April 7, 2014

"The Supreme Court refused on Monday to be drawn into the spreading controversy over the right of business firms to refuse to serve gay and lesbian customers..."

"... turning aside the appeal of a New Mexico photography studio and its owners. The Court made no comment as it denied review of Elane Photography v. Willock, involving a refusal to photograph a lesbian couple’s wedding-style ceremony."

We talked about the Elane Photography case here last Thursday in a post titled "Linda Greenhouse concedes that there is 'an instinctive appeal' to the 'notion' that 'photography is an expressive medium.'"

Am I sorry the Court didn't snap up that case? The photographer lost out to the nondiscrimination principle. Perhaps this is an issue that needs more percolation in the lower courts or that the Court needs to put off until after its (inevitable) decision declaring a constitutional right to marry a person of one's own sex.

ADDED: WaPo's David Savage declares the cert. denial "a victory for gay rights."
The appeal argued that a state anti-bias law, when applied broadly, would “require individuals who create expression for a living -- like marketers, advertisers, publicists and website designers -- to speak in conflict with their consciences.”
UCLA law professor Eugene Volokh and the Cato Institute’s Ilya Shapiro had filed a separate brief urging the court to hear the case. They said the 1st Amendment should protect writers, singers, actors or artists whose work involves expression. But they said this protection was limited in scope and should not extend to “denials of service by caterers, hotels, limousine service operators and the like.”
AND: Volokh and Shapiro's brief [PDF] stresses the right to refuse to speak (including the right to refuse to take a photograph). Excerpt:
Democracy and liberty rely on citizens’ ability to preserve their integrity as speakers, thinkers, and creators—their sense that their expression, and the expression that they “foster” and for which they act as “courier[s],” is consistent with what they actually believe. 

This is why, in the dark days of Soviet repression, Alexander Solzhenitsyn admonished his fellow Russians to “live not by lies”: to refuse to endorse speech that they believe to be false. Alexander Solzhenitsyn, “Live Not by Lies”, Wash. Post, Feb. 18, 1974, at A26. Each person, he argued, must resolve to never “write, sign or print in any way a single phrase which in his opinion distorts the truth,” to never “take into hand nor raise into the air a poster or slogan which he does not completely accept,” to never “depict, foster or broadcast a single idea which he can see is false or a distortion of the truth, whether it be in painting, sculpture, photography, technical science or music.”

100 comments:

jimf said...

there are easier ways to avoid being photographers for gay weddings than just refusing on principle. Just charge them, say 30% more. Pricing on weddings in subjective enough that it would be hard to sustain a discrimination charge...gay couples will likely pick other photographers.

Rumpletweezer said...

When will under-performance become an issue? Why would you want someone who doesn't want to do your wedding do your wedding?

PB Reader said...

I find it hard to believe there are an insufficient number of gay or otherly determined sexual preference photographers that would be willing to take the job.

What rights do bakeries have to not decorate cakes they find objectionable? Penis and vagina cakes must be a universal human right.

rhhardin said...

Epstein says that freedom of association should trump everything except when one of two things applies :

1. Discrimination is enforced by private violence, ie. if you serve blacks, your store will burn down.

2. Monopoly service is all that's available.

Neither applies here.

SJ said...

I said it before.

There is a concerted push by a group of extremists at work.

That push will attempt to make the older, Christian-informed concepts of sexual behavior as socially unpopular as smoking or asbestos.

We've see the legal system used to extract large fines from cigarette companies, combined with progressive advancement of legal limitations on smoking in any business that serves the public. Then in any business or workplace.

The push against smoking became a concerted effort to use every legal tool available to decrease the practice.

I fear that the partisans of rights for homosexuals will use every legal tool available, plus social pressure, to punish those who hold the old opinion.

Even those who want to preach about sin, while also publicly supporting a tolerant legal system.

rhhardin said...

A victory for gay rights, as in destroying somebody with another view.

That way gays don't have to associate with them.

Andy Freeman said...

Architecture is expression so it's unclear why exempting poets is different from exempting folks who built a cute bed and breakfast.

Yes, many bed and breakfasts are campy etc but they're better art than most poetry.

rhhardin said...

Suppose the photographers think that marriage is the word for man-woman relations, the way they succeed and can fail; not a word for same sex relations.

They might have a stake in the ceremony for that, and they're not going to profane it.

Yet they might be all for civil unions.

They're fined and run out of business for being correct, by an uncomprehending mob.

damikesc said...

Just do the work poorly and refuse to accept a payment.

Jane the Actuary said...

jimf, it's not an option to say that a gay marriage-opposing photographer can simply overcharge to chase away prospective clients.

In the Huygens case, the "prospective" client was acting as a tester (asking about a gay ceremony and having someone else ask about a traditional wedding at the same time) in order to collect damages.

dbp said...

"...the Court needs to put off until after its (inevitable) decision declaring a constitutional right to marry a person of one's own sex."

