Box Turtle Bulletin
News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyJune 5th, 2012
A favorite excess of the homosexual lobby – as iterated by those who think that there is such a thing – is the story of Elaine Huguenin and Elane Photography. Four years after this story broke, this is still one of the few examples in which it seems as though laws drafted to protect gays and lesbians from discrimination actually may infringe on the rights of others to live their lives in accordance with their values.
The facts are simple:
Elaine Huguenin and her husband operate Elane Photography. Elaine is the sole photographer. Vanessa Willock sought out Elane’s services to photograph her commitment ceremony to Misty Collinsworth. Huguenin politely responded to let her know that she does not photograph same-sex weddings. On December 20, 2006, Willock filed a charge of discrimination against Elane Photography.
This story troubles me. On the one hand, I do not wish for gay people to be subjected to discrimination or be denied services. On the other, I do appreciate the uniqueness of photography services, a business that places the individual in environments not of their choosing and with levels of intimacy that are not a part of most occupations.
My sympathies in this case evolved to support Elaine Huguenin. It seems to me to be unfair to demand that an individual (and in the case of small businesses like Elane Photography, it is an individual) be forced to provide services at the time, place, and convenience of anyone for any reason. And whether Elaine’s objection is based in race, religion, orientation, or any other personal quirk however benign or ignoble seems irrelevant. At some point, one’s body is one’s own and to insist that one must work for me or not be allowed to work in their field at all is to gallop down a road that leads to some very ugly places.
But the courts have consistently found that Elane Photography violated the law. And on Thursday, the Court of Appeals upheld the ruling.
I think the law is unfair. It should be amended to allow individuals or tiny businesses some autonomy without boards and courts dictating the minutia of hurt feelings and obnoxious entitlement that each feels over the other. The cause of non-discrimination would not be hindered by limiting such laws to employers with more than a few employees.
But for me, perhaps the saddest part of this is that in our Culture War mentality, leaving other people alone is equated with defeat. And forcing others to do or not do as we wish is winning. Although it impacts them not in the slightest, if an anti-gay activist can get a gay person denied a right or service, they “win”. And though Huguenin’s beliefs harmed no one (even Willock was no more harmed than if Huguenin had another same-sex wedding to film on that day), it is a “win” for our community if she is forced to provide a personal service that she doesn’t want to provide.
I wish we could accommodate each other better. I wish we didn’t hate each other so much.
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tim
June 5th, 2012
No one wins in a case like this. Gay rights aren’t advanced. The rights to manage your own business and work aren’t made clearer.
Personally I’ve grown tired of individuals calling foul and suing whenever they feel even remotely put out.
Vanessa Willock and Misty Collinsworth aren’t heroes to the movement.
Priya Lynn
June 5th, 2012
Businesses must adhere to a whole bunch of rules on how they conduct themselves. This is no different than any of the other rules people take for granted they must follow when they operate a business.
A business owner that doesn’t want to collect taxes on behalf of the government could just as easily say “At some point, one’s body is one’s own and to insist that one must work for me or not be allowed to work in their field at all is to gallop down a road that leads to some very ugly places.” and it wouldn’t be any less absurd.
If you want to run a business you follow the rules or you’re entitled to go do something else – no one is forced to do anything.
Vanessa Willock and Misty Collinsworth are heroes to the movement.
Mark F.
June 5th, 2012
Priya Lynn:
Yes, one has to follow the law just because it is the law. One should never consider whether or not it is just or not.
You think forcing someone to do something against their will for your personal benefit is “heroic.” I think it is pathetic and wrong.
SteveInMI
June 5th, 2012
Timothy, I couldn’t disagree more with your conclusions in this case. My viewpoint is biased by having grown up in a small town. You want a photographer? There was ONE professional photographer working in this town. You want to buy retail farm supplies? One store. When it came to some personal services, we were lucky; there were (usually) two barbers.
This isn’t a situation where you let merchants discriminate and allow the market to punish them; if the photographer refused to provide their services, you simply didn’t get your picture taken.
This is akin to a photographer saying she’ll only shoot Lutherans. If the town is 90% Lutheran, she’ll do a brisk business. But the effect is one of mercantile totalitarianism: live the way the majority tells you, or live without commercial services. If she said she’d only shoot (photographically) white clients, there would be an uproar. If the sign on the door said “no Jews” or the standard contract excluded divorced clients, we would say it was an obvious case of illegal – and immoral – discrimination. We minimize ourselves when commercial service providers are held to a looser standard of discrimination against LGBT customers than against others.
And I take *strong* issue with your closing comments: “I wish we could accommodate each other better. I wish we didn’t hate each other so much.” This is the falsest of false equivalences. *We* are not the ones telling Miss Photographer that we won’t plan her wedding, or be her banker, or wait on her table, because she’s white or female or Christian or straight. OUR community is the one trying to treat our neighbors equally; THEIR side is the one using the power of the majority to reduce what we have access to. I can’t see any excuse for saying we’re treating “each other” in a similarly objectionable way.
If I’m misreading what you’re trying to say in your article, please speak up and help me understand what I’m missing.
Mark F.
June 5th, 2012
I look forward to the day when a black photographer is forced to photograph a White Supremicist Rally. After all, if you own a business you shouldn’t be entitled to discriminate against someone because of their offensive political beliefs, correct?
Henri
June 5th, 2012
So if I were self employed as a massage therapist or physician, which also involves some level of intimacy, I should be able to turn away people based on their sex or color?
Priya Lynn
June 5th, 2012
Mark said “You think forcing someone to do something against their will for your personal benefit is “heroic.†I think it is pathetic and wrong.”.
More hyperbole please. How about telling us how this is equivalent to the government raping Elaine? After all, someone’s using her body against her will.
Oh, yes, I agree with you now, forcing Elaine to do the job she freely chose to do and has done hundreds of times happily and will continue to do in the future with no qualms whatsoever automatically becomes some kind of slavery just because she thinks these two make an ugly couple.
I don’t buy it. This is trivial for Elaine, its nothing she hasn’t done hundreds of times before.
An infringement on her right to live according to her values would be denying her the right to marry unless she chose a same sex partner. Doing yet again the same job she’s always done is no infringment on her values.
If Elaine was solely motivated by not wanting to do this job she could have easily made an excuse about being busy, or sick, or some such thing, but that wasn’t her motivation. She wanted to make an example of this couple, she wanted to rub it in their faces that she thought they were abominations and so she made a point of telling them she wouldn’t do it because they were a same sex couple. She wanted a confrontation and she got one so don’t expect me to feel sorry for some bigot being “forced” to do the exact same job she’s always happily done before.
There’s some crazy people who also think its slavery for the government to take control of their bodies and force them to work collecting sales taxes on behalf of the government. No rational person has any pity for them and no rational person should have any pity for Elaine.
Raybob
June 5th, 2012
@Henri,
I am a self-employed massage therapist. The laws in my state make it clear that, legally and ethically, I cannot turn people away based on gender or skin color. Many therapists do, however, sliding into this grey area by claiming “specialization”.
Secret Advocate
June 5th, 2012
There was a time when privately owned swimming pools had signs that said, “No Jews or Dogs Allowed.” I’m sure that the proprietors of those businesses insisted that their position was based on their sincere religious beliefs.
But I don’t believe that the people who objected to those signs, and got them banned, should be taken to task for not “acommodating” the anti-Semites who put them up.
We are a society. As the subprime mortgage crisis and its resulting cascade of horrors showed, we are linked together. If someone is going to participate in society, then society has the right to demand that the person refrain from actions that harm others and that interfere with the peace and economic order of society.
Anti-discrimination laws exist because invidious discrimination: (1) engenders rancor in society, including retaliatory discrimination, (2) gums up the economy for reasons that have nothing to do with economic efficiency, and (3) harms the people who are victims of it (e.g., gay people who have to travel a great distance to find a wedding cake baker or a photographer or a caterer for their wedding).
As John Stuart Mill said in his famous essay, “On Liberty”: “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
Am I totally unsympathetic to Elaine Huguenin? No. But, as the New Mexico Court of Appeals said, she voluntarily went into business. If you go into business, the state provides you with many benefits. It provides you with public roads. It provides you with police and fire protection. It provides you with the benefits of the corporate structure (if you do business as a corporation). It provides you with the exclusive right to your business name and to any trademarks or copyrights. In exchange for those benefits, the state has the right to ask you to refrain from actions that harm others.
The laws demand no affirmation of belief. Taking pictures is just that — taking pictures. Baking a cake is baking a cake. Those actions in no way indicate support or approval of what the customer is doing. Ms. Huguenin has the right to believe whatever she wants and worship as she chooses.
But, if she wants to harm others with those beliefs directed into the commercial sphere, she cannot do so. If she does not like that rule, then she is perfectly free to close down her business and do something else with her life.
I’d be saying the same thing to a photographer who believes that the Catholic Church is a criminal organization and wants nothing to do with Catholic weddings, to a Muslim caterer who does not want to serve a Jewish wedding, or a Jewish baker who strongly objects to preparing a wedding cake for a Muslim wedding.
Priya Lynn
June 5th, 2012
Right on Secret Advocate.
If Elaine doesn’t want to deal with the unclean there are plenty of jobs where she doesn’t have to deal with the public. A slave can’t quit their job and find another more to their liking.
