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
Gene you are so, so, quick to err and look for trivial fault. You write, “Your failure to understand is not an indication of rationality but only a failure of your understanding. Long winded is two words.”
Now oftentimes ‘longwinded’ is expressed in a hyphenated manner, however if you will look at http://thesaurus.com/browse/longwinded you will discover that you are wrong. But can you admit it? …. Is the question. Or do you take more pleasure in nit-picking when someone fails to spell something correctly or uses improper grammar? Does this help you cope with your superiority complex?
You sit yourself in the seat of the scornful unnecessarily comparing my attention span with that of a “fruitfly” rather than engaging my questions head-on. Maybe you have been in the kiddie-pool too long. You’re starting to react rather childishly.
Gene criticizes, “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 ”
I did read it Gene. I just didn’t fall for the BS. For instance, you quoted from the Stanford Encyclopedia of Philosophy, “Egalitarian doctrines tend to rest on a background idea that all human persons are equal in fundamental worth or moral status. ” Now that’s about the most hogwash I have heard lately. Do you grant that a cold blooded murderer or Chester the Molester has the same moral status as a newborn child that has never harmed another? It’s nice however to know that egalitarian sociopaths think this way as it enables thinking persons to steer clear of them.
Now Gene, I questioned you, “….. 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.” I provided you with my definition of aggression as the initiation of violence against another. You responded:
“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.”
Gene, although I disagree with your position, I am happy, at least, to see that you have aligned yourself with the position of the meta-ethical moral relativist. This gives me insight into your person. You take the position that “the fact” is “that good and evil are socially defined constructs without an objective basis.” You utilize the example of slavery in an attempt to prove your point. You write:
“For example, slavery was once consider a social norm, but as society changed it came to be seen as a universal evil.” Now Gene, the question we should ask is, ‘If it is truly a fact, as you contend, that (1), all men are created equal, and hence enjoy the right to be treated equally, and (2), that good and evil are merely socially defined constructs without any objective basis, then was slavery any less evil and violative of the rights of those enslaved before society came to see it as evil?
If your answer is no, then socially defined constructs fail with respect to the establishment of actual and meaningful moral standards, as such socially defined standards are oftentimes and more often changing in accordance with the mere opinions of some segment of society.
If your answer is yes, then that would mean the subjective experience and opinion of some segment of society could negate political equality and the right of individuals to be treated equally where one group claiming to be superior could violently enslave another. How could political equality and the right of individuals to be treated equally exist within a social construct of relative and changing moral standards, where real equality inevitably relies upon ‘certain’ apprehendable moral standards applicable to all?
Wherefore, if political equality between members of the human race is desired, then it is necessary to recognize the existence of universal morals.
Therefore, if as you suggest, that the utility of moral universalism must remain confined by the “socially contextual definitions of good and evil as is recognized by moral and meta-moral relativism” then moral universalism becomes for all intents and purposes including political equality, ineffectual and non-existent.
Moving on to the issue of ‘initiation of aggression’, Gene writes: “Now, the question is what do you mean by aggression? …….. Violence can be used for good.”
Gene, you should pay better attention, especially in light of the fact that you regularly chide others for what you percieve to be inattention. My question to you wasn’t dealing with aggression per se, but rather the initiation of aggression.
Gene you write, “Our Founders decided that aggression and violence were required to usurp tyranny from a distant and non-responsive power. ……..Yeah, I do think aggression can be a moral stance.”
You have this all backwards Gene. Actually our Founders determined that a violent and aggressive ‘defense’ was necessary to end the usurpation of right and consequent tyranny of English rule. Remember the ‘writs of assistance’ for instance. ‘Defense’ is the operable word. Defense cannot be construed to be an ‘initiation of violence’. Sometimes the tactics of defense include what appears to be aggressive violent responses, but these responses do not constitute the initiation of aggression.
An initiation of an act of unprovoked violence infers the violation of the rights of others. The words are closely connected in their etymology. Surely you are aware of this. You can not name one instance of an act of unprovoked violence where the same does not violate the rights of someone. If an act of defensive violence occurs, its justifiability is measured by whether it is necessary under the circumstances. For instance, if you encounter someone stringing toilet paper on your lawn and porch during Halloween this does not justify you shooting them. You would be within your rights to drive them off your property by appropriate force or threat of the same, but unless they put up excessive resistence with intent to harm you, you would not be justified in assaulting or shooting them.
The only legitimate exercise of ‘force’, i.e. government, is the defense of rights. And this is the only legitimate and proper role of government.
Therefore I still await an example where it is appropriate and moral to initiate aggression against another equal. Can you provide one?
Gene ends with: “Sure I believe in an accountable representative democracy.”
Well Gene such an accountable representative government can only legitimately represent the rights and authorities that the people possess and lawfully delegate, otherwise it becomes an assumption of authority. Delegating the authority to government to control the free agency of owners of a photography studio with respect to whom they must serve is not a right or authority that any of their equals possess to delegate.
Your associates in the pool are waiting, Gene.
