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Court Holds That Wedding Photographer Cannot Refuse Service To Gay Couples

law-gavel-lights

Marking what is likely the end of a legal battle that has lasted for the past seven years, the New Mexico Supreme Court has ruled that an Albuquerque wedding photographer can be held liable under the state’s anti-discrimination laws for refusing to provide service to a same-sex couple:

The New Mexico Supreme Court on Thursday affirmed a decision against a photography studio that was sued after refusing to photograph a same-sex couple’s commitment ceremony in 2006, saying the First Amendment does not permit businesses that offer services for a profit to choose whom to serve.

In its opinion, the court said that refusing to photograph a same-sex couple’s commitment ceremony “is no different than refusing to photograph a wedding between people of different races.”

Jonathan and Elaine Huguenin, the owners of the studio, Elane Photography, in Albuquerque, oppose same-sex unions. In court papers, the Huguenins argued that they did not want to convey through pictures a conflicting “understanding of marriage,” and given that photography is a means of artistic expression, they were free to decide whom they want to photograph.

In a statement, a lawyer for the Huguenins, Jordan W. Lorence of the Alliance Defending Freedom, a legal advocacy group based in Washington, said, “America was founded on the fundamental freedom of every citizen to live and work according to their beliefs and not to be compelled by the government to express ideas and messages they decline to support.”

Central to the dispute was the interpretation of the New Mexico Constitution’s Human Rights Act, revised in 1972 to offer equal protection to people regardless of sexual orientation. It is the same provision invoked by gay and lesbian couples arguing for the legalization of same-sex marriage in New Mexico.

The court’s five justices were unanimous in their ruling, upholding a 2012 decision by the State Court of Appeals.

As I noted, this case has been something of a cause celebre among opponents of same-sex marriage who have pointed to it, as well as a handful of other decisions involving similar laws from other parts of the United States and some originating in foreign nations. The case supports, they claim, the idea that legalizing same-sex marriage will cause the religious liberties of American citizens who oppose same-sex marriage for religious reasons similar to the way that the Affordable Care Act’s contraceptive coverage mandate allegedly violates the religious liberties of employers who are opposed to contraceptives for religious reasons. Indeed, the reaction on the right to this decision has mirrored many of those arguments. Over at National Review, for example, John Fund sees the case as “winnowing down religious liberty,” while Kathryn Jean Lopez wonders if religious liberty will survive same-sex marriage. However, as Rod Dreher notes, this was a case that involved more than just religious liberty:

Note well that the libertarian Cato Institute and prominent law professors Eugene Volokh and Dale Carpenter — all supporters of same-sex marriage — had filed a friend of the court brief on behalf of the photographers, arguing that artists must not be compelled by the state to use their talent in ways that violate their conscience. There is simply no way not to see photography as an art. The New Mexico court disagreed. New Mexico does not have same-sex marriage; the ruling was not on marriage law, but anti-discrimination law. Still, the importance of this ruling is that it’s another example of courts establishing in jurisprudence that homosexuality is exactly like race for purposes of non-discrimination — that is, that the only reason to discriminate against homosexuals is irrational animus, as the US Supreme Court has been holding.

I would have granted First Amendment protection to an artist wishing to discriminate on the basis of race, or any other protected category. To compel a writer, photographer, painter, composer, or what have you, to put her talent into the service of something that violates their conscience is a serious wrong. If a gay photographer believed in good conscience that he could not photograph the wedding of Christian fundamentalists, then I think he absolutely should have the right to refuse, on First Amendment grounds.

Jonathan Turley is similarly troubled by the decision:

In the end, I remain torn by this ruling. I see the logic and the precedent for the decision. However, I have lingering discomfort with a required expressive act like photography. It is in my view a close question and I would love to read the thoughts of our blog on the issues. There may be no way to accommodate such expressive rights in a public accommodation law. However, that would require deeply religious businesses to either shutdown or engage in ceremonies that they find morally objectionable. It is a tough call despite my long-standing support for same-sex marriage and gay rights. What do you think?

