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
Bron,
“7. Against individualism, the Fascist conception is for the State; and it is for the individual in so far as he coincides with the State, which is the conscience and universal will of man in his historical existence. It is opposed to classical Liberalism, which arose form the necessity of reacting against absolutism, and which brought its historical purpose to an end when the State was transformed into the conscience and will of the people. Liberalism denied the State in the interests of the particular individual; Fascism reaffirms the State as the true reality of the individual. And if liberty is to be the attribute of the real man, and not of that abstract puppet envisaged by individualistic Liberalism, Fascism is for liberty. And for the only liberty which can be a real thing, the liberty of the State and of the individual within the State. Therefore, for the Fascist, everything is in the State, and nothing human or spiritual exists, much less has value, outside the State. In this sense Fascism is totalitarian, and the Fascist State, the synthesis and unity of all values, interprets, develops and gives strength to the whole life of the people.
8. Outside the State there can be neither individuals nor groups (political parties, associations, syndicates, classes). Therefore Fascism is opposed to Socialism, which confines the movement of history within the class struggle and ignores the unity of classes established in one economic and moral reality in the State; and analogously it is opposed to class syndicalism. . .
13. Fascism, in short, is not only the giver of laws and the founder of institutions, but the educator and promoter of spiritual life. It wants to remake, not the forms of human life, but its content, man, character, faith. And to this end it requires discipline and authority that can enter into the spirits of men and there govern unopposed. Its sign, therefore, is the Lictors’ rods, the symbol of unity, of strength and justice.
9. . . . The theory of Fascist authority has nothing to do with the police State. A party that governs a nation in a totalitarian way is a new fact in history. References and comparisons are not possible. Fascism takes over from the ruins of Liberal Socialistic democratic doctrines those elements which still have a living value. It preserves those that can be called the established facts of history, it rejects all the rest, that is to say the idea of a doctrine which holds good for all times and all peoples. If it is admitted that the nineteenth century has been the century of Socialism, Liberalism and Democracy, it does not follow that the twentieth must also be the century of Liberalism, Socialism and Democracy. Political doctrines pass; peoples remain. It is to be expected that this century may be that of authority, a century of the “Right,” a Fascist century. If the nineteenth was the century of the individual it may be expected that this one may be the century of “collectivism” and therefore the century of the State. . . . The doctrine itself, therefore, must be, not words, but an act of life. hence, the pragmatic veins in Fascism, its will to power, its will to be, its attitude in the face of the fact of “violence” and of its own courage.
…The Fascist State organizes the nation, but leaves a sufficient margin of liberty to the individual; the latter is deprived of all useless and possibly harmful freedom, but retains what is essential; the deciding power in this question cannot be the individual, but the State alone….
Mussolini”
And what do you think, Bron?
7. Against individualism, the Fascist conception is for the State; and it is for the individual in so far as he coincides with the State, which is the conscience and universal will of man in his historical existence. It is opposed to classical Liberalism, which arose form the necessity of reacting against absolutism, and which brought its historical purpose to an end when the State was transformed into the conscience and will of the people. Liberalism denied the State in the interests of the particular individual; Fascism reaffirms the State as the true reality of the individual. And if liberty is to be the attribute of the real man, and not of that abstract puppet envisaged by individualistic Liberalism, Fascism is for liberty. And for the only liberty which can be a real thing, the liberty of the State and of the individual within the State. Therefore, for the Fascist, everything is in the State, and nothing human or spiritual exists, much less has value, outside the State. In this sense Fascism is totalitarian, and the Fascist State, the synthesis and unity of all values, interprets, develops and gives strength to the whole life of the people.
8. Outside the State there can be neither individuals nor groups (political parties, associations, syndicates, classes). Therefore Fascism is opposed to Socialism, which confines the movement of history within the class struggle and ignores the unity of classes established in one economic and moral reality in the State; and analogously it is opposed to class syndicalism. . .
13. Fascism, in short, is not only the giver of laws and the founder of institutions, but the educator and promoter of spiritual life. It wants to remake, not the forms of human life, but its content, man, character, faith. And to this end it requires discipline and authority that can enter into the spirits of men and there govern unopposed. Its sign, therefore, is the Lictors’ rods, the symbol of unity, of strength and justice.