David in Houston
June 5th, 2012
As a graphic designer, I have to agree with Timothy on this. I shouldn’t have to be obligated to accept every client that walks through my door. If a church (or politician) wanted me to design a flyer that promoted an anti-gay marriage amendment, I would quickly turn them down. Would I be wrong to do so, since I provide a service to the public?
Timothy Kincaid
June 5th, 2012
Mark
“I look forward to the day when a black photographer is forced to photograph a White Supremicist Rally.”
This is actually an argument used by Huguenin’s attorneys. The court responded that the Ku Klux Klan is not a protected class.
Not kidding.
Secret Advocate
June 5th, 2012
Maybe some kind of a compromise could be made under which the business is exempt from the anti-discrimination laws if it has fewer than a certain number of employees, say, 10.
Therefore, a large grocery store with many locations could not refuse to prepare a wedding cake for a same-sex wedding ceremony because of the religious beliefs of its president, but a small shop — which is closer to being an extension of the persona of its owner — could.
The opinions which I stated in my post above remain my views, but, as I also stated, I am not totally unsympathetic to the Elaine Huguenin’s of the country.
I also think that cases like this will not be common because the overwhelming majority of gay people will not want to employ a professional at their wedding ceremonies who does not want to be there.
The problem with which I’m struggling is what would happen if the business at issue is in a rural area and is the only business of its type within a great distance. What are the gay people in the area supposed to do?
Priya Lynn
June 5th, 2012
“I look forward to the day when a black photographer is forced to photograph a White Supremicist Rally.â€
And when it happens I’ll be right there demanding that the black photographer do the job they’ve freely chosen.
“Yes, one has to follow the law just because it is the law. One should never consider whether or not it is just or not.”
It is not just to discriminate against people because of harmless characteristics. It doesn’t get much more just than an anti-discrimination law.
chiMaxx
June 5th, 2012
Tim: Follow your own argument through. Let’s say your law excluding sole proprietors and very small business passed and that Elane was not a sole proprietor, but instead was a wedding photo specialist for an event photography firm with a dozen photographers–big enough to escape the small business exemption. Let’s say that this firm had accepted the same-sex civil unions job and assigned Elane to do it. Do you think Elane being forced to do this by her event photography employer (or else lose her job) is okay?
Yes, a sensitive employer might try to shift things around to suit her preferences, but he or she wouldn’t be required to, and sometimes scheduling and skill sets wouldn’t make that possible.
Why should inserting an employer instead of a sole proprietor shingle and an LLC business license between the customer and the photographer change the equation as to whether an individual should be “forced” to provide his or her services in a nondiscriminatory manner, according to the law?
I like you am uncomfortable with this case, and I don’t like the feeling that the plaintiffs were looking for a fight with Elane Photography. But New Mexico law says she can’t refuse to shoot a gay wedding because it is gay any more than she can refuse to shoot a Hispanic wedding because she only likes white people.
Lord_Byron
June 5th, 2012
David and Timothy, political beliefs and racism are not politically protected classes. A business owner can, if they want, fire you for being liberal if they don’t like that. As for religions, in the united states at least, they can legally discriminate against pretty much whoever they want. All they have to do is claim that it is part of their official religious views and they can deny service.
Of course when faced with losing their tax exempt status these churches magically change their views.
Honestly, if the photographer had been intelligent she would have just lied and stated that she was already booked for that day and no one would have known.
Priya Lynn
June 5th, 2012
Chimaxx, Elaine first made a point of telling these women she wouldn’t do the job because they were gay. It was Elaine who was looking for a confrontation, not them, they just gave Elaine the fight she asked for.
Duck
June 5th, 2012
I really don’t get the sympathy for this bigot. Had she indicated to the couple that she couldn’t take the job because she was booked, had personal commitments, a funeral to attend or any number of other transparently flimsy excuses this wouldn’t have been an issue. She blatantly violated the law. She did it because she is a bigot (likely of the ‘hate the sin, but some of my best friends are…’ variety, I am sure). She lost her case because she is a bigot and was in violation of the law. Why have sympathy?
F Young
June 5th, 2012
I’m okay with this judgement.
I don’t think photography is any more personal than hairdressing, medicine, nursing, taxi driving, etc.
And, once you allow 1 or 2 person businesses to refuse service because of personal bias (including any religion-based view that you are beneath them), what rationale would any business have for refusing to accommodate individual employees who want to refuse service for the same reason?
If we allowed that, I think to be consistent we should allow anyone to refuse service to people whose religion we disagree with, eg Baptists, Evangelicals.
But the religious right would explode if we sought to limit their religious privileges. They are protected by law and they accept no exceptions. In the end, their argument is that their rights are more important than ours.
While hate is easily generated when one is continually and viciously attacked, it does not take hate to uncompromisingly defend our right to equality. It takes courage, endurance, generosity and self-esteem. To appease them by surrendering any portion of our rights is to diminish ourselves.
At most, I would be okay with an exception that allowed homes with boarders and small bed-and-breakfasts to refuse service, because sharing a bathroom and kitchen table is more intimate.
Timothy Kincaid
June 5th, 2012
chiMaxx,
That is an interesting question – to what extent can an employee refuse to do specific tasks due to religious beliefs? I would have to do research on this to be certain, but if I recall correctly courts have been fairly supportive of employees and have required employers to make accommodation to, for example, observant Jews who can’t work on the Sabbath.
I wonder if she would have more right to self-determination as an employee of a larger corporation than she has as a sole practitioner?
Secret Advocate
June 5th, 2012
“Honestly, if the photographer had been intelligent she would have just lied and stated that she was already booked for that day and no one would have known.”
There are “testers” who find discrimination by sending a second tester after a first tester was rejected for a facially non-discriminatory reason.
For example, if a black person is told by a landlord that there are no apartments available, and a white person is then told 20 minutes later that there are several apartments available, then there is a problem.
Here, if Ms. Huguenin had just lied and said to Vanessa Willock that she was booked on the day of the wedding, what would have happened if Missy Collinsworth e-mailed a few hours later, falsely said that she was seeking to hire Ms. Huguenin for an opposite-sex wedding that day, and received a positive response from Ms. Huguenin?
Timothy Kincaid
June 5th, 2012
To provide context, here is the series of emails:
Vanessa Willock to Elane Photography
September 21, 2006:
Elaine Huguenin responded
Willock wrote again
Huguenin in conclusion
Timothy Kincaid
June 5th, 2012
Secret Advocate
Here, if Ms. Huguenin had just lied and said to Vanessa Willock that she was booked on the day of the wedding, what would have happened if Missy Collinsworth e-mailed a few hours later, falsely said that she was seeking to hire Ms. Huguenin for an opposite-sex wedding that day, and received a positive response from Ms. Huguenin?
Yes, that is precisely what happened.
In November 2006 Willock’s partner, Misty Collinsworth, contacted Huguenin and – without mentioning the sex of the partners – inquired about services. Huguenin responded enthusiastically and sought to follow up.
On December 20, 2006, Willock filed a charge of discrimination against Elane Photography.
Secret Advocate
June 5th, 2012
In the case of Estate of Thornton v. Caldor, 472 U.S. 703 (1985), the Supreme Court of the United States struck down as unconstitutional a Connecticut statute that gave employees of businesses an absolute right to take off from work on a day designated by the employee as his or her Sabbath day. The Court held that the law was an unconstitutional establishment of religion, in violation of the First Amendment.
Chief Justice Burger’s opinion for the Court said that law had “a primary effect that impermissibly advance[d] a particular religious practice.” Id. at 710. He pointed out that the law required the employer to accommodate the employee’s Sabbath day no matter how disruptive to the business’s operations that accommodation might be.
Here is a link to the opinion:
http://scholar.google.com/scholar_case?case=6063739020713384162&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Neil
June 5th, 2012
Anti-discrimination law does not compel a business to serve absolutely any customer under any circumstance. It specifies the bases on which discrimination is not allowed. I gather from the court’s ruling in the Huguenin case that sexual orientation is protected in New Mexico.
Refusing service to an organisation or individual because you disagree with some aspect of stated ideology is different to discriminating against someone because they belong to a category you dislike. Under anti-discrimination law Elane Photography can’t be allowed a ‘no gays’ policy any more than ‘no Jews’ or ‘no blacks’. A black person turning down business with a racist organisation like the KKK is not equivalent to a business refusing to serve black people.
iDavid
June 5th, 2012
If the photographer had won her appeal, that would give her the right to hang a sign in her business saying “we don’t photograph fags”. Next you would see signs in pet stores, get ‘n go’s barber shops and gas stations.
Seems we have to have a unified agreement: no discrimination, period, in order to eventually evolve out of barbarism.
It may take a while for people to swallow the pill, to conform, but that won’t happen if a slurry of loopholes are offered. That only stalls social progress.
David Waite
June 5th, 2012
This case has always been very simple: The photography studio doing business in the State of New Mexico decided to ignore and violate New Mexico’s laws that prohibit businesses from discriminating against would-be customers. Elaine Huguenin decided to make a personal statement of discrimination. New Mexico’s laws say she can’t do this as a business owner. End of story.
Secret Advocate had it exactly correct. Where I differ with him is in feeling sorry for Elaine and her husband. Had Mrs Huguenin not gone out of her way to hurt the feelings of her would-be customers there wouldn’t have been a case brought against her business. It is the easiest (and least disprovable) thing in the world for a one-photographer business to be too “busy” to take on a job.