In the end, there are actually two ways to approach this case. One could take the position that Fund and Lopez do that there should be some kind of blanket protection for people who have religious qualms about same-sex marriage such that no vendor should be required to provide services to such an event. This would apply as much to a baker, caterer, or bartender as it would to a photographer. It would also mean that a dining facility owned by someone with strong religious beliefs could refuse to make its venue available for a same-sex wedding reception. However, as Jazz Shaw notes, once you make the argument that there ought to be a right for private business owners to discriminate, it’s hard to see where the line stops:

When you raise the specter of “reserving the right to refuse service” in private enterprise, one of the first images evoked is the famous Whites Only Lunch Counter. Now, if you are one of the hardest of the hard core, Big L Libertarians, you’ll claim that this is still too great of an intrusion of government control on private enterprise. The argument goes that the owner will prosper or suffer as a result of the policy as the market dictates. Black diners clearly need to eat, so other competition will rise to fill that vacuum. And in the extreme case, enough people will be angered by the policy that the restricted lunch counter will be driven out of business. It’s the Invisible Hand in action.. it either high fives your or smacks you down.

But still, that image makes many, many people feel extremely uncomfortable. Maybe the government has to step in.

That was certainly the determination that was made in the 1960s when the Civil Rights Act of 1964 was passed and private discrimination o the type that had been a part of the South for generations was outlawed. In that case, there’s a very compelling case that Federal action was necessary because the private discrimination was tied up in an entire social and legal framework known as Jim Crow that would have made the libertarian solution next to impossible to achieve. Should that same rule apply to discrimination against homosexuals? New Mexico has made the determination that it should, but many other states have not and neither has the Federal Government.

Rather than looking at this as a general attack on anti-discrimination laws, though, it strikes me that a better approach would be to look at the First Amendment issues that Dreher and Turley raised in their posts, and which were a prominent part of the amicus brief filed by the Cato Institute and Professor Volokh. There is no question that photography is an art form, and that a wedding photographer quite often uses artistic judgment in how they stage and develop the photographs that they create for their clients. That’s why the work of a professional photographer is so different from the snapshots that your Uncle Mel took at the reception, one involves the use of artistic talent as a service that is being provided for a fee, the other doesn’t. What this case really asks, then, is should an artist be forced to create a work of art of anyone, or should they be free to refuse service in particular cases?  Answering yes to this question would preserve artistic freedom, but it would also mean that anti-discrimination laws such as the one in New Mexico would still be applicable to ordinary vendors such as bakers, caterers, and reception hall owners. In the end, that strikes me as a pretty fair solution to this dilemma.

Here’s the court’s opinion, though, decide for yourself:

Elaine Photography v. Willcock by dmataconis

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    There you have it: the nightmare scenario come to life. The oppression of wedding photographers. What’s next? Will we also have to rent them tuxes? And will an additional level of fabulousness be required for said rented tuxes? God will surely smite this nation.

    Highly-rated. Helpful or Unhelpful: Thumb up 48 Thumb down 24

  2. gVOR08 says:

    I have never understood this libertarian argument over the Civil Rights Act and lunch counters. Certainly one can argue that the lunch counter owner should be free to do as he wishes within his own property. But once he has opened up his establishment to the public for money, doesn’t the situation change? Why is there not also a libertarian argument that black people should be free to eat wherever they care to as long as they’re willing to pay? Surely the net freedom in the country was increased.

    The only explanation I can come up with is that for a libertarian, freedom for himself and people like him counts a deal more than freedom for people with whom he does not empathize. Or, more charitably, somehow loss of freedom due to government action counts way more than loss of freedom due to government inaction.

    Highly-rated. Helpful or Unhelpful: Thumb up 31 Thumb down 13

  3. Todd says:

    I’m not really sure I see the 1st amendment “artist” angle here … other than maybe the photographers misunderstanding the idea that their religion somehow gives them the right to discriminate.

    As you point out above, wedding photography is something of an art, and photographers often do have extensive pre-wedding interviews with their prospective clients, to discuss the mutual “vision” for the event.

    The owners of Elane Photography could have quite easily had such a discussion with this couple, and simply explained that they didn’t feel they’d be a good fit for what Ms. Willock was looking for … and if they could show that they’d turned down jobs from hetrosexual couples in the past, whose ideas didn’t mesh with their artistic vision, it would have probably been pretty hard to prove discrimination.

    The reason they lost this case though, is their attitude that their religious beliefs afforded them a “right” to discriminate … and therefore made them perfectly willing to tell the couple that their sexual orientation was the reason why they wouldn’t photograph them.

    In short, I don’t see any sort of “slippery slope” here for photographers or other artists. This case was about religious bigotry, not artistic vision.

    Hot debate. What do you think? Thumb up 35 Thumb down 41

  4. bill says:

    this is the reason why businesses should always post a ‘we reserve the right to refuse service to anyone” sign on their business. it’s not like they’re the only photographer in the world, and the courts have no business saying who you can and can’t do business with. sure, maybe not tell them the real reason, but anyway the court is overstepping their bounds.