9. . . . The theory of Fascist authority has nothing to do with the police State. A party that governs a nation in a totalitarian way is a new fact in history. References and comparisons are not possible. Fascism takes over from the ruins of Liberal Socialistic democratic doctrines those elements which still have a living value. It preserves those that can be called the established facts of history, it rejects all the rest, that is to say the idea of a doctrine which holds good for all times and all peoples. If it is admitted that the nineteenth century has been the century of Socialism, Liberalism and Democracy, it does not follow that the twentieth must also be the century of Liberalism, Socialism and Democracy. Political doctrines pass; peoples remain. It is to be expected that this century may be that of authority, a century of the “Right,” a Fascist century. If the nineteenth was the century of the individual it may be expected that this one may be the century of “collectivism” and therefore the century of the State. . . . The doctrine itself, therefore, must be, not words, but an act of life. hence, the pragmatic veins in Fascism, its will to power, its will to be, its attitude in the face of the fact of “violence” and of its own courage.
…The Fascist State organizes the nation, but leaves a sufficient margin of liberty to the individual; the latter is deprived of all useless and possibly harmful freedom, but retains what is essential; the deciding power in this question cannot be the individual, but the State alone….
Mussolini
He says it isnt socialism but then you can call a yacht a sundae.
Either way the individual is deprived of his liberty.
Bron wrote: “He says it isnt socialism but then you can call a yacht a sundae. Either way the individual is deprived of his liberty.”
I thought you were doing a great job demolishing Gene H’s perspective, except when you equated socialism and fascism.
For Mussolini, fascism was a religion. The State was god. Motivations for fascism could not be about money, so he had to frame fascism and socialism as opposites. Socialism is all about money. Fascism is not.
I would say Mussolini used a little hyperbole and defined fascism in an extreme way. Who is really going to argue that the State is not about money? The State is entirely about money and always has been. Mussolini was trying to make fascism holy by divorcing the motives of the State from being about money.
Fascism and socialism often have overlap, but they are not identical. Fascism is about the collective being so important that the needs of any individual become subservient to the State. If an individual needs to be harmed or even killed for the good of the State, that is good under the political philosophy of fascism.
Socialism is simply concerned with ownership of the means of production and management of the economy for the good of all. That might designate the State, but it might also designate a cooperative or common ownership. The goal of socialism is for the workers to receive just compensation in relation to their contribution of a product.
In fascism, the goal is the betterment of the State, and if that means the workers receive unjust compensation, that is okay. The needs of the State outweighs any need of the individual.
If you look at this carefully, you should be able to see that in some cases, fascism and socialism attempt to work hand in hand, like in Nazi Germany, but in other cases, they might be defined as opposites, as in Italy under Mussolini.
I hope you can work out the differences in your mind. For the most part, I thought your arguments were logical and clear. They cleaned Gene H’s clock, despite his elitist style verbiage that attempts to make sure that nobody is his equal.
I appreciated your quotes from Ayn Rand. I have not had the opportunity to read her yet. Your quotes piqued my interest. I did see the two parts to the movie Atlas Shrugged. I really loved Part II.
“I have always viewed the fleecing of this country as a product of jingoism and the disproportionate funds we spend on ‘defense.'”
Bingo.
Bron,
“Oh, I think many people have fleeced the taxpayers in this country. There is plenty of blame to go around.”
And this is what you just don’t get Bron. I agree with this statement as a broad brush. I just don’t agree with your solutions, nor your definitions in approaching them.
Can you discuss those without resorting to Goebbels, Rand, etc. Can you offer solutions that do not denigrate?
gbk:
Oh, I think many people have fleeced the taxpayers in this country. There is plenty of blame to go around.
Not a very astute student of history there, Bron.
Actually you can trace the start of our problems to the end of WWII and the influence of the MIC as created by that war and no dismantled at its end. Our problem is primarily political and only motivated and moved by narrow economic interests. Then again, I forget (not really) that your take on economics is the fantasy version espoused by the very unscientific von Mises and the Austrian School who are in fact apologists for the greed required to create fascism/corporatism, plutocracy, and kleptocracy. In fact, those political outcomes are pretty much guaranteed by following the polemic dictates of the Austrian School.
And way to dodge the fact that the father of fascism said it was in complete opposition to socialism.
Not.
Gene H:
It’s well on its way to being a plutocracy/kleptocracy/socialist/fascist police state.
It has been that way since at least 1933. Keyens ushered it in.
Bron,
So we went from owning the means of production, distribution, etc., to Goebbels.
You know, Bron, I’ve tried for many years to open up a dialog between us. I admit this was not my first inclination, but I do respect your perspective as it comes from someone who is passionate about the fleecing of this country, as am I.
I’ve just never agreed with your focal point of our country’s demise being due to poor and lazy people expecting handouts along with the other gremlins that you so casually define. I have always viewed the fleecing of this country as a product of jingoism and the disproportionate funds we spend on “defense.”