I hate to say this, Randy, but a discussion with Gene on specific points is a waste of time. He always takes the defensive position, arguing only with ad hominem scoffing and mocking. Never does he have an original thought of his own, nor can he understand the wisdom of your points well enough to give an intelligent perspective. You might as well be trying to discuss these things with a 12 year old. He spouts off for fun, not for knowledge. He is like the waves of the sea, constantly moving around but not really saying anything constructive.
Given your (once again) demonstrated complete lack of understanding of the Natural Law theory, that’s a hoot.
Gene,
It left the doors wide open.
It is an amazing book. I also remember the first time I read it. It made me question everything, which is my wont anyway, but it was the first book I read that made me think about how I think.
That is indeed what I said, gbk. 😀
Amazing book. I still remember the first time I read it. I was fourteen. To say it was a life shaping event would be fair and not hyperbolic in the slightest.
Gene,
I almost used the phrase “strange loop” in my above post, but I figured this would require to much explaination without defining “strange” and “loop,” without resorting to the first couple of hundred pages of Hofstadter’s book.
Recursive systems, by definition, are self-referential and need not be rational, unless one wants a limit on the loop — but I think this is what you said.
gbk,
It’s been awhile since I read “Gödel, Escher, Bach: An Eternal Golden Braid” (its about due to be read again with a djinn and tonic) but I think recursive systems need not be rational, only self-referential. I hadn’t put my finger on it until you just mentioned it, but you are on to something there. The structure of David’s thinking certainly qualifies as a strange loop albeit an irrational one.
David,
“I’m not sure what you mean by ‘recursion of thought.’”
I thought you authored software. If you do, then you would be familiar with the word “recursion.” In computer science terms, recursion is when an algorithm instantiates itself within the limits defined by the algorithm itself.
It is a technique typically used to find solutions to series, e.g. pi, Fibonacci, etc.
Most people refer to self-referential argumentation as “circular logic” but this phrase assumes there is logic involved and that the logic is merely “stuck” in a circle. Upon close inspection this perspective is usually an oxymoron.
Recursion of thought — in the context of this thread — means that you purposely restate the same argument utilizing different means while ignoring the limits offered by your prior arguments, or even supporting verbiage. Such as:
“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 recursive thought ignoring the limits of its own claim.
So I guess I should change my phrase of “recursion of thought” to “unlimited recursion of thought.” A simpler term exists, I’m sure, but I’ll leave that to you.
gbk – Obviously I am familiar with recursive algorithms in software design, but I fail to see its proper application to thought here. The wording is a little bit repetitive being that we are engaged in simple conversation, but perhaps you fail to recognize the introduction of the term “working of natural law” and that finding the existence of something in nature does not mean that it exists because of natural law. As I have mentioned many times before, mistakes happen in nature, entropy is also at operation, genetic mutations for the most part are deleterious and not desirable. It is a foolish concept in natural law theory to try to argue that because something exists that it is good and is a result of natural law and therefore desirable.
Gene:
I had about decided to use the story I wrote about my friend Sabrina Jackintell on another blog. After reading the above, I think I will use it here this weekend. Sib was an alpha female if there ever was one.
Speaking of spinning, when my wife was head nurse over the oncology (cancer) unit, one of the doctors made an inappropriate comment to the nurses in the conference room. She pushed him out the door, grabbed him by the shoulder and spun him around. Then she grabbed him by the shirt collar and seat of the pants and frog marched him to the elevator, where she told him as she shoved him into the elevator, “Get off my floor and don’t come back until you learn how to talk to my nurses.”
OS,
I’m thinking not very well. D. would – pardon the pun – set him straight so fast it’d make his head spin. 😀
Um. Yeah. You have, David. Your entire premise is contrary to the 14th Amendment. As explained numerous times and in great detail.
Gene,
I am wondering how an authoritarian like David would function if he had to cope daily with someone like my late wife, or FSM forbid, my DiL whom you have met. Fierce blue eyed, red headed women with the blood of Boudicca running in their veins.
David, as Mark Twain wrote, there are important differences between lightning and the lightning bug.
Men and women are created equal in terms of being on this planet validly. Obviously, not everyone has equal abilities. As a culture we have decided to treat them unequally. The former is not a choice. The second is a decision.
I understand the distinction quite well. But while we’re talking about not understanding something, let’s talk about you and the 14th Amendment, David. The 14th Amendment reads in relevant part:
“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
It does neither says “[a]ll heterosexual persons [. . . ] are citizens of the United States and of the State wherein they reside” nor “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States unless they are a homosexual; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws unless they are a homosexual.”
That’s the thing about equal protection and equal rights; they’re equal.
Equal in an adjective meaning “being the same in quantity, size, degree, or value”.
Not “I’m entitled to superior rights and protections under the law as a heterosexual”.
Gene H – I have never taken any position contrary to the 14th Amendment.
David,
Nice to see you. 🙂 You had disappeared.
VV
Randy,
I’m not sure there’s any point in continuing the discussion. We haven’t convinced each other of anything so far, so it seems unlikely that we will be able to.
I hope you have a great rest of the week and weekend, wherever you are in the world.
If you see a comment of mine on this blog, stop by and say hello, k?