    Hot debate. What do you think? Thumb up 32 Thumb down 22

  5. Todd says:

    @bill: Businesses who post such a sign would be perfectly within their 1st amendment free speech rights to do so. However, they wouldn’t magically gain any additional rights to discriminate, over businesses who don’t display such a sign.

    In other words, if I was to go into a restaurant after not having bathed for several days, and started verbally accosting other customers, they could legally ask me to leave whether they had a “we reserve the right … ” sign or not.

    However, if I went out to eat on my lunch break, and was refused service (at a restaurant open to the public) because I’m white, no sign on the door would make that legal.

    Highly-rated. Helpful or Unhelpful: Thumb up 34 Thumb down 3

  6. Mikey says:

    I don’t buy the “but it’s art” angle at all. Yes, it’s art, but they’re employing that art in a business, and the moment they do that, they’re required to follow the same rules as every other business.

    Highly-rated. Helpful or Unhelpful: Thumb up 31 Thumb down 7

  7. HarvardLaw92 says:

    Did I miss where public accommodation laws just happened yesterday?

    Highly-rated. Helpful or Unhelpful: Thumb up 26 Thumb down 0

  8. gVOR08 says:

    In the linked article we find that

    One of the justices, Richard C. Bosson, wrote: “At its heart, this case teaches that at some point in our lives, all of us must compromise, if only a little, to accommodate the contrasting values of others.”

    Well put. If we are to live together as a society, a little tolerance is required.

    Hot debate. What do you think? Thumb up 23 Thumb down 24

  9. Tyrell says:

    Okay, but what couple in their right mind would choose a wedding photographer who really does not want to do their wedding photos ? This is a major decision. You need a photographer who is really into the wedding and has some sort of relationship with the couple or their family. This isn’t something that you go down the list in the yellow pages to find. You do not get a second chance at the pictures: once and done. We carefully, very carefully chose our photographer and only on several recommendations. It is a major investment of money and memories. You absolutely have to have the right fit and I cannot over emphasize that.
    These people surely could have found someone else that would have gladly done their photos. I wonder if this was done to make some kind of point.
    Will this ruling have any bearing on pastors who refuse to do a wedding? Keep in mind that church weddings are the province of the pastor and in most cases must also be approved by the church leadership. They can disapprove the wedding for any number of reasons. They do not even have to give a reason. I know someone who will bring up tax exempt status for churches. Well I have second thoughts about that too and the main reason is that it always allows the government to have a foot in the door. I wonder how long it will be before someone files an action about that. I know that churches and pastors will be studying this ruling. This of course is something that they said: ” Oh, that will not ever happen. The courts will not force any of this on people who do not believe in it ” Well it’s here.

    Highly-rated. Helpful or Unhelpful: Thumb up 33 Thumb down 12

  10. Mikey says:

    @Tyrell: Churches are not for-profit businesses. That’s the difference. And that’s why there’s no slippery slope from a court decision that requires businesses to adhere to the laws governing public accommodations to priests being required to perform same-sex marriages.

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 2

  11. bill says:

    @Todd: true, but they could just say they don’t like you and they’re well within their rights. if they said they didn’t like you because of your race, religion,etc. then they’d be breaking the law. this photographer offered too much info, that was their problem. they could have just made an excuse but instead chose to make a statement.

    Like or Dislike: Thumb up 7 Thumb down 12

  12. An Interested Party says:

    true, but they could just say they don’t like you and they’re well within their rights. if they said they didn’t like you because of your race, religion,etc. then they’d be breaking the law. this photographer offered too much info, that was their problem. they could have just made an excuse but instead chose to make a statement.

    Ahh, so in other words, business owners should have the right to practice their bigotry as long as they are deceitful about it…that’s some real American liberty you have there…

    Hot debate. What do you think? Thumb up 22 Thumb down 11

  13. LightsOut says:

    @Mikey:

    Yes, it’s art, but they’re employing that art in a business, and the moment they do that, they’re required to follow the same rules as every other business.

    I think you’re onto something here, but there’s a further distinction to be made.

    Consider a photographer who simply took pictures on her own time and then attempted to sell them later. Even if she invited subjects to her studio or wherever, I think we would agree that a) she’s employing her art as a business, and b) she could choose to work with or photograph whomever she wanted to, regardless of considerations of race, sexual orientation, etc. She could discriminate freely, and we’d all be ok with her right to do so.

    But the photographers in this case were employing their art as a service, and that’s where they get in trouble.