To your own, Bron.
By the way, interested in what the father of Italian Fascism had to say about socialism? In 1932 Mussolini wrote (with Giovanni Gentile) an entry for the Italian Encyclopedia on the definition of fascism. So here it is, straight from Il Duce’s pen . . .
Emphasis added for the hard of understanding.
Now where have I head that fascism and socialism are diametrically opposed political philosophies before? Hmmmmmm. Oh yeah!
I’ve said that.
About a hundred times.
Still using all the muscles but the important one, eh Bron?
All governments are control systems.
Who they work for and how is what defines what they are.
We are supposed to be a democratic Federal Presidential Constitutional republic according to the designs of the Founders, but anyone paying attention knows that is not how the modern American government operates in reality. It’s well on its way to being a plutocracy/kleptocracy/fascist police state.
And while I’m thinking about it, the only truly salient feature national socialism has with any form of actual socialism is in name.
You can call a chicken a luxury yacht, but in the end, it’s still a chicken.
The Nazis are a perfect example of function being the critical definition of form instead of self proclamation. They sold themselves to the German people as socialists, true, but in operation they were fascists and – as you keep ignoring – they had to purge the party of socialists in the Night of the Long Knives to prevent a fermenting danger of coup against Hitler.
Just so, Obama sold himself to be an agent of reform and change when in fact he is simply another fascist like Bush before him.
New Coke was a trick to manipulate the stock of the company and not really a serious replacement for Coke.
Cherry picking your way through history is no way to learn anything.
Neither is being willfully ignorant.
gbk:
this is from Joseph Goebbles:
“Why Are We Socialists?
We are socialists because we see in socialism, that is the union of all citizens, the only chance to maintain our racial inheritance and to regain our political freedom and renew our German state.
Socialism is the doctrine of liberation for the working class. It promotes the rise of the fourth class and its incorporation in the political organism of our Fatherland, and is inextricably bound to breaking the present slavery and regaining German freedom. Socialism, therefore, is not merely a matter of the oppressed class, but a matter for everyone, for freeing the German people from slavery is the goal of contemporary policy. Socialism gains its true form only through a total fighting brotherhood with the forward-striving energies of a newly awakened nationalism. Without nationalism it is nothing, a phantom, a mere theory, a castle in the sky, a book. With it it is everything, the future, freedom, the fatherland!
The sin of liberal thinking was to overlook socialism’s nation-building strengths, thereby allowing its energies to go in anti-national directions. The sin of Marxism was to degrade socialism into a question of wages and the stomach, putting it in conflict with the state and its national existence. An understanding of both these facts leads us to a new sense of socialism, which sees its nature as nationalistic, state-building, liberating and constructive.”
http://www.calvin.edu/academic/cas/gpa/haken32.htm
Those are his words, he seems to think he is a National Socialist. Which is my understanding of Fascism; socialism with a nationalistic bent.
Control of economic activity is control of economic activity. The state should not determine the interest rate, minimum wage, or any of a number of other things having to do with the economy.
So in my mind, for all intents, it is a very small difference. State control is state control.
I dont agree with it, if you do then get people together and have a Constitutional Amendment to say that socialism is the economic method in the US. If you win, OK, I can accept that, I wouldnt like but it would be the law of the land approved by the majority.
Il Duce was a socialist before he developed fascism. Dont you think he built on what he knew?
Also what about Hegel? Marxism contains elements of Hegels philosophy and Marx was a young Hegelian. I have also read that Hegel’s philosophy can be found in Nazi Germany. From what I have read, you cannot fully understand Marx until you have read Hegel. Since I have not yet read Hegel, maybe I am mistaken. If you have some superior knowledge concerning Hegel, Marx and Nazis, please share it.
Angry? No. Why would I be angry about what an Objectivist thinks of me? I don’t really care what you think either and I’ve said numerous times your value to this forum is simply that of bad example.
As far as anger goes, the angry defensive posts above are self-evident of who has the anger issue when their pet pseudo-philosophy is exposed for the amoral/immoral load of self-indulgent self-serving venal crap that it is. That’s not a new response from you either Just par for the course. But if you’re going to call me a prostitute and a pimp, I’m going to straight out call you a sociopath. Why? Reciprocity. That and because you espouse all the compassion and empathy for your fellow humans a sociopath does. And I got news for you, sunshine. I’m not the only one here who thinks that about you either. In fact, sociopath is one of the nicer things I’ve heard you called by some. One is defined by one’s actions and espoused beliefs, not one’s declarations of self definition. You can think you’re the Übermensch hero of your own tale all you like. Why? Because of how many Objectivists it takes to screw in a light bulb. One – to hold the light bulb while the entire universe revolves around them. Oh comedy! Truth only faster.