Being “booked up that day” wasn’t good enough for Mrs Huguenin; she had to illegally bring her business into conflict with the law by favoring her religious beliefs over her business’s interests, even if she deeply hurt the potential customers thereby. She now must live with the consequences.
Moreover, if she sincerely believed that her religious stance has the sanction of heaven (as in Matthew 5:12, “Rejoice, and be exceedingly glad: for great is your reward in heaven: for so persecuted they the prophets who were before you.”) then the LAST thing she would have done is contest the charge against her business.
Secret Advocate
June 5th, 2012
Here is a link to the New Mexico Court of Appeals’s opinion:
http://www.nmcompcomm.us/nmcases/nmca/slips/CA30,203.pdf
David in Houston’s hypothetical is intriguing. Suppose that a church asked him, as a graphic designer, to design a flyer supporting an anti-gay marriage constitutional amendment. Would denial of the service constitute unlawful discrimination on the basis of religion? Yes, the flyer shows a political position but it also arguably presents a religious position.
Perhaps it could be argued that DESIGN of the flyer would constitute expressive activity because the designer’s job is to come up with an idea to make the flyer as good-looking and persuasive as possible. Then again, wedding cakes should also be baked so that they taste good.
As a practical matter, a graphic designer in this position would likely disclose his view to the church representative and the representative would decide to take the business somewhere else.
The legal issues aside, my personal view is that, if a DJ or caterer or photographer or baker told me of his or her personal objections to my same-sex wedding, I would take my business somewhere else. I want to use a professional who is focused and supportive.
But, as I stated earlier, there are organizations that use “testers” to smoke out discrimination and file lawsuits against those who practice it. I do have a question in my mind, however, whether such lawsuits would be helpful to the LGBT-rights movement at this point in time. I have little doubt that this case will be invoked in the four marriage equality referendum campaigns this year. Our side will have to point out that the marriage laws are unrelated to the anti-discrimination laws, and will have to state the reasons (such as the ones that I have stated) for having anti-discrimination laws.
I am not criticizing Vanessa Willock for taking the action that she took. As I said above, there are valid and fully defensible reasons for the anti-discrimination laws, and she may well have been offended by Ms. Huguenin’s behavior. It is only a question in mind as to whether this case is helpful to our side, in political terms.
Norm!
June 5th, 2012
I err in favor of non-discrimination in public accommodation versus protecting a businessowner’s supposed right to discriminate against protected classes of people. In light of our nation’s revelation that corporations are people, I don’t see any reason why size should matter in non-discrimination.
Huguenin was unable to convince the court the photography is a religious act:
…Judge James Wechsler wrote a specially concurring opinion that rejected Elane Photography’s claim that its religious freedom rights would be violated by having to photograph the ceremony.
The facts of the case, he wrote, don’t indicate whether the studio was aware there was any religious aspect to the ceremony.
If photography is a special religious act requiring freedom of religion, shouldn’t wedding planning, catering, photo processing, and music also be exempt from non-discrimination laws? If so, should wedding invitation printers, stores with wedding registries, honeymoon accommodations, and hotels also have the special right to discriminate? Why not landlords and employers as well? It’s a slippery slope.
Richard Rush
June 5th, 2012
As I was reading Timothy’s post I was leaning toward agreeing with him on the case. After reading the comments, I’m leaning the other way.
The small town scenario that SteveInMI’s comment addressed is a compelling one that I’ve thought about when the issue is pharmacists refusing to dispense certain medications based on their religious beliefs (sincerely held, of course). I live in a big city, so walking an extra block to another pharmacy would not be burdensome, but I imagine that many remote small towns have only one pharmacy, and that situation changes everything.
As the comments demonstrate, this whole issue is quite messy.
CPT_Doom
June 5th, 2012
I shouldn’t have to be obligated to accept every client that walks through my door. If a church (or politician) wanted me to design a flyer that promoted an anti-gay marriage amendment, I would quickly turn them down. Would I be wrong to do so, since I provide a service to the public?
That’s not what this ruling, or anti-discrimination laws in general, is about. Every business owner has the absolute right to refuse any individual or individual order, as long as that refusal is based on something the individual did. That’s why bar owners can still throw drunks out, no matter what group they happen to belong to. In this case the photographer simply refused an entire class of individuals her services.
Timothy Kincaid
June 6th, 2012
Very good discussion in this thread. Here are a few thought that I had in reading:
Would it matter if Huguenin’s objection was not to gay people? If Elane photography happily photographed the bar mitzva of a gay couple and a young gay man’s graduation pictures… but would not photograph gay weddings?
What if Huguenin also refused to photograph the weddings of heterosexuals of which one was divorced? Or if one were much older than their teenage spouse? Or if she only photographed weddings that “aren’t tacky”?
Or what if Huguenin would happily photograph gay people marrying, provided that it was to an opposite sex person. Or if she would refuse to photograph a same-sex ceremony that was between heterosexuals? (not that it occurs often. – if ever – but I could imagine a scenario in which a couple of older men married for tax or financial reasons)
I ask because – as best I can tell – the court and most of the comments presume that to deny photographing a gay marriage is, by definition, based on the fact that the people involved are gay. That may not always be the case. In fact I believe that Elane in an interview said that she had gay clients in the past.
It may actually be the nature of the wedding, not the person’s orientation that matters.
Would any of these possibilities have any impact on your opinion?
JohnAGJ
June 5th, 2012
A black person turning down business with a racist organisation like the KKK is not equivalent to a business refusing to serve black people.
So what if this hypothetical black photographer was hired to take photos at an event for one of the white supremacist Christian Identity churches? Should he/she be compelled by law to provide them such a service? I’m very uncomfortable with that.
Priya Lynn
June 5th, 2012
So what if this hypothetical black photographer was hired to take photos at an event for one of the white supremacist Christian Identity churches? Should he/she be compelled by law to provide them such a service? I’m very uncomfortable with that.
I’m comfortable with that. If you’re in business serving the public you’ve got an obligation to serve all of the public unless there is some reason that makes them unfit as a customer (never pays bills, abusive to the service provider, etc.)
Ben in Oakland
June 5th, 2012
Priya and Timothy (especially)-as the only career wedding photographer here, I think, my point of view unfortunately encompasses everyone’s. I”ll go into the details there after I get home later. But two quick comments
I don’t think it is a correct description of the situation to say Elaine discriminated on the basis of religious belief. She discriminated on the basis of sexual orientation and justified it as religious belief. I dont know for a fact, but knowing photographers as i do, I doubt if she turns other people who reject the totality of her Religous beliefs, not just the itty bitty antigay part.
The question then becomes why it is ok to discriminate Becuase of one set of religious beliefs but not on another– or indeed, ANY OTHER. The judge rightly pointed out that it wasn’t her job to involve herself in the wedding, only to photograph it.
Having said all of that, and not at all knowing the two women, I nevertheless have to wonder if perhaps, in a vague general sort of a way, if these women had come to me I might not have wanted to tell them that I wouldn’t do their wedding.
There are all kinds of weddings I haven’t wanted to do Becuase I could smell trouble on these potential clients like likethe perfume they use to “sweeten” DDT. No amount of money is worth the hell that those people have put me through when they evaded my screen or I ignored my own instincts. Fortunately, out of a hundred jobs a year
I might have only one client who was trouble
You don’t want to do the wedding? you just refer them on. You’re stupid if you tell them why. Elaine was stupid
But Elaine was stupid in a different way. if I don’t miss my guess, she failed to see that trouble was coming at her, and she believedo in her self assigned and wholly imaginary superiority as both heterosexual and Christian. In short, t was more important for her to be right (in every sense ofthe word) than it was to be a good businessperson.
as I said, I don’t know the women involved. this may all be a bad guess.. But I do know my business, and had a very successful career becuaseof that. I trust my instincts.
Ryan
June 5th, 2012
I’m against allowing people to discriminate against other groups in business. I think the hardcore libertarian who opposes things like The Civil Rights Act and declares that those who discriminate will be punished by the free market are laughably naive and wrong-headed.
However, this is not that situation. If Elaine were refusing to photograph gay people period, that would be discrimination and illegal. But she’s refusing to participate in a ceremony she feels is morally wrong. The analogy of a black photographer being forced to take photos a white supremacist rally or (perhaps more realistically) a gay photographer being forced to take photos at a “Yes on Prop 8” rally is apt. Everyone here would be supporting a gay photographer in that situation, and everyone here should be supporting this woman, even if we find her “morality” dubious.
TwirlyGirly
June 5th, 2012
I don’t like the “against my religious beliefs” aspect of this case, because the photographer was picking and choosing WHICH Christian beliefs to adhere to in her business, and only chose to adhere to those which would have the least negative impact on her profits.
Divorce, except under two very specific circumstances, is prohibited in the bible. Unlike the “clobber passages,” which I sure most here would agree have been mistranslated, the bible is very clear on the issue of divorce: divorce is only allowed if your spouse commits adultery or if you’re a Christian married to a non-believer, and the non-believing spouse initiates the divorce.
Has Elaine asked every potential wedding client if they’ve been previously divorced, and if so, ask what led to the divorce? Of course she hasn’t. I wonder how many second, or even third weddings Elaine has photographed, despite those marriages being against biblical teachings…
That’s why the “religious beliefs” argument falls flat with me. If you’re going to claim your Christian beliefs prevent you from serving some people, then you’d better be refusing service to *every* customer who is violating scripture – not just those customers who won’t affect your businesses bottom line if you turn them away.