    Consider the common restaurant example, in which we all—well, at least most of us—would agree that it would be illegal for a restaurant to deny service due to discrimination. That would also apply to a very small restaurant run by one person who is also the chef. And if this chef considered cooking an art form—and many people do—then you’ve got a similar situation to that of the wedding photographers.

    Can a chef, even one who considers herself an artist, refuse to serve a gay couple in her restaurant? If you say no, then I think you have to agree with the decision in this case.

    One possible flaw in my chef example is that it’s more closely related to that of a photographer operating a studio and offering her services within. In that case, I think people would be more likely to agree that discrimination by the photographer would be wrong. But confusion arises when the photographer goes to another location, such as the wedding site. Why is this? I’m not sure. It’s really the same thing, isn’t it?

    Like or Dislike: Thumb up 15 Thumb down 1

  14. Todd says:

    @bill: Yes, I believe we might actually be almost on the same page. I think the photographer could have easily found other legitimate (and legal) reasons to not take this job.

    That said, the simple “I don’t like you” idea is not really all that iron clad.

    If you run a public business, and there’s a pattern which shows that the people you consistently refuse to serve “for no particular reason” just happen to be of a certain race, religion, sexual orientation, etc then the fact that you never explicitly stated your bias probably isn’t going to help you. (IMO)

    Like or Dislike: Thumb up 11 Thumb down 0

  15. James Joyner says:

    I’ve always been torn about the public accomodation exception, in that, as a theoretical matter, a business owner should be free to discriminate in any manner he damned well pleases on his property but that, as a practical matter, widespread prejudice would have a chilling effect on individual rights. That is, the practical effect was to make it damned near impossible for blacks to travel in the 1950s because there were relatively few restaurants and hotels who would serve them. Springing forward to 2013, though, there would be so few establishments wanting to not serve blacks that it would be a non-event.

    In this particular instance, I’m not sure I buy the “artistic expression” angle. But I’m amenable to the notion that a photographer isn’t a public accommodation at all.

    Like or Dislike: Thumb up 11 Thumb down 2

  16. Mikey says:

    @LightsOut: I think if a business qualifies as a “public accommodation” by law, then it doesn’t really matter if the proprietor considers what they do “art” or not. It’s pretty cut-and-dried at that point, they may not discriminate.

    Like or Dislike: Thumb up 7 Thumb down 2

  17. LightsOut says:

    @Mikey:

    Oh, I agree with you. I was thinking more about moral arguments rather than legal ones.

    I also think this is all ridiculous. When you open a business and offer services to the public, then you have to accept that the public includes everyone, not just people you like or agree with.

    Like or Dislike: Thumb up 9 Thumb down 3

  18. Jenos Idanian #13 says:

    @gVOR08: Well put. If we are to live together as a society, a little tolerance is required.

    Unless, of course, you’re a Christian who actually believes in their religion. Their beliefs need not be shown any tolerance.

    I think the photographers are making a mistake by shutting off a whole new line of business, but I also think they have the right to make such a mistake. However, this does show that some of the arguments made in favor of gay marriage were, as predicted, bullshit. This isn’t about “tolerance,” as it formerly meant. Now “tolerance” is the same as “acceptance,” and simply saying “do what you want, just don’t ask me to celebrate it” is in and of itself a hate crime.

    Hot debate. What do you think? Thumb up 19 Thumb down 20

  19. michael reynolds says:

    @Jenos Idanian #13:

    Unless, of course, you’re a Christian who actually believes in their religion. Their beliefs need not be shown any tolerance.

    You are so right. The 85% or so of Americans who are Christian are regularly discriminated against. Why look at how few Christians there are in Congress. Or how few Christian presidents we’ve had.

    Also: no Christian churches anywhere. Or Christian schools. Or Christian TV networks. Or Christians in business. Christians forever attacked in the streets by atheists.

    You know you’re an idiot, right?

    Highly-rated. Helpful or Unhelpful: Thumb up 37 Thumb down 19

  20. rudderpedals says:

    I’m okay with this. The state passed a law and this photographer broke the law. It’s not a federal matter. It is a question of professionalism.

    Many of us have artistic pursuits. The difference between a professional and a dabbling amateur is that the pro does the best possible job without regard to his own personal issues.

    Like or Dislike: Thumb up 8 Thumb down 3

  21. James Pearce says:

    @Todd:

    This case was about religious bigotry, not artistic vision.

    Bingo. The bartender thinks he’s an “artist” too.

    @Tyrell:

    Okay, but what couple in their right mind would choose a wedding photographer who really does not want to do their wedding photos ?