Also, no one who knows what they are talking about in re political science thinks socialism and fascism are the same. The notion that you are careful in how you use words is simply belied by your very well known history in this forum for making up definitions when it suits you. That was good for a laugh though.
But please, foam at the mouth some more.
I do so find it amusing.
And don’t hate me because my logic and rhetoric skills are superior to yours. It is after all what I am trained in. Hate me because I think your value system of choice sucks and I refuse to accept that some animals are more equal than others.
Squeal, piggy! Squeal!
Bron,
“There are more than a few people, and not all of them Objectivists, who understand that Fascism and Socialism are the same thing for all intents.”
Let’s take this statement of yours as an axiom. It must be, from your perspective, as you have stated it many times. Then, you say:
“Certainly there are minor differences, socialism doesnt allow ownership while fascism allows ownership but government control.”
Your first sentence after claiming, “that Fascism and Socialism are the same thing for all intents,” (please note your “ALL intents”) is to note “minor differences” between the two.
As an aside, socialism does allow ownership. It’s calling card is that the means of production, distribution, and monies derived from such ownership belongs to the members of the endeavor.
Then you say:
“The only people who dont see it [more like refuse to see it] are socialists.”
How can only socialists not see that fascism and socialism, according to you, are the same? Wouldn’t fascists “see” this also since they are the same?
Juliet N:
See above comment to Gene H.
You arent even worth the effort at thinking to compose a response to your gibberish.
Bron: I know you’re very uncomfortable when you’re forced to abandon your oddly-constructed political theory and enter into the way the world actually works. I would be, too, were I you.
By the way, your opinion matters to me about the way a piece of dogsh*t does on the bottom of my shoe. Something to be scraped off and discarded before you drag it into polite society.
If you cant argue the merits, start calling the other guy a sociopath. You are good at that, I will give that to you.
Gene H:
You really need to learn to control yourself. You are so cute when you are angry.
Gene H:
That was rich, I am calling you names? You call me a sociopath as a method of argumentation and I am retreating into “douche baggery”.
As you say, some habits are impossible to break.
There are more than a few people, and not all of them Objectivists, who understand that Fascism and Socialism are the same thing for all intents. Certainly there are minor differences, socialism doesnt allow ownership while fascism allows ownership but government control.
The only people who dont see it [more like refuse to see it] are socialists.
As far as other words are concerned, I am pretty careful about how I use a word.
Obfuscation is definitely your strong suit.
http://xheo.com/products/code-protection/obfuscate-everything?gclid=CI6Hg_barbkCFapQOgodyiYAOg
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I see you have your own website, now.
Whatever.
I’ll stand behind a history of posting that show money is not a primary motivation or basis in my thought or ethics.
At least I’m not a venal Objectivist sociopath that is totally distrusted, has a history of lies, distortion and literally trolling under pseudonyms (and even once getting banned for such while posing as another poster) and is mostly disliked in this forum. The regulars know your history. Still, I think it was the right thing to do when Mark and I stood up for ending your banishment. If nothing else, a marketplace of ideas needs negative examples. One cannot differentiate light without the contrast of darkness.
I do take solace in that no matter how many times you try to sell your Objectivist gibberish which is almost perfect in its immorality that you have yet to have a single taker other than the occasional drive-by true believer who arrived already conditioned to worship money and their own ego above every other consideration.
Consistency provides a sort of continuity even when it is the consistent foolishness of a little mind.
There is a reason Objectivism appeals to disaffected teens and the emotionally crippled. Teens are expected to be selfish little turds as they figure out their personalities. Adults don’t have any excuse except brain malformation or simple stupidity.
Since you apparently wanted to be explicit in your feelings.
That Ethic of Reciprocity can be a cruel mistress.
You may be an Objectivst troll, but you’re our Objectivist troll.
:*
Now . . . do you want to make some other argument (probably still based in your set of faulty premises that is Objectivism and/or your deliberate misuse of the English language) for me to destroy or would you like to simply keep calling names? I was harboring some hope that your slight improvement in argumentation over time was permanent, but I suspect some habits are simply impossible for you to break such as retreating into simple douche baggery when your arguments are cornered instead of trying a different argument.
doesnt a whore charge? isnt the word slut?
whore
/hôr/
noun
derogatory
noun: whore; plural noun: whores
1. (of a woman) work as a prostitute.
you are a socialist pimp, not a whore.