Recently in New Mexico, Elane Photography (a husband and wife who shoot weddings) was sued by Vanessa Willock because they would not photograph a commitment ceremony between Willock and her girlfriend, due to the photographers' Christian beliefs. The photographers were ordered to pay $6000 to the plaintiffs by the New Mexico Human Rights Commission. According to the husband, "We wanted to make sure that everything we photographed — everything we used our artistic ability for, everything we told a story for or conveyed a message of — would be in line with our values and our beliefs." This case is disturbing on two levels. It violates two clauses of the First Amendment. It violates the right of conservative Christians to practice their religion as they see fit. Yes, it was a company, so some compared it to refusing service or firing someone because that person is gay. However, these photographers just didn't want to photograph a gay wedding, because they saw it as promoting something that they don't agree with. By this measure, it is also compelled speech, which freedom of speech protects against. I believe that gays should have rights equal to the rest of us. However, they have absolutely no right to have everyone approve and promote what they do.
Gay Rights vs. The First Amendment
By donttreadonme - Posted on August 5th, 2008
...but I will do my best to respond to the major points of your comment.
Citizens have a right to their private religious beliefs and practices. However, they do not have a right to discriminate against other citizens in business arrangements that take place in public accomodations because of those beliefs. Congress chose to prohibit discrimination in public accomodates in Title II of the Civil Rights Act of 1964, and the Supreme Court established a landmark precedent on the matter in Heart of Atlanta Hotel vs. U.S. (1964). And before you launch into the predictable, "but that doesn't include gay people," the Supreme Court also established that acts such as the New Mexico Human Rights Act (which declares it unlawful to refuse to offer services to a client on the grounds of that client's sexual orientation) are "well within the States usual power to enact when a legislature has reason to believe that a given group is the target of discrimination" and that such acts "do not, as a general matter, violate the First or Fourteenth Amendments." (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995)).
The Hugeunin's were aware of the laws that governed their business (or as responsible business owners should have known), and their actions plainly violated the NMHRA. There is absolutely nothing in this cases that can legitimately said to have prevented this couple from practicing their religion. The service that these people offered was NOT advertised as a religious, and the fact that the owners treated their discrimination as an "unwritten company policy" (per the Hugenin's own testimony), would seem to indicate that they DID know that their refusal to perform their services for the couple who attempted to hire them was illegal. People very often try to use their religion as an excuse to discriminate against their fellow citizens, but the legal fact is that the First Amendment does not provide them with this right.
If you're interested, you can read the DECISION AND FINAL ORDER of the NMHRC regarding this incident, here.
TTFN,
Blackout
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Yes, I've changed my username from "percivale" to "Blackout." Go here if you want to know why.
Perhaps it's because it's not in my nature to discriminate for reasons such as race, religion, sexual orientation, etc. but I never understood why any business would refuse service to anyone, if for no other reason than the fact that they're basically turning away money.
:idk:
I am treated as evil by people who claim that they are being oppressed because they are not allowed to force me to practice what they do. ~D. Dale Gulledge
Religion is only one thing. Forcing Elane photography to photograph an event that they do not agree with, regardless of religion, is tantamount to coerced speech. Even if it is illegal to refuse to offer your services to a gay person, a photography company is allowed to choose what events it will photograph. From the court's decision, a gay photographer cannot refuse to shoot a gathering of fundamentalist Christians. And this argument has nothing to do with my opinion on homosexuality, as you have assumed. I am for the legalization of gay marriage. It has to do with the fundamental freedom of expression for artists, and my objection to being forced to promote something that one doesn't agree with. If, as you say, this is covered under non-discrimination laws, than I will be sure to vote and contribute to campaigns against these laws, as new ones are still coming up regularly. This case is being appealed, and I think the Supreme Court will reverse this decision, assuming it is doing its job.
my objection to being forced to promote something that one doesn't agree with.
There's the point, though. They don't have to advertise it. They just aren't allowed to refuse to photograph it. There's not a single line in that case that says the pictures from it have to be posted on the public website or put in the company's portfolio.
I am treated as evil by people who claim that they are being oppressed because they are not allowed to force me to practice what they do. ~D. Dale Gulledge
Religion is only one thing. Forcing Elane photography to photograph an event that they do not agree with, regardless of religion, is tantamount to coerced speech.
