The New Mexico Supreme Court ruled yesterday that a photography studio violated the the New Mexico Human Rights Act (NMHRA) by refusing to photograph a same-sex wedding. Vanessa Willock was told that Elane Photography had a moral objection to her gay wedding and sued under the act, which “prohibits a public accommodation from refusing to offer its services to a person based on that person’s sexual orientation.” The case is the latest in a growing number of such conflicts between religious beliefs and anti-discrimination laws. Because this is an expressive activity, it raises some difficult questions under the first amendment rights of the owners of Elane Photography, Jonathan and Elaine Huguenin. As one justice noted in concurrence, this is “the price of citizenship.” However, there remains the question of the right of citizens not to be forced to express ideas or values with which they disagree. That concern rests on a distinction between an expressive activity like photography and a cab or a movie theater in public accommodation.
The decision is well-written and well-conceived. I particularly like the part of the concurring opinion by Justice Richard C. Bosson, writing in concurrence, where he states that the case “teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less.” I happen to agree with that sentiment. However, I remain concerned over the impact on first amendment rights.
The Court made a reasonable distinction between the Huguenin’s conduct as opposed to their beliefs. The law governs conduct in public accommodation. Thus, “in the “world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different.”
The New Mexico Human Rights Council ordered Elane Photography to pay Willock $6,637.94 in attorneys fees and costs after finding a violation of the law.
The Court takes on the first amendment issues directly. The Court drew a compelling comparison to the Supreme Court decision against law schools who had refused to permit military recruiters to participate in their recruitment or placement activities:
Elane Photography’s argument here is more analogous to the claims raised by the law schools in Rumsfeld. In that case, a federal law made universities’ federal funding contingent on the universities allowing military recruiters access to university facilities and services on the same basis as other, non-military recruiters. 547 U.S. at 52-53. A group of law schools that objected to the ban on gays in the military challenged the law on a number of constitutional grounds, including that the law in question compelled them to speak the government’s message. Id. at 52, 53, 61-62. In order to assist the military recruiters, schools had to provide services that involved speech, “suchas sending e-mails and distributing flyers.” Id. at 60.The United States Supreme Court held that this requirement did not constitute compelled speech. Id. at 62. The Court observed that the federal law “neither limits what law schools may say nor requires them to say anything.” Id. at 60. Schools were compelled only to provide the type of speech-related services to military recruiters that they provided to non-military recruiters. Id. at 62. “There [was] nothing . . . approaching a Government-mandated pledge or motto that the school [had to] endorse.”
The problem is that a photographer does more than offer a facility. He uses an interpretive skill and art form to frame an event. This is more akin to a writer or painter as an expressive form. Of course, the problem is that many forms of public accommodation could claim expressive components from bakers to tailors. The Court has drawn a line at the government requiring newspapers or publications to carry opposing views. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 244 (1974) (invalidating Florida’s “‘right of reply’” statute);
Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1, 4, 20-21, 26 (1986) (plurality opinion) (holding unconstitutional an order to allow a third-party group to send out message with a utility’s billing statements). In one such case, Hurley v. Irish- Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995) where it ruled that a parade could exclude a gay rights groups rather than force it to include an expressive component in its banner and advocacy.
The Court again draws a compelling distinction:
“Elane Photography does not routinely publish for or display its wedding photographs to the public. Instead, it creates an album for each customer and posts the photographs on a password-protected website for the customers and their friends and family to view. Whatever message Elane Photography’s photographs may express, they express that message only to the clients and their loved ones, not to the public.”
Yet, a photographer does not simply produce robotic or reflective images. They interact with subjects of their photos and arrange scenes to capture the essence of an event. For that reason, I was not convinced that photographs of this kind are solely the expression of the couple and not the photographer.
My concern is with the speech as opposed to the association. While the couple argued that third parties could conclude that their pictures show approval of same-sex relationships, the Court correctly notes that “They may . . . post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” Yet, I wonder if such statements could be challenged next as creating a hostile environment.
In the end, I remain torn by this ruling. I see the logic and the precedent for the decision. However, I have lingering discomfort with a required expressive act like photography. It is in my view a close question and I would love to read the thoughts of our blog on the issues. There may be no way to accommodate such expressive rights in a public accommodation law. However, that would require deeply religious businesses to either shutdown or engage in ceremonies that they find morally objectionable. It is a tough call despite my long-standing support for same-sex marriage and gay rights. What do you think?