    I don’t think the couple were suing to get Elane Photography to photograph their wedding…..it’s bigger than that.

    Indeed, I suspect they were suing to get this very result. Not only is it established that Elane Photography can’t pull this stuff…..no one can.

    Like or Dislike: Thumb up 13 Thumb down 4

  22. CSK says:

    What would happen if a feminist cinematographer was asked to film hardcore porn and refused on the grounds that it violated her politics? Or a religious (not necessarily Christian) cinematographer was asked to film hardcore porn and refused on the grounds that it violated his or her religious sensibilities? Or a cinematographer who was neither feminist nor religious but had ethical objections to hardcore porn? Could any of those people be sued? They are, after all, providing a service, but refusing it to someone on political, religious, or ethical grounds.

    Highly-rated. Helpful or Unhelpful: Thumb up 31 Thumb down 9

  23. James Pearce says:

    @Jenos Idanian #13:

    I think the photographers are making a mistake by shutting off a whole new line of business, but I also think they have the right to make such a mistake.

    Well, then you would be wrong.

    Not just wrong-headed, but factually objectively wrong.

    Hot debate. What do you think? Thumb up 10 Thumb down 15

  24. Mikey says:

    @CSK: Neither of those scenarios involves a public accommodation.

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  25. michael reynolds says:

    @CSK:

    Good grief.

    The man was a wedding photographer. He was asked to photgraph a wedding.

    If he had a been a porn cinematographer, then yeah, I think he’d pretty much have to not discriminate against. . . You know what? There’s just no conclusion to that sentence because it’s just so completely divorced from reality.

    Hot debate. What do you think? Thumb up 16 Thumb down 9

  26. Tyrell says:

    @James Pearce: Exactly – they were doing this to make some kind of statement instead of actually needing a service. This makes it dishonest.

    Hot debate. What do you think? Thumb up 15 Thumb down 13

  27. Todd says:

    @CSK:

    In my earlier example above about being refused service at lunch because I’m white, I had originally written as “gone to lunch in my military uniform, and been refused service because the owner held strongly anti-war views”.

    While if the above circumstance was to ever actually take place, I’m quite certain a quick Facebook post or tweet on my part would probably cause such a restaurant owner much grief, I’m not positive that refusing service for that particular reason would necessarily be illegal.

    In your example, since filming pornography is actually against the law in most places, such a cinematographer would not only be within their rights to refuse, but would be obligated to. But even in a locality where it was not against the law to make poronography, the idea that anybody would ever be sued for “discriminating against poronographers” is absurd.

    … unless of course your real intent of using that particular example was to somehow equate gay marriage with porn ????

    Like or Dislike: Thumb up 7 Thumb down 9

  28. Rafer Janders says:

    @CSK:

    Could any of those people be sued?

    Helpful legal hint: anyone can be sued, by anyone, for any reason.

    Not everyone, however, can be successfully sued. Lawsuits without merit in the facts and the law will be dismissed and/or lost.

    Like or Dislike: Thumb up 7 Thumb down 1

  29. James Pearce says:

    @Tyrell:

    Exactly – they were doing this to make some kind of statement instead of actually needing a service.

    I think you misunderstand the purpose of a case like this. It’s about establishing a precedent, not just making a statement.

    Like or Dislike: Thumb up 8 Thumb down 3

  30. CSK says:

    @Todd:

    Nope. My intent was simply to point out that people can have reasonable as well as unreasonable motives to refuse service. Perhaps I used a bad example. I’d be happy, were I a photographer, to shoot a gay wedding. I wouldn’t be happy to shoot any kind of porn.

    Like or Dislike: Thumb up 5 Thumb down 1

  31. Todd says:

    @CSK:

    Sorry, I probably could have left that last question off. :-)

    Like or Dislike: Thumb up 0 Thumb down 0

  32. Mark says:

    @CSK: @CSK:
    Perhaps a swinger’s wedding with a lifestyle party/orgy during the reception?
    Does a wedding photographer have grounds to deny service?

    Perhaps they should just do their wedding at Hedonism in the first place.

    Like or Dislike: Thumb up 4 Thumb down 2

  33. Mikey says:

    @CSK:

    My intent was simply to point out that people can have reasonable as well as unreasonable motives to refuse service.

    There are also legal and illegal reasons to refuse service. When a motive someone considers reasonable is also a reason that’s illegal, the courts will likely get involved. In this case the law was judged to supersede the motive.

    The ethical considerations that would be involved in a refusal to film porn are very different from open discrimination by a public accommodation against a protected class.