Factually incorrect. As noted above, the Supreme Court has ruled that in general, statutes of this type do not represent an unlawful violation of the First Amendment. As a business providing a service in public accomodations, this company has an obligation to abide by all applicable laws, and in this case it clearly and knowlingly violated the NMRHA. A photographer who takes pictures of an event is not a participant in the event itself, and there is no reasonable argument that would permit the assumption that taking pictures of a wedding implies that the photographer is a ideological supporter of the event itself.
Even if it is illegal to refuse to offer your services to a gay person, a photography company is allowed to choose what events it will photograph.
Factually incorrect. The NMHRC ruled that neither the State nor Federal statutes included any exemption of this sort. In fact, these statutes specifically include any and all services that occur in public accomodations.
From the court's decision, a gay photographer cannot refuse to shoot a gathering of fundamentalist Christians.
Correct.
And this argument has nothing to do with my opinion on homosexuality, as you have assumed. I am for the legalization of gay marriage.
I'm not sure where you got this. Of the comments I have read so far (including my own) I have seen no assumption being offered regarding YOUR opinion on same-sex marraige.
It has to do with the fundamental freedom of expression for artists, and my objection to being forced to promote something that one doesn't agree with.
Factually incorrect. If Mrs. Hugenin had been acting as a private citizen who was simply creating art, this argument might have merit. But in the context of her business, which was to provide photographic services to paying customers, such arguments are baseless.
If, as you say, this is covered under non-discrimination laws, than I will be sure to vote and contribute to campaigns against these laws, as new ones are still coming up regularly. This case is being appealed, and I think the Supreme Court will reverse this decision, assuming it is doing its job.
Unlikely. In reality, this is a pretty standard ruling and is supported by a significant body of precedent. The Court has consistently ruled that States can enact more restrictive anti-discrimination laws that what exists at the Federal Level. It would take a pretty radical restructuring of the SCOTUS to overrule something that is this well-established in the caselaw.
TTFN,
Blackout
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Yes, I've changed my username from "percivale" to "Blackout." Go here if you want to know why.
Just out of curiosity, how would the court case pan out if it were nudists who hired the photography company and wanted them to photograph some nude event - could the nudists sue if the company were to refuse?
I am not picking a side in this debate, I am just curious how far the law is willing to take any sort of refusal of services.
And what if a patron has a problem with a bartender at a bar and gets permanently banned from the bar? Can the patron sue to be able to get back into the bar?
I guess I do think, in general, that people resort to law suits all too often. Why couldn't the couple just use a different photographer? I sure as hell wouldn't want someone who disagreed with my lifestyle even attending my even let alone photographing it. If they had photographed it, who's to say they wouldn't have taken shitty pictures just because they did not want to be there in the first place? Many people are judgmental ass holes, taking them to court doesn't really solve anything except cause more hate.
I can see how in some professions this may be impossible, for example, emergency room doctors and nurses. They could not refuse to treat someone based on discriminatory circumstances.....I guess, in my eyes, I wouldn't want to give my money or business to anyone that would judge me in any sort of negative light. Instead, I would probably just spread the word of their true personalities and see if people would quit using their business on principle rather than going to court.
I don't know, I guess.....
No and no.
1. Nudists are not a protected group, homosexuals are (see blackout's response, above).
2. An individual is not a protected group. If the individual got kicked out of a bar or any other business, that is solely the fault of the individual and has nothing to do with discrimination.
I am treated as evil by people who claim that they are being oppressed because they are not allowed to force me to practice what they do. ~D. Dale Gulledge
Damn. I always thought it would be fun to be a nudists, but if I wouldn't have any rights, well, maybe I'll just remain clothed..... :-!!
>Why couldn't the couple just use a different photographer?
Actually it was sort of a case of "activist entrapment". Basically these two lesbians sent requests to a bunch of photographers, waiting for somebody to pass up the offer on the grounds that they were against gay marriage, so they could take them to court.
Now THAT I think is bull shit. People are WAY too sue-happy these days.
...the couples were seeking a photographer for their actual wedding (which took place on Sept. 15, 2007). When they approached this company, they were declined service. That was illegal. The couple then contacted the same company again, and refrained the second time from noting that they were a same-sex couple, and received a completely different response. This was necessary in order to establish a prima facie justification for the discrimination claim. It was not "entrapment," since the illegal denial of service took place during the first contact between the company and the potential client, during which the couple clearly stated that they were requesting services for a same-sex marriage. The very first e-mail sent to Elaine Photography said:
The crime occured when the company denied service following the receipt of this e-mail. The subsequent requests that didn't mention the same-sex issue simply established evidence that proved that the company's illegal discrimination was intentional.
