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
It’s not my fault you don’t understand the differences in basic forms of governance and economic systems despite it having been explained to you numerous times by numerous people here, Bron.
You own your own ignorance.
Such as the ignorance you display about income inequality and how it is growing at a record rate in this country.
http://www.forbes.com/sites/frederickallen/2012/10/02/how-income-inequality-is-damaging-the-u-s/
http://www.ibrc.indiana.edu/ibr/2012/fall/article1.html
And better an honest gigolo than blinded by greed and ego into thinking selfishness is a virtue and that an individual exists outside of the greater context of their society/civilization.
However, technically I’m a whore as I share my knowledge for free.
Which is much better than being an Objectivist.
gig·o·lo
/ˈjigəˌlō,ˈZH-/
noun
derogatory [why?]
noun: gigolo; plural noun: gigolos
1. a young man paid or financially supported by an older woman to be her escort or lover.
Gene H:
you are just a gigolo er socialist.
But it is a catchy tune.
fascism is socialism with a nationalistic bent and all but a propagandist would understand the reality.
Sidney Webb has you all confused. 1st Baron Pasfield indeed, I always laugh when I think about a rich, entitled English gentleman er gigolo making arrangements for the working man.
“The money she brought with her enabled him to give up his clerical job and concentrate on his other activities.”
The she is Beatrice Potter.
Socialism from the mind of a gigolo it all makes perfect sense.
ROTFLMAO!
Gigoloism: the philosophy of living off of others if you cant make it yourself.
Main practioners Marx and Webb.
Socialism redefined.
here is the new international:
yes, some is going to the 1%, and I think that is BS. But much more is going to poor and middle class. Trillions and trillions of dollars over the last 50 years.
Get rid of all welfare payments and assoctiated infrastructure and you probably only need about 25% of the current budget to run the legitimate functions of government.
Bron: “yes, some is going to the 1%, and I think that is BS. But much more is going to poor and middle class. Trillions and trillions of dollars over the last 50 years. Get rid of all welfare payments and assoctiated infrastructure and you probably only need about 25% of the current budget to run the legitimate functions of government.”
Yes, let them eat cake! You’re a bit of dimwit. The “social safety net” is really a safety net for the wealthy. They realize it takes only the barest of crumbs to keep the hoi polloi from rising up and slitting their pampered throats. But, of course, they must continue to demonize the poor via their whores in our Krazy Kabuki Kongress. How else would they get you people to help them hoard their money?
Witless, duped fools.
Also, thanks for showing that Hobbes differentiated between equality of opportunity and equality of outcomes.
“It was never meant to make all men equal in terms of outcomes, social standing, wealth, etc.”
No one is still talking about equal outcomes but you, Bron. Fixate much? Egalitarianism in any sense but the very narrow economic sense is about equal opportunity. I know the greed inherent in your value systems blinds you to most things that you cannot attached an easy monetary value to, but do try to keep up.
“Our government, currently constituted, is a massive wealth redistribution scheme.”
Why yes, they are. Just not how you are implying they are. They are resdistributing wealth upward to the 1% and away from the 99%. A sure fire recipe for disaster and about as anti-egalitarian as it gets. The concentration of wealth in a society is also the concentration of opportunity. Pure oligarchy. You can argue about whether that form of oligarchy is fascism, kleptocracy or plutrocracy, but it is oligarchy nonetheless.
Bron,
In a socialist system, your basic needs would be tended to, freeing you for other pursuits . . . including happiness.
Or to continue conflating socialism and fascism when any idiot with a minimal exposure to real studies in political science knows they are not the same thing.
Whatever floats your boat so long as it doesn’t interfere with the rights of others or subjects them to tyranny.
Randy Lee,
“Gene, you engage Bron with your longwinded sophistries, however you fail again and again to set forth any rational dialogue.”
Your failure to understand is not an indication of rationality but only a failure of your understanding. Long winded is two words.
“You speak of equality; but do you have any idea of what it really is?”
Yes, I do. If you had an attention span longer than that of a fruit fly you might have read this: http://jonathanturley.org/2013/08/23/new-mexico-supreme-court-rules-photographer-cannot-refuse-to-work-at-same-sex-marriage/#comment-644230
“Tell me Gene, if we are all equal, can it ever possibly be moral for one human to initiate agression against another? If so, provide me with some examples.”