I don't think it is anything close to inevitable unless Obama gets to pick another justice and it is not one of the four sure votes that are already on the court.

Big Mike said...

I agree with Rumpletweezer. Cake decoration, floral arrangements, and photography are creative activities. Will same-sex couples be able to sue if they're displeased by the results and don't feel that the photographers, cake decorators, or florists put in their best efforts? Who gets to decide what's good enough? That's a can of worms the Court should have nailed shut by taking this case and ruling against the plaintiffs.

Revenant said...

I have to say, I'm really surprised the court didn't take the case. Disappointing.

Michael K said...

"Why would you want someone who doesn't want to do your wedding do your wedding?"

To bully the people who observe traditional values. I hope the photos resemble the photos of McCain by Jill Greenberg.

jimf said...

If one is going to overcharge...one has to be a little more subtle about it than just tacking on X% ...since the nature of photography of a wedding is somewhat subjective, you can quote based on your impressions of what is appropriate...or it may be even more easy to be a pain in the ass about it to potential clients, so that they do not choose you and go elsewhere...

Drago said...

Big Mike: "Will same-sex couples be able to sue if they're displeased by the results and don't feel that the photographers, cake decorators, or florists put in their best efforts?"

Yes. That's "Phase II"

Big Mike: "Who gets to decide what's good enough?"

Gays.

I hope this helps.

Drago said...

damikesc said...
Just do the work poorly and refuse to accept a payment

You will be sued out of existence anyway.

Which is the point.

Johanna Lapp said...

As I said last week, it's not about an empathetic artist capturing the light in my beloved's eyes.

It's all about making a lesbiphobic Christian bigot knuckle under and eat shit.

The victory of our spite is more important than the celebration of our love. That's the memory I want captured in our wedding photos.

jr565 said...

" Perhaps the is an issue that needs more percolation in the lower courts or that the Court needs to put off until after its (inevitable) decision declaring a constitutional right to marry a person of one's own sex"


Bull. The person is being punished for not taking a picture prior to the cortts decision declaring a constitutional right to marry a person of their own sex. One has a lot to do with the other.

jr565 said...

IN many states its in the constitution of the state that marriage DOESN'T mean gay marriage. So, should a baker be required to bake a cake for a marriage that the constitution says isn't even legal?

chillblaine said...

Isn't price discrimination legal? Some places offer ladies night where they offer discounts for female patrons. Would it be a fair test of the legality of this practice to have a multi-tiered pricing system.

jr565 said...

" "Linda Greenhouse concedes that there is 'an instinctive appeal' to the 'notion' that 'photography is an expressive medium.'"
I thought that was a given. Why does that need to be conceded? Do you think that if it were anything other than gay marriage at issue that Linda Greenhouse would say their is an instictive appeal to the notion that photography is an expressive medium.

You can see, quite clearly how support of gay marriage is turning into denying people the right to disagree. You MUST toe the line on gay marriage simply because gays say so.
You want to talk about facism, and intolerance?

Fritz said...

If you put the doll figures on top doing something disgusting, would they still have to pay?

jr565 said...

if supporting gay means means supporting facism, and eroding of the freedom of speech then sorry, there's no reason to support gay marriage. Or gay civil unions.

damikesc said...

You will be sued out of existence anyway.

Which is the point.


Doubtful in this case.

If you're upfront that you have zero desire to do this and refuse a payment, an argument for damages would be sketchy.

If an artist doesn't want to do something and you force them, expecting inspiration is far too much.

Just take the most boring pictures possible and take the bare minimum number that you have to. If you have to make a cake, poor cake and poor icing isn't hard to execute.

LilyBart said...

Why would you want someone who doesn't want to do your wedding do your wedding?

Its not about the pictures - its about making it beyond the pale to consider SSM any different from traditional arrangements.

LilyBart said...

Why would you want someone who doesn't want to do your wedding do your wedding?

Its not about the pictures - its about making it beyond the pale to consider SSM any different from traditional arrangements.

jr565 said...

If gay marriage is illegal, you have the right to say it should be legal. But that' just your opinion. If you argue that no one has the right to offer a counter opinion to you, on a marriage that hasn't even been made legal yet then you are not arguing in good faith and you are forcing your view on other people at the point of a proverbial gun.

Peter said...

Racial discrimination in public accommodations was outlawed in the USA at a time when such discrimination was so widespread as to make it difficult for black people to find accommodations- and if they did, the accommodations were of lower quality.

This is surely not the case today- not for black people, and not for gays. I don't, therefore, see why it is necessary to outlaw discrimination- those who do so will lose some business, and when word gets out perhaps they'll lose a lot of business. But it's surely not as though blacks and gays can't find plenty of merchants who are pleased to take their business.

Indeed, I don't see how the federal government can still do so, as the original justification was the Commerce Clause, yet absent pervasive discirmination, how can there be a restriction in the ability of anyone to conduct interstate commerce?