This case, IMO, wasn’t about Elaine’s religious beliefs. That’s just what she chose to use to try and justify what she did. But, because she only applied biblical standards to SOME potential customers, but not others, I think it’s clear Elaine just wanted to have the freedom to discriminate against people with whom *she* is uncomfortable.
Ryan
June 6th, 2012
@Twirly Girly,
You’re right, it’s highly unlikely that she would care if a married couple had been previously divorced. Like with most anti-gay religious people, the “sin” of homosexuality trumps all other “sins” by a country-mile.
But it’s still something that violates her morality, and it’s not a necessary service and like I said, I wouldn’t ever want a gay photographer to be forced to photograph an anti-gay event, so I’m on her side on this one.
Andrew
June 6th, 2012
It’s managed to be a pretty thoughtful thread, mostly free of invective, which is nice. I think that’s because this one is indeed a puzzle – we’re asked to take legal matters, which operate from a theoretical abstraction, and figure out how they fit into real life, and all the unintended outcomes that arise from that.
My initial sympathies were with Tim K. – the idea that I have to do a job I don’t want to is noxious. It’s also true, however, that one must be aware of the laws before one gets into business.
For example, if I decide to roll out a hot dog cart without any permitting or food safety inspection, and the city confiscates my cart, is that the state crushing the entrepreneur, or enforcing rules that must be applied across the board if we’re going to be able to operate out of a common set operating procedures that will, on average, do more good than harm.
In short, do we let the outlier establish mainstream law? Do we offer conservatives a method to start carving out exception after exception until the law is entirely hollowed out, and gays, Jews, and blacks — or Christians for that matter — are back to having to find the “right” lunch counter?
In the end, it was the comments from the person from a small town that really brought it home — this is the same technique the right is using to gradually ban abortion — don’t actually ban it, just consistently deny services to customers, especially in small towns. Pretty soon those undesirables will pick up and move somewhere else. It’s also the same rationale the Catholic Church is using to carve out exceptions to birth control coverage in insurance, or to providing services to gays through their adoption agencies. I’ll keep saying it. If you want to operate in the public sphere, be ready to abide by the rules that govern fairness, or don’t start a university, run a hospital, place children in adoptive homes… or don’t take pictures.
The law is the law in small towns and big cities. And it should allow for equal treatment. When one goes into business, brace for the responsibility to offer your services to whomever is willing to pay… or find something else to do.
Because we’ve been down this road, and we know what it looks like.
P.S. I don’t wake up in the morning looking for people to hate, but I’m damned sure not going to let someone disrespect me. I may not start something, but if I find out that someone is glibly flouting the law because of personal animus, be certain I will end it by taking the SOB to court.
It’s not about animus or hatred, it’s as simple as self-respect.
Neil
June 6th, 2012
There are a number of hypothetical scenarios being thrown about here to try to make discrimination law look infeasible. As far as I understand how anti-discrimination legislation is draughted, it lays out the categories covered. It doesn’t attempt to outlaw discrimination in the dictionary sense of the word.
Such laws will not attempt to compel a business to accept any customer. I seriously doubt a black photographer would be forced to work for a white supremacist group, even if they identified as a church. It would be a sad day if white supremacy could be successfully defended in court as a religious belief.
As for Elane photography, the fact that they have had gay clients in other circumstances rightly doesn’t offer a defence against the charge of unlawful (as opposed to ordinary) discrimination in the withholding of service for the same-sex commitment ceremony. Elane claims their policy doesn’t discriminate because of sexuality but because they can only accept marriage (even in the form of a non-legally recognised commitment ceremony) as between a man and a woman. To quote the judgement:
This argument, however, attempts
to justify impermissible discrimination by distinguishing Willock’s participating in a same-sex commitment ceremony from her status as a member of a protected class and is without merit. In this context the United States Supreme Court has “declined to distinguish between status and conduct.â€
In other words, Elane Photography does not get to pick and choose when they can unlawfully discriminate.
Ben Mathis
June 6th, 2012
Priya and Ben in Oakland have made some great points.
Just to add, the second that any exemption is put in, you can just count the seconds before it is abused to create a de facto discrimination against gay people.
The harm caused against GLBT refused services is infinitely more measurable than any theoretical harm a business owner will suffer from by having to do the same job they do for everyone else, again for a gay couple.
Hunter
June 6th, 2012
I did run across a key passage from the decision, which points out that the law itself is viewpoint neutral: it is not singling out the photographer’s religious beliefs, but applies across the board to every entity offering goods or services to the public. (It also appears that New Mexico law does include sexual orientation as a protected category.) My basic stance is pretty much in line with that, and the basis of anti-discrimination laws in general: if you want to offer goods or services to the general public, then you damned well offer them to the general public. The idea that one’s personal religious beliefs trump civil law across the board is pretty horrendous to contemplate: we might just as well tear up the First Amendment and start over.
Ordinarily I would just say to this photographer “Do your job and keep your opinions to yourself,” but the couple in this instance seem to have made that impossible. Sounds like someone was looking for a fight.
“. . . it seems as though laws drafted to protect gays and lesbians from discrimination actually may infringe on the rights of others to live their lives in accordance with their values.”
I can’t agree with this statement at all. Nothing in anti-discrimination laws stops anyone from living in accordance with their values. Such laws do, however, stop people from enforcing their personal values on everyone else. I live in a large and diverse city, and people do things that offend me all the time. It’s called life in America.
Jay Jonson
June 6th, 2012
Thank God, courts are actually enforcing anti-discrimination laws. I am glad that Ms. Willock complained about the discriminatory treatment she received from Elane Photography and that the courts have upheld her complaint.
I wonder if you would agree that small businesses should be exempt from other civil rights laws? Should one be able to turn away customers on the basis of gender, race, religion, sexual orientation, veteran or marital status if you employ fewer than say five employees? I rather doubt that you would be in favor of that.
The fact that you are so willing to allow people to discriminate on the basis of sexual orientation shows a great deal about your internal homophobia. For some reason, you think gay people are not entitled to full civil rights because it might upset some religious fanatics.
Timothy Kincaid
June 6th, 2012
I wonder if you would agree that small businesses should be exempt from other civil rights laws? Should one be able to turn away customers on the basis of gender, race, religion, sexual orientation, veteran or marital status if you employ fewer than say five employees? I rather doubt that you would be in favor of that.
I would, actually. Although the ‘small town’ argument is a good one and might lead me to reconsider.
I think where one falls on the Elane Photography issue depends to some extent on which of these most resonate with one’s way of thinking:
People should not be allowed to…
Or
People should not be forced to…
And, of course, on whether one can see oneself more easily in the position of Ms. Willock or Ms. Huguenin.
Norm!
June 6th, 2012
Timothy Kincaid: “…What if Huguenin also refused to photograph the weddings of heterosexuals of which one was divorced?…”
Yes, I would still consider that discrimination because she is discriminating against customers because of their religious beliefs.
“…Or if one were much older than their teenage spouse?…”
Yes, it could be considered age discrimination — although it depends on how the non-discrimination is written.
“…Or if she only photographed weddings that “aren’t tackyâ€?…”
No, being tacky is not a protected right. She would certainly have the right to refuse to do business with something she found objectionable (outside of protected classes).
“…It may actually be the nature of the wedding, not the person’s orientation that matters.
Would any of these possibilities have any impact on your opinion?”
I understand that Huguenin tried to she was only discriminating against gay marriage and not gays, but isn’t that the standard bigot excuse? ‘I’m not a racist, I just don’t believe in interracial marriage.’; ‘I’m not anti-gay, I just don’t believe homosexuality is moral.’; ‘I believe in women’s equality, but I prefer a man for the job.’; etc.
I understand your argument that sole proprietors and small businesses should have the special right to discriminate. However, my impression is that most small business owners strive for professionalism.
Priya Lynn
June 6th, 2012
Ryan said “The analogy of a black photographer being forced to take photos a white supremacist rally or (perhaps more realistically) a gay photographer being forced to take photos at a “Yes on Prop 8″ rally is apt. Everyone here would be supporting a gay photographer in that situation,”.
You don’t speak for me and you’re wrong, I would NOT be supporting a gay photographer in that situation. In consideration of such hypotheticals one must ask “Does the presence or absence of an anti-discrimination law help more people?”. Its very unlikely that a white supremicist group would hire a black person to photograph their rally. It is also quite unlikely that an anti-gay anti-marriage group would hire a gay photographer to photograph their rally. It is not unlikely, in fact its probably very common, for the large numbers of anti-gay people out there to refuse service to somone whose gay. Looking at the balance of the situation an anti-discrimination law protecting gays is going to help far more people than it hurts and that makes it the best choice.
Mike Rasor
June 6th, 2012
Timothy,
I wanted to respond to a few things you have said in the comments:
“This is actually an argument used by Huguenin’s attorneys. The court responded that the Ku Klux Klan is not a protected class.
Not kidding.”
The fact the KKK is not a protected class is completely relevant. Courts are supposed to deal with a law as written and not just impose their own policy preferences. Deciding a case solely on the basis of a hypothetical that has no basis in current law, is a hallmark of judicial activism. A court has to decide the case in front of it. If a law by it’s very language or prior case law renders a hypothetical highly improbable or impossible, then the hypothetical scenario is irrelevant.