Here is the opinion: sc33687
David,
Just read your post…. Jesus was a Jew…. What’s cha gonna do now…. He wasn’t a Christian…..
AY wrote: “Jesus was a Jew…. What’s cha gonna do now…. He wasn’t a Christian…..”
Yes, Jesus was a Jew. What’s your point?
OS,
I do bet… That David would love to debate the negro agenda with you… But his racism would come out full fledged….
You still seem to be failing to grasp that natural law doesn’t involve subjective moral judgements, David, but rather objective distillates of principle to the universal or near-universal such as legal/political egalitarianism, just war theory and the freedom of the seas.
David,
You and others of similar mindset keep using the phrase, “Homosexual agenda.” That is the 800 pound gorilla of straw men. If homosexuals have an agenda, it is simply to be treated like everyone else, with the same rights, responsibility and freedoms as everyone else. And the same right to be left alone and protected from harm as everyone else.
In this year 2013, would you be willing to discuss the “Negro agenda?”
OS wrote: “You and others of similar mindset keep using the phrase, “Homosexual agenda.” That is the 800 pound gorilla of straw men. If homosexuals have an agenda, it is simply to be treated like everyone else, with the same rights, responsibility and freedoms as everyone else.”
We already covered this many times, and each time you are proven wrong. You keep sticking your head in the sand. Since the “After the Ball” book (see http://www.endcensorship.com/uploads/After_the_Ball_-_outline_by_Richard_Cohen.pdf for outline), the homosexual agenda has been much more organized than you credit them.
As for the Negro agenda, you can consult with Al Sharpton and Jessie Jackson. They have made a living with it.
I really do not understand why you find fault with that word “agenda.” From your perspective, is it suppose to be evil for people to organize around an agenda?
David that was directed at you….
Thanks Gene….
So then married couples not intent on reproducing are invaluable in your equation…. How about folks that have children and don’t want them or can’t afford them or are not proper to raise children in your book are less than or not valuable…..how about same sex couples adopting these children…. Is than an abomination in your eyes…..
Rational…. Do you know what the definition is? What is rational to Jeffery Dahlmer or John Wayne Gacey is not rational to me…. But I’m sure some folks would not see an issue with it….
I think you don’t like people unless thy think like you…. Which is a form of bigotry…..don’t you think….
AY wrote: “So then married couples not intent on reproducing are invaluable in your equation…. How about folks that have children and don’t want them or can’t afford them or are not proper to raise children in your book are less than or not valuable…..how about same sex couples adopting these children…. Is than an abomination in your eyes…..”
I’m having a little trouble understanding you, probably partly because of your word choice of “invaluable” being the opposite of what you really mean. In any case, when we identify the good of a natural law, the object of good toward which that law operates, it does not mean that there are not other aspects to consider as well. Mankind is multifaceted. In regards to sexuality, such makes up only a minor part of a person’s being, and therefore, it is a minor part of his total value. You seem to want to cast me as a hater of others because of their sexuality. That is simply not the case. Such is a projection of the homosexual agenda onto people like me, and it is not an accurate reflection of who I am or how I think.
Many consider Jesus to be the greatest man who ever lived. In regards to his sexuality and biological reproduction, he was a great big zero. It was his philosophical contributions to society and his appreciation by subsequent generations that has placed such a high valuation upon him.
The form in which man experiences the reality of his values is pleasure . . . . A chronic lack of pleasure, of any enjoyable, rewarding or stimulating experiences, produces a slow, gradual, day-by-day erosion of man’s emotional vitality, which he may ignore or repress, but which is recorded by the relentless computer of his subconscious mechanism that registers an ebbing flow, then a trickle, then a few last drops of fuel—until the day when his inner motor stops and he wonders desperately why he has no desire to go on, unable to find any definable cause of his hopeless, chronic sense of exhaustion.
“Our Cultural Value-Deprivation,”
The Objectivist, April 1966, 3
False reasoning based on a faulty premise.
Sexual behavior functions towards pleasure as well, the pursuit of which may or may not be geared toward reproduction.
To think that the sole function of sex is reproduction flies in the face of not only science – which has found that species such as bonobos (our closest primate relative) and dolphins – but in the face of casual observation and common sense. If sex was solely a function of reproduction, there would be no condoms and no porn. It’s not a case of pleasure or reproduction. It’s a case of pleasure and/or reproduction in a non-exclusionary manner.
cycle cell anemia is the one where the cell is shaped like a bike tire.
Just in case you were wondering.
Born,
You might be right… But what about the amazon women….
gbk:
interesting posts.
By the way the gene(s) which cause cystic fibrosis kept people from being killed by dysentary, cholera, typhus. People with those genes did not dehydrate due to the damaged gene.
Like cycle cell anemia and malaria.
Maybe cancer genes had some beneficial purpose as well at the beginning of our species?
AY:
from a strictly evolutionary point, that wouldnt work out too well.
Lucy got knocked up, no doubt about that. Now she may have protested but she carried the child to term and the rest is history, so they say.
David,
I wonder if you’ve ever thought that not being homosexual is an aberration….. How’s that fit with your bigotry….
AY wrote: “I wonder if you’ve ever thought that not being homosexual is an aberration….. How’s that fit with your bigotry….”
Strange how your form of bigotry demands discarding rational thinking. Sexual behavior functions toward reproduction, with the sex drive directing behavior toward that purpose. Do you really see no good in that purpose?
David,
So why do you consider yourself to be above the “mistakes of nature”? What hubris drives this audacious perspective while claiming, “genetic mutations for the most part are deleterious and not desirable”?
Do you possess a preordained wisdom that allows you to know which genetic mutations are desirable? Do you think that if we all bowed to your recursive thought “nature” would spring anew?
If you want to digress back into the dark ages of superstition then help yourself, but don’t expect many others to be with you.
I’m sick of the cultural hairs sliced for the benefit of distracting from the fact that our country, on average, has been spending $1.2 billion a day since 2005 on war. Do the math.
Your feeble concerns pale in the light of this reality. Yet you ask me to believe that the sanctity of marriage is the greatest threat I have on my plate?
We’ll meet in the empty fields of redemption, I’m sure, and have a good laugh assuming you’re capable of such.
gbk wrote: “So why do you consider yourself to be above the “mistakes of nature”? What hubris drives this audacious perspective while claiming, “genetic mutations for the most part are deleterious and not desirable”?”
Why would you even think that I consider myself above the mistakes of nature? Of course I am not. I have many deleterious genes in my body.
The point is that we can study nature and learn of laws that apply. We can observe the process of cellular meiosis and understand the value of genetic recombination. We can study the genetic code itself and observe many mistakes and the correcting mechanisms in place to deal with it. The process with civil laws is no different.
David,
“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.”
“Mistakes happen in nature . . .”
Where to begin?
Nature is the ultimate reference — what other is there? Can you point to another reference?
If your statements do not ultimately rectify with what is observable — especially given the stunning achievements of physics, astronomy, and biology in the last century, and most especially in the last couple of decades — then why should your singular thought be held in higher esteem than millions of years of adaptation of any species?
Oh, I know you will claim that this was not your argument, that you were referring to a current cultural conundrum.
But, again, you should choose your words carefully because your phrase of, “mistakes happen in nature,” leads to recursive thought and only makes sense if you consider yourself to be outside of the said set of “nature,” which, by assumption, I don’t think you mean.
“[G]enetic mutations for the most part are deleterious and not desirable.”
Homo.habilis walked into a bar and asked Homo.erectus for a light. Neither one knew what they meant.
OS,
When I read the last paragraph of Cassandorus’ column at DK, I snorted my coffee. 😀
I like to serve my arguments with a generous side of mockery, garnished with a bit of ad hominem.
Yep.
Mockery (teasing and contemptuous language or behavior directed at a particular person or thing) and the ad hominem fallacy (an argument directed against a person rather than the position they are maintaining) are not the same thing.
David,
There is a difference between an ad hominem attack and a factual observation. It is a difference many do not understand. If I say that you have made homophobic and bigoted comments, and by inference one can assume that if you believe what you write, that is not an ad hominem attack. That is an observation that could be proven to an independent jury.
However, if I were to say you are fat and ugly, THAT is an ad hominem attack. Based on what I can see in your Gravitar picture, that would not be a true statement, but a personal attack.
Blogger “Cassandorus” is a college professor who teaches this stuff. He has a nice explanatory article discussing the ad hominem logical fallacy, what it is and what it isn’t. The link below takes you to an interesting discussion of the subject.
http://www.dailykos.com/story/2010/07/15/884552/-On-the-Ad-Hominem-Argument
Randy Lee,
“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 [cite omitted] 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?”
I take pleasure in poking annoying Libertarians and seeing how they respond. Especially on a matter of style. It tells me a lot about them. And your primary flaws are major, not minor. We’ll be addressing that.
“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.”
I did answer your question. I did so in a previous post you later choose to ignore. Maybe you should consider starting your criticism by telling someone they are long winded merits a response befitting children. Putz.
“Gene criticizes, ‘If you had an attention span longer than that of a fruit fly you might have read this:[cite omitted]’
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.”
It’s not my fault you don’t want to recognize what the word “egalitarian” means. Again, that’s your intellectual failing in insisting that you get to make up the meanings of terms to suit you. Libertarians do that a lot. It makes it easier to try to pick and choose which parts of the Constitution you like and which ones you think can be violated in the name of profit.
“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.”
That’s just funny. Egalitarianism and socipathy are inherently incompatible states of mind. Sociopaths don’t consider others, only themselves. Under the law, they should all get equal treatment. How you think some imaginary Sky Daddy judges them is up to you.
“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.”
Moral absolutist gibberish. Who gets to be the moral arbiter? You? Too bad for you, laws are based on ethics – which use external objective measurement in a social context – not morals – which are an internal subjective individual judgement.
“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.”
Yep. Every single situation you can provide use to try to prove a moral absolute can be countered with a situation where that absolute will not apply. That is one reason moral absolutism fails. Another is that morality is a subjective experience and need not be rational. For example, morals based on a top ten list given to a wandering Jew by a pyrotechnic shrubbery are not all rational.
https://www.youtube.com/watch?v=CE8ooMBIyC8
Ethics in contrast are an exercise in rationality. The Law in a secular society is based on ethics, not morals. If you’re having a problem understanding the difference, here’s a handy chart at your level:
http://www.diffen.com/difference/Ethics_vs_Morals
“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’.”
Nonsense. Defense is a mitigating excuse for violence, but the choice to use violence rests with the individual. This displays the fallacy of the excluded middle. The Founders could have chosen non-violence as Gandhi later did or they could have retreated. Instead, they instigated violence. Justified by oppression, true, but they initiated violence.
instigate
verb
[with object]
bring about or initiate
initiate
verb
[with object]
cause (a process or action) to begin
“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.”
Move the goal posts much?
Your original posts:
Notice that not once do you use the word “unprovoked” in relationship to the words “agression” [sic] or “violence”, oh mover of goalposts. You came back with the qualifier after I handed you your ass on a plate. Nice try though. And by nice I mean weak and transparent.
“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.”
That is – again – not the question you asked. You asked “can it ever possibly be moral for one human to initiate agression [sic] against another?”
“Therefore I still await an example where it is appropriate and moral to initiate aggression against another equal. Can you provide one?”
Already gave one. Which you then used to effectively give me a pre-dismantled argument by attempting to retroactively add a previously non-existent qualifier. Good show.
“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.”
Actually it appears you’ve neither read nor understand the Commerce Clause nor do you understand how that clause interacts with the Necessary and Proper Clause or the limits of regulation created by Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964) or United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995). But let’s leave Federal law out of this for the time being. The relevant law is New Mexico state law. The State of New Mexico is well within their rights to define acceptable contracting practices within their state so long as they do not conflict with Federal law. Their state constitution not only provides that:
but also provides that:
Clearly the State of New Mexico is well within their delegated and conferred rights to dictate the terms of contracting and corporate behavior within their jurisdiction so long as it isn’t contrary to the U.S. Constitution. No boundaries were overstepped. Nothing has been usurped. No power exercised not conferred by their constitution.
Would you like your lil’ arm floaters back now?