TTFN,
Blackout
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Yes, I've changed my username from "percivale" to "Blackout." Go here if you want to know why.
>Nudists are not a protected group, homosexuals are.
another violation of the Constitution.
Please use the reply button, it helps maintain the flow of conversation.
Also, would you please elaborate what you mean?
I am treated as evil by people who claim that they are being oppressed because they are not allowed to force me to practice what they do. ~D. Dale Gulledge
The language of the court document blackout posted said that homosexuals are a protected class. The fourteenth amendment guarantees equal protection to all citizens. Generally, anti-discrimination laws do not label any group as protected, but outline qualities that it is illegal to discriminate against, such as race, religion, sexual orientation. For example, there are quite a few hate crimes committed by blacks against whites every year. The New Mexico courts called homosexuals a protected class, instead of sexual orientation, showing the ideology behind this decision. Now I feel that the photographer had ways around the situation. For example, she said she only shoots traditional weddings. The fact that she was asked to shoot a commitment ceremony meant that she could have just said "I don't do commitment ceremonies," and since gays can't get married in New Mexico. Now in addition to what I see as a violation of the constitution, I have a moral problem with this whole situation and others like it. The reason homosexuality has become tolerated in our society is because our society is pluralistic, which I think is good. While many people don't agree with it, they see it as an individual's right to live as he or she chooses, so long as they are not hurting anyone else. However, a lot of the gay rights movement now is about eliminating and prosecuting homophobia, even homophobia in the sense that someone thinks being gay is wrong, or, in this case, refusing to take part in a gay wedding. So gays will not allow for diversity of opinion and refuse to just say to people who are against homosexuality, "well I disagree with your opinion, but it is your right to have it and express it, although I will try to sway public opinion away from yours". Diversity and tolerance is what liberated gays, but many of them refuse to allot that to their opponents.
The language of the court document blackout posted said that homosexuals are a protected class. The fourteenth amendment guarantees equal protection to all citizens. Generally, anti-discrimination laws do not label any group as protected, but outline qualities that it is illegal to discriminate against, such as race, religion, sexual orientation. For example, there are quite a few hate crimes committed by blacks against whites every year. The New Mexico courts called homosexuals a protected class, instead of sexual orientation, showing the ideology behind this decision.
Factually incorrect. The NMHRA mirrors the language of the federal Civil Rights Act of 1964 very closely. Did you even read the links I provided? The NMHRA reads as follows...
The court document I provided to you is very specific in regards to the language of the charges as defined in the statute. The referral to "protected classes" is a common legal phraseology associated with statutes of this sort. Your accusation is completely spurious.
Now I feel that the photographer had ways around the situation. For example, she said she only shoots traditional weddings. The fact that she was asked to shoot a commitment ceremony meant that she could have just said "I don't do commitment ceremonies," and since gays can't get married in New Mexico.
One the one hand...maybe the photographer could have done as you suggest. But she didn't. She was wearing her bigotry on her sleeve, and was quite up front about her intention to discriminate against this couple. Of course, I don't think that it makes discrimination any less despicable (or for that matter, any less illegal) by trying to find clever ways to skirt around the intent of an anti-discrimination statute.
Now in addition to what I see as a violation of the constitution,
On what basis do you think this is a violation of the Constitution? The Supreme Court has already ruled in cases similar to this, and has consistently held that statues of this sort are not unconstitutional. Its all fine and good to have an opinion, but the simple fact is that yours does not appear to be well-grounded in an understanding of Constitutional Law.
I have a moral problem with this whole situation and others like it. The reason homosexuality has become tolerated in our society is because our society is pluralistic, which I think is good. While many people don't agree with it, they see it as an individual's right to live as he or she chooses, so long as they are not hurting anyone else. However, a lot of the gay rights movement now is about eliminating and prosecuting homophobia, even homophobia in the sense that someone thinks being gay is wrong, or, in this case, refusing to take part in a gay wedding. So gays will not allow for diversity of opinion and refuse to just say to people who are against homosexuality, "well I disagree with your opinion, but it is your right to have it and express it, although I will try to sway public opinion away from yours". Diversity and tolerance is what liberated gays, but many of them refuse to allot that to their opponents.