“I would have to do research on this to be certain, but if I recall correctly courts have been fairly supportive of employees and have required employers to make accommodation to, for example, observant Jews who can’t work on the Sabbath.”
I wrote a law review article on Title VII and religious discrimination issues. Contrary to your statement, courts have actually been fairly hostile to religious accomodation. In essence the Supreme Court originally held Title VII does not require accomodation of religious practices but only forbids discrimination on the basis of beliefs. In response, Congress amended the law to require that employers provide reasonable accomodation for religious practices. The Supreme Court subsequently held that reasonable accomodation is that which imposes no more than a de minimus burden on the employer or other employees. In practical application this results in most suits of this nature being dismissed because an employer can usually point to some burden that exempts them from the legal requirement.
Finally, asked whether it would matter if she had another basis for objection to the wedding other than the sexual orientation of the participants. It depends on what the other reason is in my book.
I tend to agree with the Supreme Court’s reasoning in CLS v. Martinez that discrimination against a person based on involvment in a same sex relationship is the same thing as discrimination on the basis of sexual orientation because the two issues are inherently bound together. Therefore I find it ludicrous to argue that it’s not sexual orientation discrimination if the defendant was willing to provide services for a gay person’s wedding so long as they were marrying someone of the opposite sex.
Similarly, if Elaine Huguenin is willing to take photographs of wedding just not same sex weddings, that is still discrimination based on sexual orientation because but for the sexual orientation of the participants, she would have taken on the job.
On the other hand there are plenty of scenarios in which she could have denied the job and it would be perfectly legal discrimination. If for instance she only took photos at particular venues or photos in which she could have certain lighting and visual considerations.
The problem in this case lies directly in her email she acknowledged she photographed weddings but not same sex weddings. While she is discriminating based on an intersection of marriage and sexual orientation, it’s still discrimination based on sexual orientation. I think it’s important to remember that anti-discrimiation laws represent policy positions that certain forms of discrimination are pervasive and corosive enough that the law should affirmatively undermine them. In short not all discrimination is equally bad.
Priya Lynn
June 6th, 2012
If Elaine was willing to photograph a lesbian marrying a man but not two lesbians marrying this would mean she discriminates inconsistently, not that she doesn’t discriminate on the basis of sexual orientation.
Désirée
June 6th, 2012
I’m mostly with Timothy on this. The idea of forcing a person to provide a personal service that they don’t want to provide just strikes as the kind of Big Brother thing we *don’t* want. I think, first, we have to differentiate between a product and a service. A grocery store can’t refuse service to gays (or Jews or fat people or whatever) just because. But personal services are different. If a personal masseuse doesn’t like offering her professional services to men (maybe she was raped and now has a fear of touching men) are you really going to tell her she has to find a new profession? A lawyer can reject clients for all sorts of reasons, even anti-gay ones. A person offering a service, who has clients rather than customers, should (and by some readings of the First Amendment right to free association, the right) to chose their clients as they wish.
The other thing that bothers me with a case like this, just as it’s unlikely that the KKK would hire a black photographer (and it’s not discrimination if they choose not to hire a black photograph when they go looking for one) why would a lesbian couple want a bigot to photograph their wedding anyway?
And even if Elaine had complied with the law, what is to prevent her from not giving 100% effort? How do you prove that she purposely took bad photos that day because she didn’t want to be there? So now we are beyond forcing the person to provide a (non-essential) service to threatening them with criminal penalties if they not only provide that service against their will, but that they do it well – an entirely subjective consideration. Allowing discrimination protects the client, by preventing them from obtaining the services of a person who doesn’t want to provide them.
The small town argument applies with essential services but wedding photography simply isn’t one of those services. And we aren’t talking about a pharmacist refusing to sell an otherwise legal product. We are talking about a person offering their personal expertise.
I find the court’s reasoning that the government provides business’s with services and thus that person’s business is obligated to follow certain rules entire unconvincing. Roads and police and fire are provided to all tax payers equally with no requirement that said tax payer not be a bigot. Trademarks are a service that must be paid for – the government doesn’t “protect” them out of the goodness of their heart. They do so for a fee.
With the exception of the “small town, no one else within 100 miles can do this” kind of situation, I am thoroughly unconvinced that anyone has the right to someone elses services just because that person happens to advertise those services as being for sale.
Jewell
June 6th, 2012
There is no gray area here. At first glance, we see something fuzzy. At second & third glance, the details come more clearly into focus. Should a business owner be able to decline to provide services to a potential customer on the grounds that said business owner objects to who the customer is?
Let’s think about it, people. Timothy Kincaid, who disagrees with how the court ruled in this case, closes with these words: “I wish we could accommodate each other better. I wish we didn’t hate each other so much.”
You can stop wishing & start doing something about it. As for hate, the only person displaying such a negative emotion was the business owner.
Where is the accomodation? Elaine made it clear that IF these women were straight, fine, services would probably be rendered, provided they could agree on terms & price.
There was no accomodation, just a “no” -based solely on the fact that the potential customer was a pair of lesbians. Had they been straight (or as stated, “traditional”) there would be no problem.
As for the hate, these lesbians either did not or could not choose a gay photographer, otherwise I’m sure they would have -if one were available. Even though many gays have been subjected to discrimination -subtle, overt & in many areas of their lives- they didn’t simply say, “Well, straight people hate us, so we’re going to hate them…..” and it never ends. Hate is propagated when we allow it.
This is the very type of discrimination that gay people are subjected to each & everyday. This is EXACTLY what we fight against & lobby to change. Other people are allowed to seek redress of their grievances by petitioning our govt, or thru our courts.
I don’t agree with forcing anyone to do anything. But let’s consider that if we don’t take stands against ALL forms of discrimination, gay people may as well hang it up, call it a day, and conform to what society wants of us. Which is, I assume, to be straight. Sorry, I can’t change my sexual preference anymore than I can ask a straight person to be gay.
So, we can wish all we want for things to change, but that won’t make them change. As for hate, talk to straight people about it because from where I sit, gay people are just like straight people -except straight people just can’t get past who we sleep with. It doesn’t make ANY form of discrimination acceptable.
If that were the case, we’d have gay people refusing to serve straight people in restaurants. Or take care of them in hospitals. Or handle their legal matters. Or build their homes. Or any number of other places you’re bound to meet a gay person.
Why should straight people be allowed to wield their swords of discrimination with impunity??? Black people asked the same question of whites at some point, I’m sure. The answer was & still is: They should not be allowed to do so.
Priya Lynn
June 6th, 2012
Jewell said “Timothy Kincaid, who disagrees with how the court ruled in this case, closes with these words: “I wish we could accommodate each other better. I wish we didn’t hate each other so much.—.
The hate started with anti-gays like Elaine. The only reason any gay person hates anti-gays is because they treat gay people unjustly. Gay hatred of anti-gays is justified, their hatred of gays is not. There is no moral requirement for gays to accomodate anti-gays oppression of them. There’d be no hate if it weren’t for the anti-gays choosing to treat innocent people unjustly.
Timothy Kincaid
June 6th, 2012
Okay, before it becomes a meme, I don’t “disagree with how the court ruled”.
As I stated, I think the law is unfair and should be amended.
Teresa
June 6th, 2012
I’m loving this Comment Thread, which has been so informative and well spoken.
I’m with Timothy’s view on this; although, Mike Rasor has me rethinking. I think we gay folks have to be more open to other’s choices; and, what constitutes real harm to us. Elaine, at least from the emails, didn’t appear to flaunt her religion beliefs and stated what she would and would not do dispassionately. She wasn’t the one that provoked the fight, wasn’t a “tester”.
Why shouldn’t Vanessa and Misty thanked Elaine for her honesty and sought out another photographer? In my opinion, pushing this lawsuit only creates animus, and is never helpful in the long run. Perhaps, Elaine was an ally … to a point. Now, she’ll more than likely be an overt enemy, and gather more around her with like views.
We can only pushback so far without injuring our cause. I’m for allowing each of us the greatest amount of freedom, even if in so doing, I might be ‘harmed’ somewhat. Social contract means all of us need to give and take.
However, thanks Timothy for a great Post and for all who have commented. Really a thoughtful interaction.
Jewell
June 6th, 2012
Don’t misunderstand me. Personally, I think people should be entitled to their prejudices -personally. However, and this is a big, lofty however, we are viewing this matter from down here when the judge or judges are charged with viewing the potentials from a completely different place, high above us. That’s what we look to them for -guidance on such lofty ideals.
It is not ideal for anyone to discriminate against anyone else based on many factors. Ask yourselves this: WHAT IF the tables were turned? WHAT IF the photographer were gay, the potential customer was straight & the photographer refused to even consider doing business with customer based solely on the fact that they were straight? Does it make it any more right or wrong?
As gay people, we are asked everyday to overlook what could become our own well-developed prejudices (and wouldn’t we be justified in holding onto them, based on how we’re treated by some straight people?) because we know, deep inside, in our heart of hearts, that discrimination is WRONG.
Just think about it. I don’t like forcing anyone to do anything, but consider affirmative action. We are essentially forcing businesses to consider black people, going so far as to give them hiring & promotion preference over non-blacks, because of the blatant discrimination whites have meted out against black people for centuries. Is this wrong of us? How did we get to this point?