Of course, the states can still do so. But what is the justification? Would it be so awful if white people went to a black-owned restaurant and were told that they don't serve whites? It might be a shocker, but it's not as if they'll be unable to find places that will serve them.

Crimso said...

Refusing gay and lesbian customers is most certainly NOT the same thing as refusing to perform your services for a same-sex wedding ceremony.

R. Chatt said...

Gay marriage is going to be a non issue, already is for younger people, and the court recognizes that. Like wearing white after Labor Day, no one even thinks about that "rule" anymore.

Another way around the law is to call yourself a Christian photographer, cake decorator. That way you can express your deep love for Christ by denying service to people who have sinned.

Ebbers Palomino I said...

I wonder, if I were to walk into a gay-owned business with an bible verse related to homosexuality (in the negative sense), would they be required to serve me?

Alexander said...

Well, it's two weeks until you can run out and demand that a Jewish or gay or black or any other minority group out there with a bakery bake you a "Happy Birthday, Hitler!" cake.

But of course, conservatives won't go full Alinski, certainly won't do it if they're afraid it will 'prove' them racist... and even if one of them does, the courts will of course recognize that this is totally different

Gahrie said...

that the Court needs to put off until after its (inevitable) decision declaring a constitutional right to marry a person of one's own sex.

Written like a true Leftist.

Unknown said...

The may force one to take photographs, but they cannot keep them from to take "good" photos. Really mess them up, then offer them their money back.

Archie said...

Westboro Baptist Church is looking for a homosexual photography firm to take a video of its upcoming "Death to Fags" rally as well as stills of the dinner program that will follow. It will be in Topeka, Kansas early in the summer. Can anyone come up with a likely firm? Please post it here. Church leaders follow Althouse.

darrenoia said...

@jr565 Gay marriage wasn't even legally recognized in New Mexico when the court nevertheless ruled against the photographer.

I want a little more tea leaf reading by the experts here. Why would the court deny cert in this case? I'd imagine the reason is something unexciting and not related to the raging national argument about these issues. But I'd still like to see some speculation as to why. Are they waiting for more information from more similar cases in the lower courts?

tim maguire said...

It's hard to see the validity of Volokh's position. To the extent that they are artists, they should be able to choose their subjects, but to the extent that they are businesses, they should be treated like businesses.

I have to wonder (as have many others) why they would want a photographer who didn't want to photograph them. First sue to make them take pictures and then, when they don't like the result, sue again? Wouldn't it be easier to just hire another photographer.

In this day and age, why do people hire wedding photographers anyway? So many of the guests will be taking pictures that it's unlikely the ones the bride and groom pay for will be the best.

n.n said...

The reason the court cannot address this issue, is because there is nothing unique or special about homosexual behavior. It is simply one of many dysfunctional behaviors, which is tolerated but not normalized. If they offer official sanction to homosexual behavior, then they must offer equal sanction to other dysfunctional behaviors. And with the normalization of murder/abortion, there are virtually no limits to "legal" behaviors. I wonder if this is what motivates the modern aristocrats and lesser nobles to demand disarming the common man.

Anyway, the issue has been raised, and the selective interests of homosexual activists and their patrons only serves to reveal a progressive dissonance. They have created a moral hazard, and they are either unwilling or incapable of reconciling it.

Ann Althouse said...

"To the extent that they are artists, they should be able to choose their subjects, but to the extent that they are businesses, they should be treated like businesses."

Only amateur artists are artists?!

Ann Althouse said...

Also, freedom of speech doesn't require you to be an artist. It's about expression.

Could the government censor my blog? I make money writing it! And I'd like to argue that it's an art project, but I can't count on the government to agree about that.

jr565 said...

darrenoia wrote:
@jr565 Gay marriage wasn't even legally recognized in New Mexico when the court nevertheless ruled against the photographer.

But then that is even worse. How could you hold a photographer to task for not wanting to photograph a wedding, when the state itself wont' say that the marriage is legal.
The argument is, you can't deny gay people's business, because to do so would be discriminatory, and you can't discriminate. Only, the state discrminates because it doesn't allow the marriage.You can't even discriminate against illegal practices?
So, if a polygamist said they wanted a cake for polygamy you could'nt refuse to bake that cake, even though the state could refuse to issue the marriage certificate?
What kind of gobbledy gook reasoning is that?
The exact kind being hoisted on us by gay marriage zealots.

Ann Althouse said...

"I have to wonder (as have many others) why they would want a photographer who didn't want to photograph them."

Who are "they"? The particular would-be client in this case is described like this in the petition for cert.:

"Elane Photography declined to create photographs and a picture-book telling the story of Respondent Vanessa Willock’s same-sex commitment ceremony because those images would convey messages about marriage that conflict with its owners’ religious beliefs. Respondent Willock promptly found a different photographer, and then filed a complaint alleging that Elane Photography violated the state public-accommodations statute. The New Mexico Human Rights Commission concluded that Elane Photography violated the statute, and the New Mexico Supreme Court agreed."