    Like or Dislike: Thumb up 9 Thumb down 1

  34. gVOR08 says:

    @James Joyner:

    That is, the practical effect was to make it damned near impossible for blacks to travel in the 1950s because there were relatively few restaurants and hotels who would serve them.

    From the Jazz Shaw piece quoted in Doug’s post

    The (Libertarian) argument goes that the owner will prosper or suffer as a result of the policy as the market dictates. Black diners clearly need to eat, so other competition will rise to fill that vacuum. And in the extreme case, enough people will be angered by the policy that the restricted lunch counter will be driven out of business. It’s the Invisible Hand in action.. it either high fives your or smacks you down.

    Libertarians do seem fond of producing hypothetical arguments that somehow the Invisible Hand, or something, will make everything work out all right. We seem to have another example that not working in the real world.

    Like or Dislike: Thumb up 13 Thumb down 2

  35. Mikey says:

    @James Joyner: Just the other day I learned of something called “The Negro Travelers’ Green Book,” published by Victor H. Green from 1936 to 1964, which contained information on businesses across America that would do business with black Americans. This was more than just a convenience, as trying to check in to the wrong motel could be dangerous.

    Here’s a link to the 1956 edition. http://digital.tcl.sc.edu/cdm/compoundobject/collection/greenbook/id/88

    Like or Dislike: Thumb up 11 Thumb down 0

  36. Scott says:

    There are state legislatures that are trying to carve out a religious exemption for pharmacists who may have a religious objection to certain kinds of legal drugs, e.g. contraceptives and morning after pills). Isn’t this in that same vein: the refusal to engage in a legal business activity because you object to something. It is more than same sex marriage, it is a range of issues for which certain Christian elements want special privileges.

    Like or Dislike: Thumb up 6 Thumb down 5

  37. HarvardLaw92 says:

    @Scott:

    They aren’t trying to. They have done it. 6 states explicitly permit pharmacists to refuse to dispense contraceptives. 6 more have broad refusal clauses that do not specifically apply to pharmacists, but are broad enough to include them. Federal law (Title VII of the Civil Rights Act) has also seen attempted invocation (unsuccessfully thus far) to defend the practice.

    On some level I understand the motivation to sue, but I can’t help wondering if public opprobrium might not be a more useful tool in convincing these businesses that their attitude is a bad idea.

    Like or Dislike: Thumb up 5 Thumb down 1

  38. HarvardLaw92 says:

    Note: because someone will ask, these states are:

    Explicitly permit pharmacists to refuse:

    Arizona
    Arkansas
    Georgia
    Idaho
    Mississippi
    South Dakota

    Broadly constructed laws that include pharmacists by implication:

    Colorado
    Florida
    Illinois
    Kansas
    Maine
    Tennessee

    They are pending, but not yet enacted, in a few others.

    Like or Dislike: Thumb up 2 Thumb down 0

  39. Matt Bernius says:

    @HarvardLaw92:
    Correct me if I’m wrong, but while individual *pharmacists* may be exempted by these laws, pharmacies themselves are not. Meaning that — in theory — while an individual can refuse to fill the prescription, the pharmacy itself cannot refuse to do so (i.e. another pharmacist on staff will do it).

    That said, I am curious about whether or not these laws include provisions for pharmacies that have a single pharmacist or not.

    Like or Dislike: Thumb up 0 Thumb down 0

  40. CSK says:

    For decades, birth control pills have been prescribed to treat various menstrual disorders, most notably endometriosis. How does a pharmacist, who’s supposed to dispense life-saving and health-maintaining drugs, justify not filling a prescription for birth control pills to a woman suffering from endometriosis? She may end up sterile if her condition is unaddressed–which would presumably be an even bigger violation of the pharmacist’s religious beliefs.

    If you want women to have babies, you damn well better furnish them a pill that will enable them do do so–when they choose.

    Like or Dislike: Thumb up 4 Thumb down 3

  41. bill says:

    @An Interested Party: i didn’t say i condoned it, it is theoretically wrong to do so but the legal system really is limited in saying that we should all do what they say. if a business doesn’t want your money they shouldn’t be forced to take it- seems silly but it is what it is. if someone has an issue with me or my lifestyle then i probably don’t want to deal with them either- you can’t legislate morality.

    Like or Dislike: Thumb up 4 Thumb down 4

  42. Gustopher says:

    I call bullish.t on wedding photography being art.

    It’s a craft, not art. They are applying tried and true techniques of composition and lighting to create a finished product, not making a statement.