It’s an easy answer when you consider the history of discrimination. IF we don’t force white people to adhere to affirmative action standards, how do you think whites would behave?
What if the person who called Elaine was black & Elaine refused them service based on the color of their skin? Should their be exemptions for small businesses because they’re small? Because they’re privately held & not publicly traded? Where do we stop with exemptions? Enough exemptions & you pretty much render any advancements moot. They won’t happen. We will go back to being the same bigoted people we’ve been & wouldn’t that be a travesty?
We are looking for advancement. We are looking toward the day when we gays are treated like everyone else -gee, like straight people are treated! Why are we fighting for the right to marry??? There are SO many people out there who are against it, but it doesn’t make it right! We will eventually evolve.
Ben In Oakland
June 6th, 2012
All good comments.
Teresa: “Why shouldn’t Vanessa and Misty thanked Elaine for her honesty and sought out another photographer? In my opinion, pushing this lawsuit only creates animus, and is never helpful in the long run”. Jewell: “why would a lesbian couple want a bigot to photograph their wedding anyway?”
As i wrote it seemed to me that the two women were “trouble”. This clarifies it.
Jewell: “This is the very type of discrimination that gay people are subjected to each & everyday. This is EXACTLY what we fight against & lobby to change. Other people are allowed to seek redress of their grievances by petitioning our govt, or thru our courts.
I don’t agree with forcing anyone to do anything. But let’s consider that if we don’t take stands against ALL forms of discrimination, gay people may as well hang it up, call it a day, and conform to what society wants of us. ”
Also my point. Regardless of the reason, religion or orientation, it’s still discrimination.
Having said that, i wish these women had not filed their suit, though I’m glad they won. It was unnecessary, and though they may personally feel vindicated, the rest of us have to deal with the “gay people want to destroy relgious freedom” meme, however false that claim is.
Ben In Oakland
June 6th, 2012
This is what I wrote a few years ago, a bit more fleshed out than what I posed before.
I have had a lot of questions on this. I’m very much in the middle. I’m a wedding photographer myself. And from my experience, the couple that sued I suspect was trouble from the start. And astute photographer learns to recognize them. Elaine didn’t. Likewise, an astute event photographer knows that the only face a client should ever see is friendly, pleasant, polite, and caring, no matter what you might feel about it. Telling people that you don’t approve of them or their lifestyle (I’m using the word consciously here) is not a way to make them happy. so on top of everything else, Elaine was rude.
Rude isn’t a crime or cause for civil action.
As a wedding photographer, I can tell you there are plenty of people whose weddings I do not want to shoot. I would be very foolish to tell them why. You just say you’re booked, and you refer them on, if you can.. Not that I would do so for illegal reasons, but because I flat out don’t like them, or think they will be trouble, or difficult to deal with. I would even shoot a Mormon wedding– though at this point, I would probably donate the money to marriage equality in honor of their wedding and let them know that I did.
Nevertheless, there is something else to consider here. The wedding photographer in New Mexico violated a law that said that discrimination on the basis of sexual orientation is illegal. The same law that protects blacks, whites, and even Christians.
As a Jew, I reject the Christian story, and as a thinking human being, I reject Biblical morality. This bothers the religious beliefs of no one but the most rabid fundamentalist, nor would any but the most clueless dare say so in public for fear of rightly being called a religious bigot. But let me say that I’m gay and reject just this tiniest part of conservative Christian belief, and suddenly, religious beliefs are offended, the people who hold them are “persecuted”. What is the difference?
Does Elaine do Jewish weddings or Hindu weddings? Theoretically, if she does not, she could cite her religious beliefs as the basis for her opposition. Why this different?
It amazes me that religions disagree about the nature of God, and their history is written in blood. But gay people–well, they finally have it right. So, to say that she is entitled to reject these women as clients because they are gay, but not entitled to because they are Jews, represents a logical inconsistency.
The word bigotry comes to mind, a bigotry that any gay person knows exists. Just because you claim it is your religious belief, doesn’t mean that’s true. And just because it is about gay people doesn’t make it right.
Blake
June 6th, 2012
Love the discussion. Any points I’d’ve made have been covered, except I don’t really find the small town argument convincing in the internet age.
The internet has made the world much smaller and services much easier to find.
Priya Lynn
June 6th, 2012
Blake, just because a person in a small town can find a service provider from a big city on the internet doesn’t mean they’re going to be able to get service in their small town from that person.
Priya Lynn
June 6th, 2012
I know I struggled to get by without a sewage system for a number of years because no one would come out to my small town to fix it for me – having the internet didn’t help in anyway, having the internet didn’t make the world any smaller.
Timothy Kincaid
June 6th, 2012
Ben,
I very much appreciate the reality that you bring to the situation. However, I’m curious where you got that Elaine was rude or told anyone that she didn’t approve of their lifestyle?
The totality of their communication is here.
scott902
June 6th, 2012
Timothy’s sentiments are akin to the reactionary attitudes expressed almost 50 years ago during the filibuster conducted by (mainly) racist southern senators, such as Robert Byrd and Strom Thurmond, over proposed civil rights legislation. That filibuster was ultimately overcome so that the full senate could vote to pass what would become the landmark Civil Rights Act of 1964. It stands with the greatest civil rights achievements in this nation’s history. Among the important provisions of that law: prohibiting private businesses from denying services based on race or gender.
The legal landscape in the United States was so impacted by this law that even the likes Antonin Scalia and Robert Bork agree this was a necessary — and fully constitutional — step for the forward progress in civil rights.
So here we are, two generations later, with Timothy sympathizing with a bigot who withheld services for no other reason than her hatred of LGBT persons. Elaine is entitled to her opinion, yes. But no, she does not have carte blanche to disciminate – nor should she.
It’s true, the Civil Rights Act did not include GLBT persons. That’s because back in the mid-1960’s, such persons were deemed sick, misfit perverts, who at best needed to be “cured”, and at worst needed imprisonment or death.
The current battle to recognize the civil rights of LGBT persons should hold to standards no less than those courageously fought for and won 50 years ago for racial equality under the law. Unfortunately, even a gay person such as Timothy fail to understand this important reality.
Secret Advocate
June 6th, 2012
I cannot agree with the attempt to draw a distinction betweent “products” and “services,” prohibiting discrimination in the provision of the former while allowing discrimination in the provision of the latter.
Individious discrimination remains a social harm, regardless of whether it is “products” or “services” that are provided.
Moreover, it can be difficult to separate the two concepts. A baker bakes a wedding cake. Is that a “product,” or a “service?
A lawyer prepares a deed. Is that a “product,” or a “service”?
Timothy Kincaid
June 6th, 2012
A product is sold by item. A service is sold by time.
Services: Accountants, lawyers, wedding photographers, auto mechanics.
Products: accounting software, legalzoom deeds, cameras, fuel tanks.
Blake
June 6th, 2012
Sure Pryia, but the example of the hypothetical town with one photographer remains unconvincing. Regardless of the availability of septic techs on the internet one has to be spectacularly piss-poor at using the internet to not find a nearby photographer; or at least one who is willing to travel. Now if you want to make arguments about available professionalism, affordability, cultural differences in the western US (towns much further apart), etc I’m all ears; but the idea that this law is somehow suddenly justifiable due to small town economics requires one to ignore the revolution in communication that has taken place over the past three decades. There are other reasons this law may be justifiable.
Priya Lynn
June 6th, 2012
Blake, if I can’t get people to travel to maintaine my house, what makes you think one can always get someone to travel to take photographs?
Your faith in the internet changing things is hugely overblown. Just because someone is on the internet doesn’t mean they’re going to be willing to come see you.
Secret Advocate
June 6th, 2012
I sense that there is concern about where these anti-discrimination laws will lead — dare I say it, a “slippery slope.”
The slippery slope argument, essentially, is that we should not adopt Rule X because it could end up leading to Terrible Outcome Y. It’s like those cute DirecTV commercials today, in which not having DirecTV leads eventually to “selling your hair to a wig shop,” ending up “in a roadside ditch,” or attending your own funeral disguised as man named Phil.
The fallacies in the slippery slope argument are that: (1) it is not necessarily true that each step in the chain will occur; and (2) there has to be some realistic basis on which to conclude that the Horrible Outcome will actually occur.
In our American system of separation of powers, the legislatures enact the laws, and the courts interpret the laws. The courts must also decide whether the laws are constitutional. Legislatures are given broad discretion in their abilities to enact laws, and rightfully so. That is part of a system of representative democracy.
In the case of New Mexico, the legislature prohibited discrimination on the basis of “sexual orientation” in “public accommodations.” The court was required to interpret that law.
Discrimination against a KKK rally is not illegal. Not all whites are in the KKK, and, moreover, it cannot be said that disapproval of the KKK equals to animus against whites as a race. Therefore, a photographer’s refusal to photograph the rally is not discrimination against whites.
Could the legislature prohibit discrimination on the basis of political viewpoint? Legislatures can do a lot of things that they don’t do. And legislatures have the right to be wrong. “Wrong” does not equal “unconstitutional.”
It’s like the hypothetical posed in the debate over the constitutionality of the health care law about whether Congress can use its Commerce Clause power to require everyone to eat broccoli. I personally think that that situation is distinguishable from the health care law. The financing of health care is different from the market for broccoli. (No one goes through life without using health care, and we have to pay for health care. Also, Congress also did not order people to buy health insurance from one particular insurer.)