Best wishes,
VV
Living in a country with a government is not enslavement. However, there are a few such places scattered around the world. Some of them are unoccupied islands, and others are….well. let’s just say folks get to make their own rules in those places. Somalia comes to mind in that regard. Unlike the old Soviet Union, you are free to leave anytime you want if you are not happy here.
In the meantime, this is a participatory democracy. Everyone gets to vote. The social compact is that we abide by the rules in return for living here. This month marks the 223rd anniversary of the Watauga militia’s march to Kings Mountain, culminating in the battle there on October 7, 1780. The Watauga Settlement was the first participatory democracy set up on this continent, in which the settlers entered into a social compact for self-government and self-protection. It was that democracy which threatened the English, triggering Major Ferguson’s ill-advised threatening letter to them.
I plan to write about them on the anniversary of the start of their march.
http://en.wikipedia.org/wiki/Watauga_Association
David,
It’s not my fault you can’t argue your way out of a wet paper bag. That’s not elitism. That’s just you sucking at argumentation. An illustration that “created equal” and “equally created” are not the same thing. Even Bron will tell you I can argue a boulder to gravel. I’m exceedingly good at it.
Gene H wrote: ” “created equal” and “equally created” are not the same thing.”
No, they are not, and you love to point out this grammatical difference. However, I don’t think you understand that mankind is both created equally and created equal. With respect to each specific gender, however, men and women are created equal, but they are not created equally. Acknowledgment of this point of fact actually goes to the heart of difference that you and I have about homosexuality and gender roles in society.
OS,
Be careful when drinking hot coffee while reading responses on this thread! 🙂
In answer to my question: “Can you authorize someone to do something you don’t have the authority to do?”
Vestal Virgin wrote: “People could consent as a condition of membership to a group that the group would have certain powers not possessed by individual members.”
How old do people have to be to consent? Does an accident of birth within a locality that has previously chosen such a system create the presumption of consent of the newborn? What about the people that don’t consent?
Government is force. The phrase in the DOI about legitimate governments being based upon the consent of the governed is ludicrous. No one consents to be forced/governed. If you are being forced, then that is proof of non-consent.
By using the term “certain” it appears you are attempting to limit the power of the group. However, any student of history knows that the experiment of this so called Constitutional Republic was sold as just that sort of limited government; one granting “certain” powers. What went wrong? The best historical example for the cause of small limited government has resulted in the largest most powerful statist machine ever known in history. This is empirical proof that declarations of grants of certain powers do nothing to restrain governments.
And do you really believe that governments are restrained by democratic will? Surely you are old enough to have discovered and realized that money and power rules in every form of government. Did democratic will have anything to do with the granting of personhood and rights of political speech to corporations?
Vestal Virgin continues: “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.”
Do you think being accidently born a subject to the dictates of a King created legitimate membership in a group? And do you think that just because these people were so steeped in their ideology of patriotism to the king and Britain that that created some sort of obligation to accept being taxed as long as they were given the sense that they were being represented? How can representation constitute consent for those persons who reject the legitimacy of subjecton by a King? People who submitted to such ideologies in times past were brainwashed of their equality to the “noble” class.
Vestal Virgin continues, 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.”
If the slaves are actually equal to their captors then how can their captors have any right or authority to confer their consent? (to be bound by their decisions). By the same token, other equals of mine have no right or authority to confer my consent where I have not explicitly conferred it myself.
Vestal Virgin writes, ” What the Civil War demonstrated was the scale of effort required to dismantle slavery:”
Slavery had dissappeared in nations around the world again and again, without the necessity of a civil war. The age of industrialization along with the advent of the cotton gin and the corn picker for instance, steadily worked to eradicate the need for the institution of slavery. Long before the civil war slaves were being released by many slaveholders. The institution was becoming unprofitable. Read http://www.lewrockwell.com/2011/04/thomas-dilorenzo/the-official-one-and-only-pc-cause-of-the-civil-war/
VV writes “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. ”
So all this proves that you can’t legislate morality. Morality must be fostered by other means.
Vestal Virgin continues, “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?”
VV responds, “Why would you say this? This is my argument, not yours.”
To point out that membership in a citizenry, a group, is not proof of consent. It proves nothing. And that is true whether or not membership is voluntary of imposed by some fiction of law. You aren’t going to claim that the citizenry/membership of blacks and homos was imposed on them, are you?
Vestal Virgin writes, “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.”
Lets say I trust you with $100 in cash. And I grant you authority to spend $150. Explain to me how you can spend more than I actually gave you? Oh, I forgot! We are suppose to agree that this other $50 really exists and therefore we can impose this fictional existence upon a merchant who doesn’t accept its existence. But you say to the merchant, the majority of us, (you and I), agreed so you must accept. If we are all equal, and we are, then none of us have authority or right to impose our fictions on others. Democracies are two wolves and one lamb deciding what to have for dinner. Doesn’t the lamb have an equal right to life?
I asked you also “Give me just one example of where someone can legitimately delegate the authority to initiate aggression upon another human being?”
I didn’t understand your answer, but I will explain my question later. Running out of time for now.