Complete B.S. The reason that gays are more tolerated today, is because as a community we stood up for ourselves...very vocally and aggresively, and refused to allow other citizens to trample on our rights as citizens. Even then, there has been and continues to be pervasive discrimination against our community, and what freedoms we DO enjoy have been recognized almost exclusively due through constitutional litigation. The recognition of our rights has very little to do with the imagined willingness of society at large to "tolerate" or "diversity."
The arguments you present are OLD ones, and in fact mirror the arguments offered by previous generations to discriminate against citizens because of their race or religion. This isn't about the personal beliefs of the photographer...in her personal life she is completely free to believe what she wishes to believe, and to act accordingly. However, our experiece with other forms of invidious discrimination has led to some very specific laws that control what people can and cannot do in public accomodations. These laws are neither new nor unusual. When you engage the public through your business, you have to treat your potential clients equally. This photographer did not do this, and got caught, and had to pay the price for breaking the law.
TTFN,
Blackout
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Yes, I've changed my username from "percivale" to "Blackout." Go here if you want to know why.
>On what basis do you think this is a violation of the Constitution? The Supreme Court has already ruled in cases similar to this, and has consistently held that statues of this sort are not unconstitutional. Its all fine and good to have an opinion, but the simple fact is that yours does not appear to be well-grounded in an understanding of Constitutional Law.
The Supreme Court's opinion may have the official job of interpreting and upholding the integrity of the Constitution, but it is completely within reason for me to disagree with their interpretation. I think it's a violation of the Constitution because I don't think one forfeit's their First Amendment rights because they open a business. And considering the fact that justices are entitled to write a dissent if they disagree with majority opinion, the most knowledgeable people in the world in regards to the Constitution can say the Supreme Court decisions are wrong. Now clearly your agenda is focused on gay rights, and I will admit that mine is focused on personal freedom and a belief that First Amendment rights are near absolute, so we're obviously not going to agree, but I still have a few more points. I think it serves to point out that in many cases, businesses that involve relationships are allowed to cater specifically to gays or straights, and it is not seen as the same as simply denying a service to someone based on their sexual orientation. The most obvious examples are personals websites. eHarmony has been publicly criticized for not offering a gay option. They've been sued, but they have not changed. I doubt Planetout.com's personals would hook me up with a woman. A wedding photographer, who's business is pretty much based around relationships, should be treated the same. Another ruling, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, could also be seen as a similar situation. Now, the parade was put on by a private group, but it was a public event, and the group running the parade would not let a gay activist group march with signs supporting their message, because they did not agree with the message. The IAGLBGB sued, and, while they won in the first year, when it was brought before the Supreme Court in 1995 they ruled that the group putting on the parade could not be forced to promote that message.
>Complete B.S. The reason that gays are more tolerated today, is because as a community we stood up for ourselves...very vocally and aggresively, and refused to allow other citizens to trample on our rights as citizens. Even then, there has been and continues to be pervasive discrimination against our community, and what freedoms we DO enjoy have been recognized almost exclusively due through constitutional litigation. The recognition of our rights has very little to do with the imagined willingness of society at large to "tolerate" or "diversity."
While society at large was not willing to tolerate homosexuality when it became legally
tolerated, a large enough portion of the educated population was, and this would unlikely have been the case before the sexual revolution and various related movements involving a "different strokes for different folks" philosophy. And, while I'm not applying this to all gays, or even all gay-rights activists or groups, there exists many who no longer are satisfied with this attitude, who want the laws to, like they do in Canada and Sweden, among others, essentially prevent any form of publicly expressed homophobia. Now, I am someone who believes that even publicly expressed racism should be allowed, so long as it is not in the realm of threats or calls to harm. However, homosexuality is different still. While I fully agree that homosexuals have the same rights as everyone else, and believe that it is not a choice and therefore calling gays immoral is not rational, and is cold-hearted and narrow-minded. However many of the world's most adhered-to moral codes stigmatized homosexuality, and some people feel that they have to take it literally. And while obviously they can't be allowed to stone gays, or even discriminate against them in a way that deprives them of their essential rights (such as housing), there are certain things that these people feel go against their moral code, such as refraining from preaching against homosexuality, or doing business that could reasonably be seen as promoting homosexuality. I think being involved in a commitment ceremony is one of these things.
The Supreme Court's opinion may have the official job of interpreting and upholding the integrity of the Constitution, but it is completely within reason for me to disagree with their interpretation.