Be that as it may, there is a more basic point at issue: What are the chances that Congress would actually pass a law requiring everyone to eat broccoli?
My thought: None.
There are “slippery slopes” in life. That’s why we have spiked shoes, adhesive strips, and non-skid mats. The existence of a “slippery slope” does not cause us to do nothing (i.e, stay indoors).
The question has also been raised as to the interpretation of the New Mexico law — specifically, was Elaine Huguenin’s refusal to photograph the wedding really discrimination “based on” sexual orientation? Ms. Huguenin has said that she had gay customers.
I agree with the court and the comments her that her conduct was discrimination on the basis of sexual orientation. If she takes the characteristic into account and it is determinative of her decision, it is discrimination. Disapproval of homosexuality in inherently linked to disapproval of a same-sex wedding. Indeed, that is the basis for opposition to marriage equality, when you get down to brass tacks.
The court quoted a line from Justice Scalia: “A tax on wearing yarmulkas is a tax on Jews.” Justice Scalia stated that line in his opinion for the Court in a case that held that persons who blockaded abortion clinic were not acting because of prejudice against women. The demonstrators (who included women) were hostile to abortion, not women.
But, as Justice Scalia conceded, there are situations in which the conduct (“wearing yarmulkas”) is intrinsically linked with the status (“Jews”), so that the conduct has to termed as discrimination against the status.
That was the case here, in my opinion.
The fact that she had gay customers does not change the result. A restauranteur cannot say, “I’ll hire blacks, but only to work in the kitchen.”
If the wedding were of two heterosexual males who were trying to get benefits — an “I Now Pronounce You Chuck and Larry” situation — and if Ms. Huguenin refused to photograph because she thought only that Chuck and Larry were making a mockery of the institution of marriage, that may not be discrimination on the basis of sexual orientation. But it could be discrimination on the basis of sex, because Ms. Huguenin would have photographed the wedding if Chuck or Larry were a woman.
Factual issues and statutory interpretation issues exist in many legal cases.
All of these hypotheticals are thought-provoking, but, again, the question has to be raised, what are the chances that they will actually arise in the real world?
Yes, there can be difficult decisions. But, as my mother says, “That’s why we have courts.” The existence of close calls should not prevent a legislature from enacting otherwise beneficial legislation in the first place. If need be, the legislature could include clarifying language in the statute to try to prevent some type of unfavorable “outlier” case.
Secret Advocate
June 6th, 2012
“A product is sold by item. A service is sold by time.
“Services: Accountants, lawyers, wedding photographers, auto mechanics.
Products: accounting software, legalzoom deeds, cameras, fuel tanks.”
@Timothy:
My accountant charges my business a flat “retainer” each month, regardless of how much time he works on our accounting matters.
Suppose that a lawyer simply charges a flat fee of $500 for will. Is he or she providing a product or a service?
Secret Advocate
June 6th, 2012
That should have been: “Suppose that a lawyer simply charges a flat fee of $500 for A will” (with the indefinite article).
Jack
June 6th, 2012
“It seems to me to be unfair to demand that an individual (and in the case of small businesses like Elane Photography, it is an individual) be forced to provide services at the time, place, and convenience of anyone for any reason.”
Yet that is not what happened — so why even bring it up?
To force someone to provide services at the time, place and convenience of anyone for any reason is a violation of the 13th Amendments prohibition of involuntary servitude.
It really isn’t necessary to go any further — since this issue is irrelevant to the case. But, interestingly enough, the photographer was asked, specifically, if she were willing “to travel” and she said yes. I’ve no idea what willingness to travel means in New Mexico.
But had she objected on any of these bases — removing the specious “force” argument — any and all of them would have provided a legitimate reason to refuse the job. Just not sexual orientation.
Andrew
June 6th, 2012
As a wedding photographer, I can tell you there are plenty of people whose weddings I do not want to shoot. I would be very foolish to tell them why. You just say you’re booked, and you refer them on, if you can..
This is a principle well understood by every small business owner including the photographer here. She just thought she had a position of power here. Both parties were happy to engage in conflict, but it was started by the vendor who felt privileged to look down her nose at the lesbian couple — and tell them she was doing it, and thus that they should accept it as the way the world works.
The lesbian couple did what was absolutely appropriate. They responded in kind, and pointed out that the world does not work that way. In short they did what martial artists call “occupying your own space”. Under the conditions of the provocation, to do otherwise would be an act of shame and self-abnegation. The photographer figured the girls would just have to suck it up and take it — after all, she assumed she’s in the position of primacy. What a rude shock for her. And how delicious.
I can see Tim’s point, and let’s point out — he has not disagreed with the law, but called for refinement. I just don’t agree with him because of:
* the specific circumstances of this case,
* the disproportionation (providing exemptions to addresss minor issues soluble through other means will gut the law for all), and
* the practical alternatives available (just say you’re booked and don’t spoil for a fight).
Blake’s point about the internet fails in reality. Most vendors will not travel outside a very small range, and many in rural America still cannot get decent internet service (think dial-up).
If you want to play in the public arena, you are subject to public rules. This is the price of admission we all pay to live in a civil society. We all give up a little self-determination if it means that everyone gets a fair shake.
homer
June 6th, 2012
I’m not going to be treated as a second class citizen because of someone’s religious beliefs. I have no sympathy for Christian bigots. NONE. I have to live in a state where Christians and Mormons promoted an anti-same-sex marriage amendment, implying that people like me were child molesters and other garbage. Why is it fine and dandy for religious people to promote hatred against gay people?
Andrew
June 6th, 2012
SA – anyone who quotes the wisdom of his mother is alright by me :)
Timothy Kincaid
June 6th, 2012
SA,
You may not realize it, but your accountant is actually charging you for time, not a product. S/he has calculated an average time at his/her billing rate and flattened it for your convenience. They view your fees as covering a certain number of hours during a month and (unless they are a sole practitioner) they track the time spent on you. If you begin to require too much time on a monthly basis, your retainer will get raised.
Sometimes an accountant (or lawyer) will have standard rates that they charge for a service. For example, a tax return may cost most clients roughly the same, so they will flatten the rate. This would be similar to charging $500 for the preparation of a will.
But professionals (those who work in a profession) charge for their time – even if it may seem otherwise. A gardener may do your yard for X dollars per month, but he’s not selling you your yard, he’s selling you his time.
That’s really all professionals have to offer. They don’t sell a product (“Get yer tax returns here, discount tax returns, step right up, how many can I get ya?”), have an inventory, or buy in bulk. And they do work that requires special knowledge or a special skill.
If you could buy a will anywhere from anyone, then it would be a product. If it didn’t require anyone’s time, skill or expertise, it would be a product. And, indeed, you can buy a ‘fill in the blanks’ will and it is, indeed, a product. But if you need an attorney to apply his knowledge of the law, then what he is providing is a service.
This really isn’t a matter of opinion. It isn’t guess work or arbitrary. It’s just the difference between the two terms.
And if you still don’t see the distinction, call the IRS or the State Board of Equalization. Sales tax is charge on products (other than necessities) but not on services. Services require a Form 1099 if above the threshold.
FYI, I’m an accountant.
And, sorry, but I don’t sell tax returns.
Secret Advocate
June 6th, 2012
But the question still stands: Why should there be a distinction between the providers of “products” versus “services” in determining the applicability of the anti-discrimination laws?
I understand that professionals perform tasks that “require special knowledge or a special skill,” and those tasks require the application of thought, training, and experience. An ordinary shmo off the street can’t prepare a financial statement using GAAP.
Should that, however, give rise to an exemption to the anti-discrimination laws? Could an accountant declare, for example, that he does not accept clients who are of Vietnamese ancestry?
The line drawing problems also still exist. Is a restaurant providing products, or services, or both?
Timothy Kincaid
June 6th, 2012
SA
Restaurants sell products.
If you have any further specific items about which you are uncertain as to them being a service or product, you can check them out with the Board of Equalization (sales tax). These are actually not rhetorical and virtually any situation you can think of has been answered.
As for italics and bold and indent, etc., the site recognizes HTML code. Italics are created with < i > before and < / i > after the phrase. (leave out the blank spaces)
Secret Advocate
June 6th, 2012
P.S. — I’m new here. I see that people are putting italics in their posts. How does one do that?
Hue-Man
June 6th, 2012
The related issue that is literally closer to home is the gay-hating B&B owner. Here’s one from Grand Forks, B.C. (population 4,036) which is pretty close to the “rural” definition and is definitely out of the way. http://news.nationalpost.com/2011/10/18/b-c-gay-couple-barred-from-bb-gets-rights-tribunal-hearing/
And the Bulls, the wonderful British hotel owners. http://www.bbc.co.uk/news/uk-england-cornwall-17336310
Once you allow discrimination for a single room B&B, there’s no basis to stop discrimination in a hotel (“not under my roof”) or in a hotel chain (“not under the roof of any of my hotels”). If you don’t like the rules, work to change them or get out of the business.
Ben In Oakland
June 6th, 2012
Timothy, I’ve been gone all day.
She was rude when she said she would not do the commitment ceremony of a same sex couple. I wrote “Likewise, an astute event photographer knows that the only face a client should EVER see is friendly, pleasant, polite, and caring, no matter what you might feel about it. Telling people that you don’t approve of them or their lifestyle (I’m using the word consciously here) is not a way to make them happy.”