Your question assumes I believe in moral universalism and moral absolutism. While Natural Law informs us that there is value in moral universalism. Some principles can be distilled to universal maxims, such as “All men are created equal” as a proposition related to legalism and law. This forms the basis of the distinction between the rule of law and the rule by law. Moral absolutism is nonsense. Good and evil are human constructs that exist in a social framework, i.e. they are socially defined. Since all societies – and indeed men – are not the same, that must mean that morality is relative. But what kind of moral relativism? Descriptive moral relativism says that some people do in fact disagree about what is moral – a true statement. Meta-ethical moral relativism says that in such disagreements, nobody is objectively right or wrong. This simply acknowledges the very real fact that good and evil are socially defined constructs without an objective basis. For example, slavery was once consider a social norm, but as society changed it came to be seen as a universal evil. Normative moral relativism says that because nobody is right or wrong, we ought to tolerate the behavior of others even when we disagree about the morality of it which is also utter nonsense. Moral universalism has utility, but that utility is still confined by the socially contextual definitions of good and evil as is recognized by moral and meta-moral relativism.
Now, the question is what do you mean by aggression? Violence? Or feelings of anger or antipathy resulting in hostile or violent behavior or a readiness to attack or confront? Feelings of antipathy resulting in violence/hostility and a readiness to attack or confront can most certainly be justified. Read the Declaration of Independence. Or better yet, understand it. Violence can be used for good.
Or do you mean coercion? Just so, the threat of violence or punishment can be used for good. Rules without enforcement – even rules derived from the social consensus that is a functioning democracy – are just suggestions without enforcement or the threat of enforcement. Using force to compel compliance with the law is simply an innate function of any form of government. It is the nature of the thing.
When it comes to social control systems, and that at their heart that is what government and the law is, aggression is simply a value-neutral tool. Whether it is good or evil depends upon how it is used. Our Founders decided that aggression and violence were required to usurp tyranny from a distant and non-responsive power.
That is ultimately the question that will again be forced by the fascism encroaching upon our government as designed by the Founders.
Will their usurpations of our protected rights be tolerated without end?
Or will the People rise up and kill them in their own kitchens?
Or can we reverse track without going to that extreme position where violence becomes necessary and therefor good?
Yeah, I do think aggression can be a moral stance.
So did Thomas Jefferson and the 55 other signatories to the Declaration of Independence.
I’m perfectly satisfied with keeping that company.
“And do you believe in government of, by, and for the people that operate on the principle of delegation of authority or do you choose to live in a political fiction where assumptions and usurpations of authority are considered acceptable?”
Sure I believe in an accountable representative democracy. Argue by non-sequitur much?
You should stick to playing in the kiddie pool.
“They whine and whine about coercion and yet want a system where they as individuals are free to be as coercive over those weaker than them without repercussion in the institutionalized form of law enforcement.”
And that is pure BS, I am about as physically weak as they come but at least I am smart enough to know that in a free market system, I have a chance at life, liberty and the pursuit of happiness. In a socialist/fascist system, I would be forced out onto the iceflow to die.
Based on all I have seen, it is the socialist/fascist who is the true sociopath, probably more of a true psychopath.
They love war and destruction, just ask them. Their actions will tell you.
Gene H:
yes government is force and should have the sole use [except in regard to immediate threats where people have a right to protect themselves and their property] of it in a civilized society. It should be limited to the protection of individual citizens and their property from domestic and international threats. Which includes the court system, defense and police.
It was never meant to make all men equal in terms of outcomes, social standing, wealth, etc. Our government, currently constituted, is a massive wealth redistribution scheme.
Chapter XIII
Of the Natural Condition of Mankind as Concerning Their Felicity and Misery
“NATURE hath made men so equal in the faculties of the body and mind, as that, though there be found one man sometimes manifestly stronger in body or of quicker mind than another, yet when all is reckoned together the difference between man and man is not so considerable as that one man can thereupon claim to himself any benefit to which another may not pretend as well as he. For, as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination or by confederacy with others that are in the same danger with himself.
And, as to the faculties of the mind, setting aside the arts grounded upon words and especially that skill of proceeding upon general and infallible rules called science, which very few have and but in few things, as being not a native faculty born with us, nor attained, as prudence, while we look after somewhat else, I find yet a greater equality amongst men than that of strength. For prudence is but experience, which equal time equally bestows on all men in those things they equally apply themselves unto. That which may perhaps make such equality incredible is but a vain conceit of one’s own wisdom, which almost all men think they have in a greater degree than the vulgar, that is, than all men but themselves, and a few others whom by fame or for concurring with themselves they approve. For such is the nature of men that, howsoever they may acknowledge many others to be more witty or more eloquent or more learned, yet they will hardly believe there be many so wise as themselves, for they see their own wit at hand and other men’s at a distance. But this proveth rather that men are in that point equal than unequal. For there is not ordinarily a greater sign of the equal distribution of anything than that every man is contented with his share.