    It’s like cabinetry — there may be a few artists who use cabinet making as a medium for creating art, but the vast majority of cabinets and cabinet makers are just applying their craftsmanship.

    In theory one could even make an artistic statement with a club sandwich, although most people described as sandwich artists are just victims of am unfortunate marketing campaign.

    We don’t attempt to automatically invoke claims of first amendment protections for cabinet makers and sandwich makers, for their “statements”, and we shouldn’t do so for wedding photographer either.

    Like or Dislike: Thumb up 10 Thumb down 4

  43. David in KC says:

    If anyone was tring to make a point it was the photographer. It takes only a fraction of a brain to get out of a gig you don’t want to do no matter your reason. You talk over the plans, you say that you are booked pretty solid that day, but so and so does a wonderful job and he might have an opening, congradulate them on their coming nuptials and wish them luck. They didn’t do that. They specifically told the couple it was because they were gay. They wanted this confrontation. They got called on it and lost. If this happened to me, I probably would have been pissed enough to sue the crap out of them as well if I lived in a state that lists sexual orientation as protected.

    Like or Dislike: Thumb up 12 Thumb down 4

  44. OzarkHillbilly says:

    I look and look and read and read my copy of the Constitution and I STILL can’t find a right to run a business. Funny thing about that document, I don’t think it says half the things we think it does.

    Like or Dislike: Thumb up 6 Thumb down 2

  45. Andre Kenji says:

    @Gustopher:

    I call bullish.t on wedding photography being art.

    It’s a craft, not art. They are applying tried and true techniques of composition and lighting to create a finished product, not making a statement.

    More or less. A Wedding is a unique occasion, that won´t repeat by itself. It´s also a job that requires sensibility, patience and sensibility, so, you need someone that is entirely committed to do it. Someone that says that he can´t photograph same sex weddings because either religion or politics is a lazy and self indulging “professional” that has no business photographing weddings, regardless of the sexual orientation of the brides.

    But one can also argue that a lesbian photographer could have done a much better job and that there are sensibilities that she could understand better than a straight male photographer.

    Like or Dislike: Thumb up 1 Thumb down 2

  46. OzarkHillbilly says:

    @gVOR08:

    If we are to live together as a society, a little tolerance is required.

    KILL THE HERETIC!!! KILL THE HERETIC!!!!

    Like or Dislike: Thumb up 7 Thumb down 3

  47. Andre Kenji says:

    @CSK:

    What would happen if a feminist cinematographer was asked to film hardcore porn and refused on the grounds that it violated her politics?

    She would not be discriminating against anyone. She only would be extremely unprofessional.

    Like or Dislike: Thumb up 2 Thumb down 5

  48. OzarkHillbilly says:

    @Matt Bernius:

    Correct me if I’m wrong, but while individual *pharmacists* may be exempted by these laws, pharmacies themselves are not. Meaning that — in theory — while an individual can refuse to fill the prescription, the pharmacy itself cannot refuse to do so (i.e. another pharmacist on staff will do it).

    Matt, correct me if I am wrong, is there a Constitutional Right to be a Pharmacist? Meaning that- in theory- if they don’t want to fill out a specific prescription due to religious beliefs, they don’t have to? They can stop being pharmacists?

    In OTHER words, how in the hell does another individuals right to religious freedom make my rights null and void?

    Like or Dislike: Thumb up 5 Thumb down 3

  49. James Joyner says:

    @gVOR08: @Mikey: Right. That was my point.

    As an ideal matter, I think people should be free to associate with whomever they please on their property. No privately owned business is a public accommodation. If you don’t want to associate with white people, atheists, Republicans, or whathaveyou you ought to be able to refuse them service on your private property.

    As a practical matter, some groups of people–blacks, homosexuals, transgendered individuals, and others—face or have historically faced blanket discrimination. If it was only the Heart of Atlanta Hotel that didn’t want to allow blacks to sleep in their establishment, well, big whoop. If, on the other hand, black people needed to buy a guidebook to know which hotels would allow them to sleep there–or wouldn’t potentially lynch them for even having the temerity to inquire—then there’s a big f-ing problem that demands state action, individual preferences be damned.

    In this particular case, I would assume there are plenty of outstanding photographers who would be happy to take pictures of your big fat gay wedding, so the bigots who want to refuse should be free to do so.

    Like or Dislike: Thumb up 12 Thumb down 3

  50. Scott says:

    @Matt Bernius: And if the pharmacy or pharmacy chain was taken over by. let’s say, Hobby Lobby? I would guess they would invoke religious freedom to not fulfill prescriptions that violate their beliefs. I know you can take anything to its absurd conclusion but often that is what court cases end up being.

