ll be glad to kick your ass over that false equivalence again, Mr. Makes Up Terms.
It’s not like I haven’t done it before.
I’m going to start an 80s cover band called “Mind Projection Fallacy.”
Dragonchuck:
Are you a homophobe?
David,
Are you one them ferry folks?
DavidM:
with all that said, do you think homosexuals have a right to life, liberty and the pursuit of happiness?
Also wasnt Kinsey doing bad science?
David,
Did I say something funny?
Those Feds recognizing homosexual relations. Giving them abominations of god the same power as the devils disciples.