From this equality of ability ariseth equality of hope in the attaining of our ends. And therefore, if any two men desire the same thing which nevertheless they cannot both enjoy, they become enemies; and, in the way to their end, which is principally their own conservation and sometimes their delectation only, endeavour to destroy or subdue one another. And from hence it comes to pass that, where an invader hath no more to fear than another man’s single power, if one plant, sow, build, or possess, a convenient seat others may probably be expected to come prepared with forces united to dispossess and deprive him not only of the fruit of his labor but also of his life or liberty. And the invader again is in the like danger of another.”
It helps to put the text in context. I leave it to the intelligent reader to read Hobbes for himself.
http://www.bartleby.com/34/5/
“Egalitarianism is nothing more than force.”
So instead of using a lesser dictionary, you change to an outdated one.
Brilliant strategy, Bron. 🙄
Egalitarianism is a value.
The values of a society are enforced by its government.
All government is a form of force, no matter its form.
Rules without enforcement are suggestions.
That is part and parcel why a sociopath and her acolytes chafe at any notion of government. They can’t have any of those nasty rules and consequences stopping them from exerting their unrestrained ego upon others (especially when a profit is to be had). They whine and whine about coercion and yet want a system where they as individuals are free to be as coercive over those weaker than them without repercussion in the institutionalized form of law enforcement.
My head must be addled. The naval blockade extended all the way to Texas, not only to Louisiana.
Geez louise.
Webster’s 1913 Ed.
Equalitarian (Page: 504)
E*qual`i*ta”ri*an (?), n. One who believes in equalizing the condition of men; a leveler.
Question, who figures out what aspects of men’s lives are to be made equal/level? You? We already have our DOI which lays out the limits of equality. It doesnt say that all men can only rise so high so as not to upset their neighbors. All men are created equal but some due to hardwork and nature or nurture or both do better in life. Egalitarianism wants to do away with the “pursuit of happiness” and limit all men to a common denominator.
Egalitarianism is nothing more than force.
You just cant help yourself, can you.
Equality before the law and in terms of individual human worth is just, trying to equalize the condition of all men is injustice to some and diametrically opposed to our founding documents.
I know that individual freedom/liberty is a hard and strange concept for you to wrap your mind around.
from OED [Oxford English Dictionary]:
equalitarian
Syllabification: (e·qual·i·tar·i·an)
Pronunciation: /iˌkwäliˈterēən/
noun
another term for egalitarian.
““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. The rise of capitalism swept away all castes, including the institutions of aristocracy and of slavery or serfdom.”
Ayn Rand
Randy wrote, “Can you authorize someone to do something you don’t have the authority to do?”
People could consent as a condition of membership to a group that the group would have certain powers not possessed by individual members.
The famous phrase wasn’t, “No taxation”; it was, “No taxation without representation.” The objection wasn’t that groups in principle lacked authority to impose taxes over the objections of individual members; the objection was that colonists didn’t have a participatory voice in the decision to do so. Representation is one kind of consent.
Randy also wrote, “Did the slaveholders have any authority to delegate with respect to the consent of their slaves to be bound by their decisions? IF, IF, IF, the slaves were actually the property of the slaveholder then they would have no right of their own choice to refuse their consent.”
I’m not really sure what you are saying, but if it’s “citizens are slaves” because government “assumed” power over them without their consent, the analogy really proves nothing–other than to say, “citizens are slaves”. It’s a conclusion masquerading as analysis.
I’m glad you brought up slaves, though. Your guy Spooner tried to help John Brown after the Harper’s Ferry raid but was against the Civil War on the grounds that it was an illegitimate attempt by the federal government to maintain power over southern states. What the Civil War demonstrated was the scale of effort required to dismantle slavery: An army in the west. The Army of the Potomac in the east. A naval blockade stretching from the Atlantic coast in Virginia all the way around to the Gulf coast in Louisiana. The entire industrial strength of the northern states. The nerve to stare down Britain and France and the wile to court Russia. The stomach to endure 300,000 dead in a population of 20 million. (Which is a about one person in 60. By comparison, the Iraq War dead per total U.S. population are about one person in 68,000. If the Civil War figure is applied to today’s U.S. population, it would be like having a war in which five million Americans died.)