That was rude to me. I would never do that, which is why even the people I disliked as my clients never knew about it. I would frequently get recommendations from them.
All Elaine had to do was say “I’m sorry. I’m booked. But you might call so and so”. so and so wouldn’t even have to be among her regular referrals.
Secret Advocate
June 6th, 2012
@Hue-Man:
There is a similar case in Vermont that is pending right now:
http://www.aclu.org/lgbt-rights/baker-and-linsley-v-wildflower-inn
Neil
June 6th, 2012
Courts have explicitly rejected the idea that the definition of ‘public accommodation’ be narrowly determined so providers of services can distinguish themselves from providers of goods and thereby exempt themselves from human rights legislation. I’ll quote from the Elane vs Willock decision (from paragraph 15):
The United States Supreme Court reasoned that “[t]his expansive definition reflects a recognition of the changing nature of the American economy.†Id. at 626. The United States
Supreme Court also emphasized that the “fundamental object [of civil rights] was to vindicate the deprivation of personal dignity that surely accompanies [the] denial[] of equal
access to public establishments.â€
I fail to find sympathy for Elane Photography. It seems the argument in their favour suggests we should accommodate their prejudice because otherwise they might feel uncomfortable and anyway, those lesbians were just spoiling for a fight. I don’t buy that.
As the Supreme Court and many comments above have pointed out, wholesale exceptions will gut the whole intent of anti-discrimination law. Making the laws restrictive to providers of goods makes for a complicated half-way measure that appears to condone and legitimate the discrimination on the basis of services. I doubt that in practice the goods/services distinction would even be workable.
Regan DuCasse
June 6th, 2012
Seriously people, do you think a white supremacist group would bother to hire a black photographer in the first place?
Therefore effectively eliminating a black photographer being ‘forced’ to do anything for their event.
The ones I can think of that might, would be photo journalists on an assignment, and even then it’s likely not to happen for his own safety.
Get real.
Priya Lynn had a point that EH was SPECIFIC about why she wouldn’t provide services. And citing a religious reason doesn’t cut it, because most people understand that it’s highly unlikely she’d refuse or even ask any rude questions to disqualify heterosexuals couples that could meet her religious tests.
I’m so done with people who have a public business pulling this stunt, and ONLY doing so with the gay public.
Refusing service because a client or customer was abusive, or did something also specifically disagreeable is very different from doing so because of what a person is.
If you don’t have a sign out saying who you will and won’t serve, then how is a gay customer to be held accountable for it?
EH WAS spoiling for some kind of fight, because sometimes being a religious bigot makes people nasty and stupid that way.
I don’t know how this could have had a friendly outcome.
It’s business owners trying to have it both ways.
The don’t post signs (because they know what would really happen), they are INCONSISTENT with their religious discrimination, so eventually the courts had to clear it up for all concerned.
Sometimes I don’t really care if certain bigots take a single case like this and run with it as if they are being persecuted.
This is a very diverse society with a set of rules that most people should REASONABLY be assured protects everyone.
EH decided to break certain rules selectively, and expected to get away with it.
For once I’d like to see people like her post signs, that consistently lists ALL the people they can’t serve because of their beliefs. That would be a long, long list…and then they can exercise that it’s their right to free speech.
And then let’s see what happens!
chiMaxx
June 6th, 2012
Rather than going far afield let’s look at a similarly creative service also associated with weddings. I dated a hairdresser for a while, and he often had Saturday morning appointments to finish the bride’s hair for her wedding. Any dyeing and cutting had been done earlier in the week, but putting the hair up, maybe putting in some baby’s breath, and making it look like the bride’s best fantasy of what her wedding day hairdo would look like took creativity, skill and effort.
So what if a hairdresser said no, he or she would not do your hair for your same-sex civil union, that he only provided this for traditional–and legal–weddings.
Would it matter if this was a bridal hair shop that advertised that it did hair for weddings and only for weddings? (“Well, I’m sorry, but a civil union ceremony is just not a wedding–and we only do hair for weddings–not prom or anniversaries or any other occasion”)
Would it matter if instead it was a regular hair shop where that bride had gone for more than a decade? (“I know you and I’ve done your hair for years, and I’ll do it next week, and I think your partner is a sweet girl, but it goes against my religious principles to support you in this mockery of holy matrimony, and I just can’t do it.”)
Would it matter if it was closer to the Elane situation? The bride was going somewhere new, somewhere that she’s seen ads for, because she wanted something special.
strech
June 7th, 2012
While I don’t agree with the product/services distinction, I do disagree with the ruling handed down on the compelled speech reason. Photography is creative work, and Elaine is being compelled to create work celebrating something she disagrees with. The court distinguished this here:
I think this is wrong.
Work-for-hire is still creative work, in which you become a speaker; you aren’t merely a “conduit”. Elaine is still distributing the photographs – at the least to the family and anyone else that would be listed in the contract. Could Willock demand she do the job but not demand Elaine send anyone the photos?
And while the KKK is not a protected class, the Christian Identity Church, the Nazi Party (in some areas), and so on are. The “conduit” logic also applies beyond wedding photography – graphic design, freelance writing, and so on.
I think they’d love to have a black guy running around doing work to glorify them, particularly if they were spoiling for a legal case. (And it wouldn’t even have to be a black guy, anyway; a hell of a lot of people would object to doing that work). It is a direct implication of the ruling and you can’t handwave it away because you don’t like it.
Hunter
June 7th, 2012
Timothy Kincaid: “As I stated, I think the law is unfair and should be amended.”
In what way is it unfair? It applies the same way to everyone, as the court found, and that’s as fair as the law can get. If certain people are exempt from certain laws, then the laws are not fair.
Désirée
June 7th, 2012
Hunter: a law that says “everyone must worship at a Christian church” also applies equally to everyone, but is obviously not fair. Fair is the opposite of equal. you can be one or the other but rarely both. This law may be equal, but is not fair.
Désirée
June 7th, 2012
I agree with Stretch as well that the idea that wedding photography isn’t creating a message is bogus. It reduces the photographer to no more than unskilled labor. If that were the case, then why hire a wedding photograph at all and not just get your friend to shot some snapshots? Photography is art, whether it is being sold as a service or not. So what this ruling does in effect, is force an artist to create art that goes against her beliefs. Yay us :-/
Jarred
June 7th, 2012
In my opinion, pushing this lawsuit only creates animus, and is never helpful in the long run.
The photographer made it clear that she would not take the job because it was a same-sex wedding. That in itself implies animus. Suggesting that the couple created the animus that was clearly pre-existing simply isn’t truthful.
Brawny71
June 7th, 2012
So, your position is, if you’re a SMALL business, it’s okay to say “We don’t serve your kind.”?
If she didn’t want to photograph an interracial marriage, this would be more all over the news.
She can solve future problems by simply proclaiming “Fundamentalist Christian Photographer.” on her business cards and ads, and she’ll never get asked again.
P.S. Twenty years from now, there will be no doubt that this woman was in the wrong–just like we used to be on the fence about a person not approving of interracial marriage being a racist. I think we’re all pretty sure he/she is now!
Krsitie
June 8th, 2012
What I find interesting is the initial email the couple sent to the photographer. In it they say, “If you are OPEN to helping us celebrate…”. Clearly, from that wording, it makes it seem as if they understand and even anticipate that the photographer may not be open to participating in their wedding and that is fine. But, when she did express her objection, then they seemed to feel that she should take them on as clients regardless of whether she was open to participating or not. Personally, I think that she’s a bigot, and I don’t think refusing them simply because they were gay was right, but I still feel like she should have the right to do it. Of course I am one of those “naive, wrong-headed” Libertarians, so I generally don’t care for the state trying to use it’s might to legislate the morality of adults in general. If I had been in the couples position, I would have taken my business elsewhere to someone that wanted and deserved my hard earned cash. Then, I would have had no problem telling everyone I knew that the photographer who refused, did so because she has a bias against gay marriage.I’m just not totally comfortable with the government telling people who they must associate with.
Wesley
July 7th, 2012
This seems similar to a hypothetical situation where a Muslim photographer declines a request to photograph a Jewish ceremony, like a Bar Mitzvah, or a Christian baptism. I’m not sure if it would be appropriate* for them to sue the Muslim, despite the fact that they are in a protected class. What is your opinion? Perhaps there comes a time when anti-discrimination laws threaten freedom.
*I am not sure of the law(s). By appropriate, I mean “what should be.”
Scott Smith
March 19th, 2013
The applicable law in New Mexico is clear about public accommodation by businesses who advertise their services to the public. Regardless of whether you feel the law is fair or not, it’s still the law in our state.
Even further, as the owner of a licensed business in Albuquerque she is required to agree to abide by local, state & federal laws. This is a case of someone (Elane) wanting to avoid the consequences of her actions.
Priya Lynn
March 19th, 2013
Hear hear Scott.
Jasper Krone
July 14th, 2013
“the minutia of hurt feelings and obnoxious entitlement”
Hurt feelings and obnoxious entitlement are the mainstays of the anti-gay, Xian Right, and anti-abortion crowds. I thought you guys practically *insisted* that the courts regulate these things. Now you want them to stop? Your cause would be nowhere if you didn’t have courts constantly finding in favor of your medieval prejudices.
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