Why did Willock sue? Presumably, because she cares about the nondiscrimination principle and wants to silence the negativity heard in the exclusion from a business even if nobody who is actually excluded would want to use.

Aside from the compelled expression issue ostensibly at stake, I see an effort to silence the message "we don't serve gay people here."

tim maguire said...

Only amateur artists are artists?!

How did you get that out of my comment? If you go around taking pictures of whatever you want and later you sell those pictures, then nobody has the right to force you to take their picture.

But that's not what we're talking about here. We're talking about a business that sells a service, that service being wedding pictures. Just because their service can fairly be described as artistic (a word with, let's face it, very little formal meaning) should not give them special rights over other businesses to pick and choose who they will sell their services to.

tim maguire said...

Prof., regarding your 1:22 post, that raises the next question of, what is the injury here on which standing is based? If they don't want this photographer's services, then how are they injured by not getting it?

As you may notice, I'm heading off in a circular direction here. You're welcome to join me so we can keep going in circles forever.

Gahrie said...

Refusing gay and lesbian customers is most certainly NOT the same thing as refusing to perform your services for a same-sex wedding ceremony.

Yet.

Ann Althouse said...

"How did you get that out of my comment? If you go around taking pictures of whatever you want and later you sell those pictures, then nobody has the right to force you to take their picture."

You don't think professional portrait artists get to select their clients? You're making a distinction over which came first, the client or the work? That didn't cross my mind as a distinction. How would that be a First Amendment concept? If a painter takes commissions from prospective clients and is accommodating to many requests (like "I want a painting of a sunset as seen from Picnic Point") but someone else says "I want Hitler smiling in Heaven," he doesn't have a right to say yes to one and no to the other?

From the cert. petition:

"Ms. Huguenin’s artistic expression pervades her work. During the picture-taking process, Ms. Huguenin uses her artistic eye to frame and capture images that convey the story she wants to tell. Tr.101-06. She also choreographs many of the scenes depicted in her photographs. Tr.103.

"After each event, Ms. Huguenin spends three to four weeks poring over the captured images. Tr.79- 80. She begins by selecting the pictures that best suit her artistic tastes and expressive goals, and she discards the rest. Tr.107. Of the pictures she keeps, Ms. Huguenin crops and edits each one to accentuate her desired message. Tr.79-80. Then she creates a picture-book for each customer by arranging the images to tell her story about the event. Tr.79.

"Ms. Huguenin, and not her customer, is the speaker communicating through her photographs and books. Her actions in choreographing, capturing, selecting, editing, producing, and arranging the final photographs and storybooks all affect, and ultimately determine, the messages conveyed through her images and books. See Tr.79-80, 101- 07.2"

Jane the Actuary said...

Ann, at 1:22, you asked, rhetorically, why Willock sued the photographer and suggested it was out of principle. I don't have the details at hand, but I think the cash available to anyone who complained of discrimination was a motivator, too, don't you think?

Jane the Actuary said...

Oh, and, for what it's worth, this is my commentary on why this is not analogous to Jim Crow:

http://janetheactuary.blogspot.com/2014/03/why-religious-freedom-restoration-is.html

Plus, this whole thing started when the Left moved from asking for support for "same sex marriage" to "marriage equality" -- once this is framed as an absolute right, then opponents become bigots, not just people you disagree with.

Ann Althouse said...

"Refusing gay and lesbian customers is most certainly NOT the same thing as refusing to perform your services for a same-sex wedding ceremony."

What do you mean by "customers"? Do artists have customers? Do performers of ceremonies have customers? Would "clients" be a word that would interfere with the clarity of thought you seem to be enjoying?

Craig Landon said...

Here's an intersection of interests to ponder

Ann Althouse said...

"Ann, at 1:22, you asked, rhetorically, why Willock sued the photographer and suggested it was out of principle. I don't have the details at hand, but I think the cash available to anyone who complained of discrimination was a motivator, too, don't you think?"

What remedy did Willock seek? I don't know. I doubt there was much money to be gained here for Willock.

Ann Althouse said...

From the opinion of the New Mexico Supreme Court:

"Willock filed a discrimination complaint against Elane Photography with the New Mexico Human Rights Commission for discriminating against her based on her sexual orientation in violation of the NMHRA. The Commission concluded that Elane Photography had discriminated against Willock in violation of Section 28-1-7(F), which prohibits discrimination by public accommodations on the basis of sexual orientation, among other protected classifications. It awarded Willock attorneys’ fees, which Willock later waived. No other monetary or injunctive relief was granted."

I think that's a pretty clear answer to the question whether Willock was in it for the money!

jr565 said...

""Elane Photography declined to create photographs and a picture-book telling the story of Respondent Vanessa Willock’s same-sex commitment ceremony because those images would convey messages about marriage that conflict with its owners’ religious beliefs."
For those arguing FOR the courts decision and feel that the baker should have been sued, would your decision be different if gay marriages wasn't legal in the state in which the person refused to photograph or bake a cake.

jr565 said...

For a marriage that all 50 states say is illegal, could a baker refuse to bake a cake?

Owen said...

"damikesc said...
You will be sued out of existence anyway.

Which is the point.

Doubtful in this case.

If you're upfront that you have zero desire to do this and refuse a payment, an argument for damages would be sketchy.

If an artist doesn't want to do something and you force them, expecting inspiration is far too much.

Just take the most boring pictures possible and take the bare minimum number that you have to. If you have to make a cake, poor cake and poor icing isn't hard to execute.

4/7/14, 11:59 AM"

Tempting position, there. But passive-aggressive "compliance" imposes real costs on the artists. One cost is the knowledge of having deliberately failed to do good work. That hurts, morally and aesthetically. Depending on the artist's sensitivity, the pain could be considerable.

Another cost is reputational, of coming to be known for doing only mediocre or unsaleable work. Since the clients in such a case are those who deliberately provoked the situation for political reasons, somehow I get the feeling that they would not be shy about spreading the word, widely and loudly, that the artist ruined their big day.

This battle is one-sided. The artist is unlikely to win, only to fight to (maybe) a draw.

DKWalser said...

It's important to keep the facts of the case in mind when offering ideas of how the photographer could have avoided the problem. In this case, one member of the couple came into the studio and asked if the photographer would be available for her same-sex ceremony, the photographer declined. Then, the other member of the couple called and asked if the photographer was available (without disclosing the event was a same-sex ceremony), and the photographer accepted the engagement. The point is that the couple was LOOKING for the controversy. They did not allow the photographer to merely demur by claiming she was too busy. They forced an explanation of why she would not do their ceremony.

The law should not compel people to lie just as is should not force them to speak.

Jane the Actuary said...

hmmm. . . I was quite certain that I had read that she was collecting money in the same way as the ADA-complaintants are able to collect. Faulty memory, perhaps, or misreading of something that I saw?

eric said...

This is one of those things I hope would get changed or remedied if we ever have a constitutional convention.

Freedom of association. Or not to associate, as it were.

First we were told that we could not associate with those we may have wanted to associate with (Jim Crow laws) and when those went away, they went the exact opposite route and told us we could no longer choose who we wanted to associate with, we have to associate with everyone.

Give us back our freedom.

Loren said...

If only Elaine Photography had gone to the wedding, taken pictures and then realized that the equipment had suffered "technical difficulties" and no images were captured. They could have refunded the money taken and walked away, having only lost a few hours. Providing that their contract specified the relief for non-performance was refund on fees only.

jimf said...

Another good way for a photographer to get out of doing it is to where a t shirt to the wedding which says "gay marriage is an abomination" or something like that...they will tell the photographer to leave...

Yu-Ain Gonnano said...

Why would you want someone who doesn't want to do your wedding do your wedding?

Wouldn't it be easier to just hire another photographer.

That assumes what they want are good wedding pictures. What I think they want is to rub Christian's noses in their participation in what they consider to be a celebration of a sinful act. People can be trolls in real life just like they can be online.

Refusing gay and lesbian customers is most certainly NOT the same thing as refusing to perform your services for a same-sex wedding ceremony.

The photographers, bakers, florists, etc at issue didn't refuse to take gay people as customers. Many explicitly said they would gladly provide services for other types of celebrations for gay clients, birthdays, graduations, etc.

eric said...

"Aside from the compelled expression issue ostensibly at stake, I see an effort to silence the message "we don't serve gay people here."

I wonder if there is a way to get around this that the left, like Ann, are using.

Here Ann equates a persons desire to work in a business where they take photographs of weddings. If you're a wedding photographer, can you refuse to take photographs of birthdays? Business events? Coming of age parties? Etc?

I would think that'd be pretty obvious, right?

So here come the fascists who have decided Marriage means something other than what we've all taken it to mean. Here is a baker, or florist, or photographer who wanted to make it their business to cater in some fashion to weddings (Which was defined as the marriage of one man to one woman). Then our betters came along and decided that a wedding could also means the marriage of a man to a man or a woman to a woman. Which isn't what they are in the business of doing. They didn't realize the new definition would be forced upon them.

So, how about playing the same game?

Can you be a baker, florist, or photographer for Traditional Marriage only? If not, how about for Religious Weddings only? Or if that doesn't work, is there a word we can make up out of whole cloth to use to describe what it is we want to participate in and be left alone in? WoMaMarriage?

Hello folks, I'm a WoMaMarriage photographer, what, you want to marry a dolphin? That's not what I do here at WoMaMarriage photography.

jr565 said...

If gay marriage is illegal in the state where a baker had to make a cake for a gay couple, then that would mean it wouldn't matter if a marriage was legal or illegal. A baker simply couldnt deny someone a request for a cake.
Bakers therefore should sue the state for requiring them to not discriminate in areas where the law itself discriminates. Punishing them would therefore be lawless. Since the state itself would be saying the disrmination was ok. At least when it came to issuing a license.

jr565 said...

jimf wrote:
Another good way for a photographer to get out of doing it is to where a t shirt to the wedding which says "gay marriage is an abomination" or something like that.

But then they'd be sued for hate speech.

darrenoia said...

@jr565, it seems that it was a same-sex commitment ceremony and not a marriage. One could argue that the difference is meaningless, but if that's true I'm not sure why society is having this extended fight about it.

I know where I would draw the line. It seems clear to me that all of the infamous vendors — the photographer, the baker, etc. — were quite happy to provide services to gay people per se. What they objected to was a type of ceremony they didn't support. No doubt to the left, that feels like semantics or splitting hairs. But in the context of a religion that instructs its adherents to "love the sinner, hate the sin," that distinction has real meaning.

The gay lobby has been very successful, as we have seen also in the Eich case, at pushing the proposition that opposition to same-sex marriage is in and of itself discrimination against homosexuals. I disagree. I think the courts should be able to distinguish between rejecting an event and rejecting a person.

Argument by analogy is rife in these (and I suppose all legal) cases, but I wonder if the court would make a distinction between a photographer who refused to photograph Muslims and a photographer who refused to photograph a clitoridectomy. (And yes, for God's sake, I recognize that all Muslims aren't performing clitoridectomies.) It seems to me that there is a great deal of difference between the two. One could be categorized as discrimination (although I would have our society give broad protection to businesses to do even that); the other is not discriminating against people per se, but against an event.

I don't see why anything in our constitution or laws dictates that events, as opposed to people, should be given protected status against discrimination. And in these cases, it is clearly an event, and not a person, that the opponents of gay marriage are opposing.

Dave Schumann said...

It seems that, in an ironic twist, the photog got in trouble for trying to be polite to the gay couple -- falsely claiming to be unavailable when she simply didn't want to do it.

Had the photographer said "I believe your 'marriage' is an unnatural and sinful act" -- and then escalated from there, enumerating all the personal problems she had with the couple and the acts they were ceremonially consecrating -- one imagines the situation might have been different.

That is, rather than politely refuse to do business with gay clients without specifying why, artists are now required to just make themselves personally toxic to the client (using what is, for the moment, protected actual speech) if they want to avoid putting personal effort into the work.

Dave Schumann said...

(My previous comment was inspired by jimf's comment -- I think he's right but that in fact the personal confrontation, which the photog had tried to avoid here, will need be up-front during the consultation with any gay clients in order to avoid a lawsuit)

Hagar said...

Lying and other evasive actions is not an option when the question is a matter of principle.

And the question still is about forcing people to associate with persons they do not wish to be associated with.

Unknown said...

Ms AA: Does the Court eve SAY why they decline to take a case?

Is it possible that the Court declined because the Hobby Lobby case is not settled?

Lydia said...

This in the New Mexico Supreme Court opinion is interesting:

“Businesses that choose to be public accommodations must comply with the NMHRA [New Mexico Human Rights Act], although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws. “

Is that workable for both sides in this?

Basil said...

Love the passive aggressive "take bad photos" or "broken equipment" suggestions here. Straight out of the Soviet sullenness way of life so preferred by the left wing Fascists and so well documented by Solzhenitsyn.

The Answer is not only no but h*ll no!" We are Americans and we value our freedom. We will no go quietly into the serfdom of the collective.

Just because the Supreme Court won't do what it was created to do does not mean we go quielty into the night.

CWJ said...

Althouse @1:22 wrote

"Aside from the compelled expression issue ostensibly at stake, I see an effort to silence the message 'we don't serve gay people here.'"

And that is the premise I reject. As I recall, there has been no evidence in any of these photographer, baker, etc cases that the defendents would turn away business from a gay person in any situation other than "marriage."

Likewise, as I commented in the Eich controversy.

n.n said...

The simple answer is that there is no basis for discrimination, other than if they can prove that they will suffer a material harm from their association. The long answer is that there is also no legal defense for selective standards, and the judges are either unwilling or unable to present an objective, reproducible moral standard.

Unfortunately, as people have seen fit to overturn traditional and natural standards, there has been a distinct lack of interest or ability to reconcile the moral hazards created by their progressive religion or rather cult. They have instead chosen to punt the responsibility of reconciliation to future generations.

We live in interesting times, in part, due to the cowardice of the most "enlightened" generation.

Crunchy Frog said...

How could this case not even manage four votes for cert? Let's explore this.

Three votes are automatic: Scalia, Alito, Thomas. So where is Roberts? The more I think about it, the more I am convinced that he is fighting a rear guard action against Kennedy. Roberts has reason to believe that Kennedy is gung ho to impose a 50-state solution, and is engaged in strategic voting to delay it for as long as possible.

It's the only thing that explains his baby splitting punt of a decision in Hollingsworth, especially after he saw how Windsor was coming down. He knows he doesn't have the votes, so he's doing what he can to minimize the impact.

Clayton Hennesey said...

Some legal eagle here explain to me the law requiring a vendor to give a definitive and timely answer to a gay-anything inquiry.

Until someone can physically jack you up and frogmarch you through your paces, "I'll have to get back with you" seems like a usefully indefinite period of time to me.

Owen said...

n.n @ 4:14: "Unfortunately, as people have seen fit to overturn traditional and natural standards, there has been a distinct lack of interest or ability to reconcile the moral hazards created by their progressive religion or rather cult. They have instead chosen to punt the responsibility of reconciliation to future generations."

Great point. There are big cultural externalities here. The plaintiffs are exploiting that reservoir of social capital at the expense of the defendants. Moral gtound whose "ownership" had been left open or ambiguous is being seized by the newly-empowered minority. At the expense of the befuddled majority, who thought that it had do enough by moving from rejection to tolerance.

The blowback will be surprising and, I think, large. Simple physics: if a 15% group asks for toleration, over a fairly long period of acclimation, that's one thing. But if 5% group demands forced associations, overnight, that's quite a different thing.

Crimso said...

'Would "clients" be a word that would interfere with the clarity of thought you seem to be enjoying?'

It is not germane to my point, a point I believe to be objectively true. "Clients," "customers," "johns," "victims," "commenters." I made a comment that did not in any way involve the terminology you are exploring. And make no mistake, I am enjoying clarity of thought. There's no "seem to be" to it.

If I'm having a Nazi rally, and want it documented, is a Jewish photographer obligated to do the work when asked? And yes, I just went there.

Renee said...

Maybe there are other cases that are more urgent to look at. Just because it is in the media, doesn't mean it is urgent or important....

Jack Wayne said...

Denial of standing is how the judicial elites keep the Kulaks in order.

Jack Wayne said...

Hey Ann, isn't it about time you told us how good the laws against red-lining are? Straight line from there to here.

Jay said...

Why did Willock sue? Presumably, because she cares about the nondiscrimination principle and wants to silence the negativity heard in the exclusion from a business even if nobody who is actually excluded would want to use.

Actually, Willcock sued because thinking "Gay marriage is immoral or wrong" is unacceptable to zealots such as Willcock.

Kristophr said...

Yep. Nothing but crotch shots.

That is apparently the only way to protect your freedom of association.

Deliberately bad service. Crotch shots, and wedding cakes that have no sugar in the frosting or filling. I hope lawsuit-happy Gays like deliberately bad service and unusable products.

Michael The Magnificent said...

Aside from the compelled expression issue ostensibly at stake, I see an effort to silence the message "we don't serve gay people here."

Thought experiment: A woman calls Elane Photography, informs them that her and her girlfriend, though both 100% certified heterosexual, would like to hire Elane Photography to photograph their wedding-style ceremony.

Do you think that Elane Photography would have then been willing to photograph the event because they were straight?

Lorenzo said...

So how do we choose which groups it's illegal to discriminate against? Who does the choosing? How are members of the discrimination-proof groups identified and verified?

I Have Misplaced My Pants said...

I'm rather disgusted by all the passive-aggressive, weaselly ideation here. If you won't do something because of your principles, say so loud and proud and take the consequences (unjust as they may be) with chin held high.

Are we men, or mice? No one with any dignity should even think about, "Well, I guess I'll take the pictures, but I'll just take them badly." Come on! You're not their bitch! Stop acting like it!

Here I stand. I can do no other.

Joe said...

Had the gay couple decided to have a nude wedding, would their "protections" continue? Does their homozexuality protect their behavior entirely?

Gahrie said...

If only Elaine Photography had gone to the wedding, taken pictures and then realized that the equipment had suffered "technical difficulties" and no images were captured. They could have refunded the money taken and walked away, having only lost a few hours. Providing that their contract specified the relief for non-performance was refund on fees only.

But that is not the way Christians behave, that is the way Leftist assholes behave.

Darleen said...

We're talking about a business that sells a service, that service being wedding pictures. Just because their service can fairly be described as artistic (a word with, let's face it, very little formal meaning) should not give them special rights over other businesses to pick and choose who they will sell their services to.

But photography is not just a service, because it produces an expressive product in which the artist retains fully copyrights.

Photographers are no different than screenwriters, copywriters, public relations people and all manner of creative/expressive messengers who earn their living with their talent TO express.

The wedding couple own the physical prints of their pictures, but not the images themselves.

Just like a magazine may only receive first publication rights to a short story or article, even ones they commission.

Jupiter said...

"Perhaps the is an issue that needs more percolation in the lower courts or that the Court needs to put off until after its (inevitable) decision declaring a constitutional right to marry a person of one's own sex."

Given that none of the people who wrote or ratified the Constitution gave any evidence that they thought people had a right to marry members of their own sex, it seems fairly clear that Althouse does not believe the Constitution, as a document, means anything at all. So tell us, Professor Althouse, when you eliminate the notion that written words have a meaning exterior to the wishes of those who happen to be reading them, what is left of the law?

cubanbob said...

Take the pictures. Don't take the money. Upload pictures on to the copyright office website for copyright applications and pay the filing fee. Deny said couple a license to use said photos.

n.n said...

Owen:

This is not a "minority" operation. This is a Democrat operation. Perhaps backed by Republican elements. This is their modus operandi to compete where they lack democratic leverage. They have a history of creating moral hazards without thinking of their long-term consequences. They have survived only because they promise people rainbows and unicorns, and libertine freedoms.

Anyway, their solution is to let future generations cope with the progressive dysfunction engendered by unreconciled principles. Our ancestors were courageous and took a stand on many but not all the issues of their time. Today, our population is largely cowed and cowardly. Preferring the sweet promises of instant gratification without accountability.

Owen said...

n.n. "...this is not a minority operation..." Having just read Kenneth Minogue's superb book, "The Servile Mind: How Democracy Erodes The Moral Life," I tend to agree. More and more, for more and more of us, moral life has been re-shaped around us like the cattle chutes designed by Temple Grandin. Finding and holding a strong clear point of principle is never easy and always lonely. But it is being made ever harder, deliberately so, by the Progressives, who need to improve us.

Owen said...

n.n. "...this is not a minority operation..." Having just read Kenneth Minogue's superb book, "The Servile Mind: How Democracy Erodes The Moral Life," I tend to agree. More and more, for more and more of us, moral life has been re-shaped around us like the cattle chutes designed by Temple Grandin. Finding and holding a strong clear point of principle is never easy and always lonely. But it is being made ever harder, deliberately so, by the Progressives, who need to improve us.

Renee said...

When I was married I had a relative who didn't attend the religious ceremony, because it conflicted with his religious beliefs. His family did attend the reception.

I thought nothing of this, I didn't think it was disrespectful. He was just being honest with his own convictions at time.

I rather accept that there are differences, then to have some 'eye rolling' during the ceremony. I've witness 'eye rolling' by a lesbian couple at a heterosexual couple wedding that reference marriage as a man and woman open to children. I sat behind them. The ceremony wasn't in a church and the couple created their own vows, but had and now currently attend church.

I find myself stuck, because I don't think I would attend a same-sex wedding/reception. I could love and respect the relationship to extent of understanding companionship and probably stop by the house with a gift sometime after the event. I don't think it is fair to the couple for me to there and potentially 'eye roll' through the ceremony.

Marriage wasn't about companionship, and the government doesn't have a significant interest in companionship. Marriage at one point had to be something else, and it deeply unsettling the framing of our laws in the past decade.

Owen said...

Sorry for double-post.
*hangs head in shame*

Mark said...

Cubanbob - you do realize most pro wedding photographers (those whose work could be considered art) use contracts, right?

Playing copyright games with the photos would clearly violate that contract, whereas taking competently shot photos with no soul or art is completely within the contract.

There is no stipulation that art be produced in the contract, just that competently taken photos are produced, of said variety/number, and delivered in the manner very specifically delineated. Most smart ones also state how any disputes are to be arbitrated. I am sure a couple lines limiting damages could be inserted.

If you don't want to shoot inter-racial marriages, don't go into wedding photography. Ditto on gay marriage.

A friend of mine is a very successful commercial photographer and will not shoot weddings. There are far better ways to make lasting art in the field of photography than shooting weddings.

Anglelyne said...

Owen: Sorry for double-post.
*hangs head in shame*


Don't be ashamed, Owen. It was a fine post. ("...moral life has been re-shaped around us like the cattle chutes..." - good one). Your posting it twice compels me to go dig out and read that Minogue book, which I purchased a while ago, immediately buried under a stack of other books, and forgot about.

Anglelyne said...

IHMMP: I'm rather disgusted by all the passive-aggressive, weaselly ideation here. If you won't do something because of your principles, say so loud and proud and take the consequences (unjust as they may be) with chin held high.

Are we men, or mice? No one with any dignity should even think about, "Well, I guess I'll take the pictures, but I'll just take them badly." Come on! You're not their bitch! Stop acting like it!

Here I stand. I can do no other.


Exactly what I thought. The compulsion to lie is what causes the moral degradation invariably observed in totalitarian regimes.

Of course, this trend in our society started long before this latest "gay marriage" stuff. Only the moral exemplars among us (not me!) resist getting sucked in in the first place. Most of us go along with the first, little lies because it's easier to tolerate or ignore them, because the business of life demands our attention. But that's never the end of it. The more you lie, the more you have to lie. Forcing you to lie becomes an end in itself.

Phaedrus said...

I took your pictures but unfortunately none were in focus due to a camera malfunction.