Thus, if Spooner is applied to slavery, the South secedes peacefully, no subsequent Harper’s Ferry-like insurrection succeeds, and the Confederate States of America goes into the twentieth century as a slave-holding nation.
Randy wrote, “Did the American people consent to the recent bank/wallstreet bailout? Did we ever authorize anyone to bail the banks out?”
Assuming for the sake of argument that the bad things people say about the bank bailout are true, I prefaced some of my comments above with phrases like, “assuming there’s no distortion or co-opting of group power by a subset of group members” (or people external to the group!), and so on.
One might say that life is slippery. The meaning of words is slippery and won’t stand still. Culture is slippery and does an about face across a few generations. You set up a system of rules, and immediately people start trying to game them. Abuse of power isn’t a government thing. It’s a people thing. A human nature thing. They do it in government contexts. They do it in nongovernment contexts. They do it in the federal government. They do it in local governments. They do it in corporations. So, you set up a system with restraints and checks where abuse of power is likely to occur. Then, as you go along, you prune it here and you extend it there, as life evolves, circumstances change, and people game the system to their own advantage and at the expense of others.
Randy also wrote, “Did the black citizens in this country consent to be bound by the Jim Crow laws? If so why did they resist? Did the homosexual citizens consent to be bound by the sodomy laws? Then why did they resist?”
Why would you say this? This is my argument, not yours. You asked if people could delegate more authority than they personally possessed as individuals. I said, yes, that’s possible, via consent upon membership in the group. I never said and would never say that’s how American civic life actually played out from the start. For goodness sake, women couldn’t even vote till the twentieth century. It’s your world that’s crystalline dogma. Not mine. Mine is filled with real world problems.
African Americans and gays didn’t consent. That was the whole problem. It took the power of the federal government to undo the state and local tyranny directed against them.
Randy also wrote, “Give me just one example of where someone can legitimately delegate the authority to initiate aggression upon another human being?
Since you already said that you are opposed to any law or judicial decision that doesn’t protect against immediate physical harm or death, I’ll assume that’s the real meaning of your question. I already cited to you the Coinage Act passed during George Washington’s presidency. Your criterion is so narrow, I’m sure there’s a ton of legislation and judicial decisions from every Congress and court from the eighteenth century down to today that you would disagree with. Shall I get together a list?
And Gene, just so you are not confused as to what I mean by aggression, I mean the initiation of violence.
Gene, you engage Bron with your longwinded sophistries, however you fail again and again to set forth any rational dialogue. You speak of equality; but do you have any idea of what it really is?
Tell me Gene, if we are all equal, can it ever possibly be moral for one human to initiate agression against another? If so, provide me with some examples.
And do you believe in government of, by, and for the people that operate on the principle of delegation of authority or do you choose to live in a political fiction where assumptions and usurpations of authority are considered acceptable?
Vestal Virgin writes:
” People delegate authority to the government, but the delegation of authority includes their consent to be bound by its decisions, outside of a set of rights.”
Really?
Can you authorize someone to do something you don’t have the authority to do?
Can you authorize someone to enter a home or property that does not belong to you?
Can you authorize another to steal as your representative?
Did the slaveholders have any authority to delegate with respect to the consent of their slaves to be bound by their decisions?
IF, IF, IF, the slaves were actually the property of the slaveholder then they would have no right of their own choice to refuse their consent. Therefore by operation of logic they must have consented to their enslavement. As such their consent would bind them to the decisions of the slaveholder.
But you and I know they never consented to be bound to an authority that never existed.
Did the American people consent to the recent bank/wallstreet bailout? Did we ever authorize anyone to bail the banks out?
The only ‘authority ‘ an individual possesses is that that he possesses as a matter of right.
Therefore any legitimate delegation of authority must rationally occur within the context of a “set of rights”.
You can only authorize others to do what you have the right to do.
So tell me VV, how does someone consent to be bound by usurpations and assumptions of authority that were never, and could have never been, legitimately delegated?
Did the black citizens in this country consent to be bound by the Jim Crow laws? If so why did they resist?
Did the homosexual citizens consent to be bound by the sodomy laws? Then why did they resist?
I could go on and on with examples. Give me just one example of where someone can legitimately delegate the authority to initiate agression upon another human being?
I’m so sleepy. This is totally random, but I leave you with one of my all-time favorite You Tube videos: