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
AY:
some would say that every thing is about biology and some would say we all have a choice because we are not just our biology, we have free will.
Do I care if someone is gay? None of my business, do I want my son or daughter to be gay? Nope. But even that isnt my business.
DavidM thinks it is a destructive life style, if he engaged in it, then he has a unique position from which to argue. I have talked extensively to a friend of ours who is gay and it does not sound like a happy way to live. But that is based on the anecdotes of one individual who is gay so I cannot say all gay lives are as lonely and empty only that this person’s life is. But I know many heterosexuals who live lonely and empty lives too.
“Happy families are all alike; every unhappy family is unhappy in its own way.”
Leo Tolstoy
There are certain universal truths that lead to human happiness. DavidM is saying being gay isnt one of them. I think human happiness is based on embracing who you are as a person and living your life based on your essence.
If you are duck be a duck dont try to be a dog. Embrace your inner quacker.
Bron: ” I have talked extensively to a friend of ours who is gay and it does not sound like a happy way to live.”
Whoa, there, cowboy! You don’t get by with that. Yes, I know you qualified it so many ways, you basically rendered it meaningless. However, you wrote it, so you need to explain it.
What “way to live” is it that you find so distasteful? My gay friends are exactly like my straight friends, except with better taste and grooming. They get up and go to work, come home and make dinner, spend endless single nights trying to find a mate, have miserable relationships, have great relationships. Sometimes they have kids. Sometimes one gets sick and her partner spends months taking care of her. Sometimes they break up and act shitty. Some are promiscuous, but so are straights. I know one of my straight girlfriends has had over 300 partners. By and large, the percentage who are happy is about the same as the straights.
David,
What you are missing are the salient points made about how the law relates to people via the 14th Amendment made by those cases. A traditional view of a majority – even if it involves a moral judgement – is simply not sufficient grounds to deny others their equal rights and equal protections under the law. That’s the Constitutional aspect of it in a nutshell.
As for the procreation angle, what you are really talking about is sex within the marriage. Sex is an implied condition in the contract of marriage and in and of itself is not a sufficient reason to annul a marriage contract. When courts have agreed to annul marriages based on sex (lack of consortium, impotence, etc.) it has been because of some fraud in inducement and even then it requires that one party be willing to enforce the implied condition of the contract. If both parties enter the marriage knowing that the other has no intent to have children, or is incapable of having children, or even if they don’t intend to have sex at all, the courts are not going to use the implied sex term as a basis for annulment.
This is why marriages between infertile couples or couples otherwise unwilling or unable to have children are valid and not annulled unless having children was an express term of the agreement to marry. It should be noted that impotence has been treated differently by the courts, but I’ll get to that in a minute. Having children is an individual choice, not a legal mandate, and the court cannot overreach its power to declare that it is a defining necessary element of the marriage contract.
When the state has exercised a right in regulating sex within the context of a marriage, it has been confined to acts that are effectively material breach of the marriage contract: sex outside the union that results in children and laws prohibiting prostitution (a statutory crime). The decision to define how sex operates within the marriage, however, is a fundamental individual right of both parties and not the business of the law as a matter of privacy. This is in contrast to impotence. While having children is a private individual right of the parties and not prime facie evidence sufficient to annul a marriage absent some fraud in inducement, sexual intercourse has been considered synonymous with marriage. Because impotence will be discovered quickly, usually on the honeymoon, it can be used as a basis for annulment, if that impotence was not specifically and expressly known to the other party.
To further clarify, I point to Zagarow v. Zagarow , 430 N.Y.S.2d 247, 250 (Sup. Ct. 1980), which said “Unlike marital sexual relations, which are, per se, part of the essential structure of marriage, the parties are free to decide when and if and how often they will have children. [, , ,] If there were a pre-marital representation of an intent to have children upon which the other spouse relied and the representation was false, an annulment may be granted. But where as in this case, there was no such articulated promise the determination cannot be made on principles of contract. Attempts to read an implicit representation in the marriage contract have not won approval.”
When considered in the light of the 14th Amendment issues, procreation is not a valid state interest in marriage (absent some fraud in inducement – a contractual matter). To assert otherwise would fly in the face of Liberty Clause of the 14th Amendment.
Without relying upon a non-legal definition of marriage, you have no basis to attempt to enforce a definition of marriage that revolves around procreation as a primary defining characteristic of the marriage contract. The state’s valid interests in marriage are contractual and unless there was fraud in inducement, procreation is simply a private matter between the contracting parties.
This is why laymen should never ever be their own lawyer. In cherry picking law without understanding the greater context of the law, you have come to completely erroneous legal conclusions. You may be preoccupied with the idea that procreation is the central defining characteristic of marriage, but in general, it’s not the government’s business . . . unless it involves breach of contract.
The tax matter I’m simply not going to address. It’s not germane to the matter of the state’s interest in procreation.
Now, on a personal note, congratulations on writing a post that wasn’t bullshit. However, my sincerest sympathies that you think you need to suppress who you are be it from external pressures or from some ideological choice. It has been my experience that happiness is never found in denying who you are for whatever reason. There is great wisdom in the Delphic maxim “Know thyself.” There is even greater wisdom in realizing that true happiness comes from within and is not found in the approval of others. While it may be covered by thoughts, fears and the expectations of others, the key to happiness is within you first and foremost. I don’t know how or who is responsible for the idea that got into your head that being homosexual means you are somehow broken or a freak not deserving to live as you were created, but I do know that is a toxic, bad, unethical notion based on denying you happiness based upon the bigotry of others.
Have a spine, man. Being a homosexual does not deprive anyone else of their property, it does not break their leg and it does not make them literally insane. But not being who you are does deprive you of your property – your liberty interest in the pursuit of happiness for one thing, it also breaks you spirit and breaks your mind eventually. You will never “get over” being gay (or bisexual or any other spot on the spectrum of human sexuality). You either are or you are not, abstinence notwithstanding. Stand up for yourself. Be who you are.
You’ll be happier in the long run.
In fact, it may be the only way you’ll ever truly be happy.
Living an authentic life can be difficult when you’re in the minority, but it beats the Hell out of living a lie.
Good luck.
And I mean that with zero snark or sarcasm.
Bron,
What Juliet said…. Most folks that have a problem and try and control another’s action usually have the same issue that they are trying to control…..
In as much its not a choice to be homosexual, gay, lesbian….. It’s not like smoking …. Or what color car to buy…… It’s s as much as a person as the nose on their face….. It’s genetics….
Bron: “Would you consider it wrong for a person to try and help a person who over eats and is obese?”
First, being gay is not a behavior to be modified. Second, there is nothing intrinsically harmful about being gay or having “gay sex.” Third, I’d be offended as hell if someone who is himself obese had the unmitigated gall to instruct me on how to not be obese.
AY:
if you read his posts, he is agianst homosexuality because he thinks it is a destructive life style, he is not agianst the person. He is trying to help people in his opinion. So no, it isnt shocking he feels that way.
Would you consider it wrong for a person to try and help a person who over eats and is obese? It doesnt necessarily harm you and it is a choice or it is genetic. Some people dont think it is good, some people dont care, some dont like fat people and some want to help.
DavidM:
my hat is off to you, that took some big stones to write that especially in this forum.
I for one dont think it was a freudian slip based on your other writings which are quite measured and thought out. I think you were so frustrated trying to get people to understand your point, you just said fuk it.
David, the logically and legally challenged.
The marriage contract is not about procreation. It is about a legally binding contract of mutual support, inheritance, health care, and taxes. Nothing in marriage laws make procreation a requirement. Marriage is not a requirement for procreation. People can and do procreate without marriage.
As for taxes, again it is not about procreation. If that were the purpose, the tax breaks would only come after the couple produced children. How about me? The chances of me getting remarried is somewhere between nil and none, but I so chose, I could. Even if I got married again, the chances of me fathering another child is absolutely zero. However, the law can and does happily endorse people my age getting married, and gives us the the tax breaks, as well as all the other enumerated benefits, rights and responsibilities.
Yet, when people my age get married, people like you throw flowers and rice as they say, “Isn’t that sweet; they make such a cute couple.”
DavidM writes.
“We really need to evolve into a society who see ourselves as common human beings with the same rights and desires. Sure, we all have differences, and we should not pretend that they are not there, or that these differences do not matter, but we also do not need to let these differences create a polarization such that we do not recognize the common humanity of others. It really all boils down to loving one another (and I mean loving in a non-sexual way”
……. Really?! you wrote that?
Mr. BlueFish,
I was as taken back as you…. Wow…. David actually wrote something humanitarian …..
I’m pretty sure I’ve mentioned this before, but people who think being gay is a choice are probably making a choice not to act on their own homosexuality. You see, I cannot choose to be gay, because I am not sexually attracted to women. I love women. (We’re awesome. What’s not to love?) I think women are beautiful. I think boobs are lovely. But I could not embark on a relationship with a woman, because it’s just not physically or emotionally appealing to me.
DavidM, I’m sorry you’ve been denied the freedom to be your authentic self. I truly am. I hope you’ll find the courage to be who you are, as the country becomes more gay-friendly and inclusive.
David sez: “I am not a practicing homosexual. I could easily become homosexual if I so chose to be.”
******************************************
David, we all see what you did there. Freud would be proud of you, but wouldn’t it be a lot easier if you stopped fighting it? That must take a lot of psychic energy.
Yes watch out for those Irish wearing English names.
Jeez,
I left a message for David regarding his admission regarding homosexual activities….still no answer…..
Excellent Juliet…. Now watch out for those Irish wearing English sir names…. They can be tricky….no actually gene is nice….
Aw! You guys are making me blush! I heart y’all’s big ole brains, too.
Theocratic are having a sad because Ruth Bader Ginsberg conducted the wedding vows of a same sex couple.
As someone pointed out, this brought out the battle cries of stupid on the boards:
“We need to be in prayer for our nation. We’ve seen that a federal recognition of same-sex marriage essentially results in the criminalization of Christianity.”
“Doesn’t this just prove that we’re no longer slouching towards Gomorrah, we are galloping full speed ahead towards it.”
Of course, they did not come out in full war paint when Justice Thomas, a devout Catholic, presided over Rush Limburger’s third wedding. Or was it the fourth? In his case you need a scorecard. Sanctity of marriage, etc. Where wuz they then?
Juliet,
If you weren’t married, I just might be developing a crush on someone other than Rachel Weisz. And Milla Jovovich. And Emily Rose. And Lauren Bacall in “Key Largo”.
You rock.
But you can’t take that too seriously. I’m Irish. I fall in love about ten times a day. 😀 Nonetheless, it is offered as compliment.
Zing! Juliet wins the Intenets.
BTW, the Freudian slip is priceless.
“My arguments have rested on citations from Loving v. Virginia, Maynard v. Hill, Skinner v. Oklahoma, and several other court cases. When Gene attempted to win the argument by referring to his superior legal credentials, ”
Oh, I didn’t attempt to win anything.
I did win.
I have explained in great detail how your reading of both of those cases is simply wrong as a matter of logic and legal reasoning. To which you have responded with the equivalent of “you don’t know what you’re talking about”.
The diploma on my wall reads “Juris Doctorate”, David.
Your “argument”, such as it is, is based on your moral disapproval of homosexuality and a desire to maintain the traditional religious definition of marriage instead of the legal definition.
It’s not a fallacious appeal to authority if you actually are an authority. Finnis’ argument is specious reasoning and for the same reasons I’ve pointed out over and over again when you’ve advanced them: procreation is not a valid state interest in marriage. I cited lists and lists of cases that back that fact including United States v. Virginia et al. (94-1941), 518 U.S. 515 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003). In United States v. Virginia, SCOTUS held that tradition alone was insufficient cause to deny citizens the equal protection of the law under the 14th Amendment. In Lawrence v. Texas, SCOTUS held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct also violates the Due Process Clause. In this case, they overturned Bowers v. Hardwick and supported Justice Stevens’ dissent from that case, noting that “[t]he fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice”. But here, try this on for size:
Marriage is a private act, a contract, with a public record (a license) because it is a contract with very specific rights, duties and obligations vis a vis third parties upon dissolution or termination.
Got that?
Your moral disapproval and appeals to a traditional religious definition of marriage are constitutionally insufficient claims.
There is another problem with Finnis’ argument. It is one giant exercise of the Moralistic Fallacy: when one argues an “is” from an “ought”.
He, like you, is arguing what you want the law to be.
I’ve been arguing from what the law actually is.
That is why you both lose.
There is an additional flaw in Finnis’ premise that laws protecting heterosexual marriage “strengthen the family”. They in fact weaken families because of state sponsored discrimination against any family member that is homosexual. The inverse is true. The recognition of equal rights and equal protection serve to strengthen the family in fact for all members of the family by giving them all the equal protection and equal rights under the law.
Run along now, lil’ troll, run along.
Gene H wrote: ” procreation is not a valid state interest in marriage. I cited lists and lists of cases that back that fact including United States v. Virginia et al. (94-1941), 518 U.S. 515 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003).”
Allow me to ask you to clarify this point you make. I just want to make sure that I am not overlooking something important.
Neither of these cases have anything to do with procreation, yet you say that these cases back up your allegation that “procreation is not a valid state interest in marriage.” Although you continued to pontificate in your post, none of it connected this thought of procreation with your citations.
United States v. Virginia had to do with not allowing Virginia Military Institute to be an all male school. Lawrence v. Texas was about striking down anti-sodomy laws based upon privacy rights. Neither of these are even remotely connected with procreation and marriage, which is contrary to your assertion.
In contrast, two of the cases I cited actually used the term procreation and clearly were about the connection between procreation and marriage.
To be clear, I would agree that procreation is a fundamental right requiring strict scrutiny review. The government has very little right to interfere with it. Nevertheless, the government can create public policy that encourages procreation through marriage because such creates more stable societies with children at less risk to engaging in criminal behavior as they grow into adulthood.
A second question I have is, what is the purpose of benefits offered to married couples, such as the tax benefits of IRS filings? If the purpose is not to encourage procreation through marriage, what legitimate government interest does it serve? It seems to me that if your so-called fact was true, then these benefits would be illegitimate and should be eliminated.
AY
I saw that now and left a comment
http://jonathanturley.org/2013/09/09/ninth-circuit-reverses-federal-judge-who-ruled-that-false-statement-of-prosecutor-in-closing-argument-was-harmless/#comment-651922
David,
“Clearly, I am in disbelief that you would argue that my so-called ‘theocratic position of authority’ (which is completely non-existent) has been my ONLY argument.”
Yeah, you’re right on that one, it has not been your only argument, my apologies.
However, this doesn’t change the fact that when speaking your own mind and not referencing others you quickly gravitate to theocratic and paternal authority.
Now, I’m really outta here.