Yes and no. On the one hand, people are entitled to their opinion, and if you're differs from that of the Court...well, as I said...people are entitled to their opinions. But as to whether or not that opinion is reasonable is a something else entirely. The Court has the authority to make definitive statements about the meaning of the Constitution. And when the Court issues a ruling, everyone who disagrees with them is--by definition, really--wrong (at least for all practical purposes), up and until the point that the Court changes its mind (which of course it sometimes does).
I think it's a violation of the Constitution because I don't think one forfeit's their First Amendment rights because they open a business.
But you see...that's the rub. Saying that one can't discriminate against people in public business dealings, does not in any way prohibit the free exercise of one's speech or religion. And even if we did grant that point, the Court has ruled that preventing this kind of discrimination represents a compelling interest of the State, which would justify that abridgment if one did in fact exist.
Now clearly your agenda is focused on gay rights, and I will admit that mine is focused on personal freedom and a belief that First Amendment rights are near absolute, so we're obviously not going to agree, but I still have a few more points.
I would contend that your position seems to be personal freedom and First Amendment rights for everyone EXCEPT gay people. After all, there are churches that are perfectly willing to perform same-sex marriages. What are the blessings of SOME religions granted legal status by the State, but not others? That seems like a pretty clear First Amendment issue, to me. And, since the right to chose one's partner in marriage--including its legal recognition--is defined in this country as a basic right, why is that everyone gets to enjoy that freedom EXCEPT gay citizens? I would suggest that the "personal freedom" for which you claim to advocate seems a bit one-sided, to me. Real FREEDOM means that everyone else gets to be free, too.
I think it serves to point out that in many cases, businesses that involve relationships are allowed to cater specifically to gays or straights, and it is not seen as the same as simply denying a service to someone based on their sexual orientation. The most obvious examples are personals websites. eHarmony has been publicly criticized for not offering a gay option. They've been sued, but they have not changed. I doubt Planetout.com's personals would hook me up with a woman.
That's not surprising, since the suite against eHarmony hasn't been decided yet. *rolls eyes* The last I heard (back in June) the case was still pendning a class action certification by the California courts. As for Planetout.com, they are also located in California, so whatever the eventual ruling comes out of the Carlson suit would in all likelihood apply to them, too.
A wedding photographer, who's business is pretty much based around relationships, should be treated the same. Another ruling, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, could also be seen as a similar situation. Now, the parade was put on by a private group, but it was a public event, and the group running the parade would not let a gay activist group march with signs supporting their message, because they did not agree with the message. The IAGLBGB sued, and, while they won in the first year, when it was brought before the Supreme Court in 1995 they ruled that the group putting on the parade could not be forced to promote that message.
You might not have noticed, but I linked to that very case in the SCOTUS, above. If you had actually READ that case, you might have understood that the Court in that case granted certiorari because the parade was ruled not to be a public accommodation in the sense that the Massachusetts law describes, and that the "peculiar application" of the law in this case served to suppress speech that was intended to be expressive, and the First Amendment thus applied. The Court did, however, also rule that...
The Court also pointed out that...
So I'm sorry, but you really just don't know what you're talking about.
And while obviously they can't be allowed to stone gays, or even discriminate against them in a way that deprives them of their essential rights (such as housing), there are certain things that these people feel go against their moral code, such as refraining from preaching against homosexuality, or doing business that could reasonably be seen as promoting homosexuality.
I agree with you in principle, however I think you have an odd idea about what actually constitutes an "essential right." The right of equal access to public accommodations IS an essential right, that has long been established in constitutional law. The Hurley case points that out very plainly.
I think being involved in a commitment ceremony is one of these things.
If the photographer had been acting as a private citizen, I would agree with you. But she wasn't. She was operating a business which enjoys the purview of operating in the public square, and as such she has to abide by the laws which govern public accommodations. That includes abiding by her State's non-discrimination laws.
TTFN,
Blackout
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Yes, I've changed my username from "percivale" to "Blackout." Go here if you want to know why.
But let me attempt to throw a spike in this debate. What if it wasn't a gay wedding the photographer had an objection to? What if it was a wedding between a black man and a white woman and the photographer had a religious or moral objection to interracial marriages and didn't want his photography company promoting them? Would we consider the same ruling coerced speech then? I think that when it comes to business matters businesses must be required to service legally protected statuses equally, to make an exception would open the door for businesses leaders to make life unlivable for any group they want. However, I believe that these photographers have the right to communicate their objections as loudly as they wish, only they should keep them outside the business sector.
Kudos Donttreadonme, this post really got me thinking. We must not forget our constitution when we protect groups from discrimination. Thanks!