    Like or Dislike: Thumb up 1 Thumb down 1

  51. Tony W says:

    Wanna know how crazy Republicans are? Christians are the new blacks, according to one Bryan Fischer who compared this decision to Jim Crow laws.

    “Jim Crow is alive and well and living at the New Mexico Supreme Court, and Christian is the new black,” Bryan Fischer said on his AFR Talk program “Focal Point” this afternoon.

    Maybe Jenos should make a donation, it sounds like they need funding to get the word out there about the oppressed Christian minority.

    Like or Dislike: Thumb up 2 Thumb down 4

  52. OzarkHillbilly says:

    @Gustopher:

    I call bullish.t on wedding photography being art.

    OK, I call bullsh!t on you. My step daughter recently got married and there were several photos that were not in the “Wedding Photographers Handbook”. Yes, they were “artistic”. Also, as a long time carpenter and cabinet maker, I am most often constrained by the preconceived notions of architects and home-owners, but every now and again, I am asked to “build something”….. Different. And I do.

    You may think a cabinet is a cabinet is a cabinet, but I can assure you, you have never seen a chiffarobe.

    Like or Dislike: Thumb up 9 Thumb down 0

  53. Jenos Idanian #13 says:

    I had no idea there was such a shortage of wedding photographers that the refusal of this one would put the happy couple-to-be in such dire straits. And they’ve pretty much got a gold-plated excuse to not pay after the fact. All they have to say is that the pictures are unacceptable, and it’s because the photographer had to be brought into court to take them. Obviously the photographer’s resentment overrode their professionalism, and they ruined the couple’s most important day by taking less than perfect pictures. To be followed by another lawsuit, of course.

    All because the photographer simply said that they didn’t want to be part of the wedding. Not that the photographer was going to try to stop it; they just didn’t want to be there.

    Like or Dislike: Thumb up 13 Thumb down 6

  54. LightsOut says:

    @James Joyner:

    I can understand your basic reasoning, but when you reach the conclusion that when one of the two parties—the business owner or customer—must be inconvenienced, it ought to be the non-bigot, I think there’s a problem somewhere.

    Like or Dislike: Thumb up 4 Thumb down 0

  55. Pharoah Narim says:

    I have a problem equating first world problems of gays to what African Americans face during Jim Crow. It really portrays an ignorance of the lifestyles of post Civil War and Jim Crow blacks. We are talking in terms of life and death, physical safety, and daily sustenance. Not….the fundamentalist wedding photographer pissed me off. The is a difference between institutional racism and onesy-twoesy discrimination. I don’t have a problem with the later as it exists unofficially anyway. You know where you aren’t welcomed these days but there are so few of those type places today that its easy to leap frog them and keep it moving. People are bigots…it’s not a huge deal unless it’s backed by the power of police guns and dogs. It’s fair to say we’ve reached a point where exposure and voting with our dollars can take care of the last of the bigoted faithful. The lawsuit was a bad idea.

    Like or Dislike: Thumb up 10 Thumb down 7

  56. wr says:

    @James Joyner: So you think we should rewrite the laws to say that Hilton can refuse to rent rooms to blacks and Hyatt can turn away Jews, as long as there’s another hotel they can go to?

    Really?

    Like or Dislike: Thumb up 6 Thumb down 3

  57. LightsOut says:

    @James Joyner:

    In this particular case, I would assume there are plenty of outstanding photographers who would be happy to take pictures of your big fat gay wedding, so the bigots who want to refuse should be free to do so.

    I think this actually hurts your argument. In the case when there are photographers aplenty, then it’s probably a simple matter for a bigoted one to say, “I will take the job if you insist, but FYI, I think gay marriage is evil so I’d rather not. Big Al’s down the road, however, has no such qualms and does great work.” Worst case, the customer insists on the bigoted photographer, and that poor business owner will be forced to accept money and make people happy. Freedom dies, indeed.

    Like or Dislike: Thumb up 3 Thumb down 3

  58. Tyrell says:

    @Todd: Your point about not being a “good fit” is a good one. If I ran a catering service, I do not think that I would want to service a party for graduates. There are apartments that will not rent to people with small children. There are similar points made concerning barber shops: mens, womens, black, white. The shops that catered to just men or women are rarer these days, but they would politely (in most cases) suggest another place. They did worry about messing up someone’s hair a lot more than any sort of perceived discrimination, which would have looked totally ridiculous if it wound up in court: the judge would have laughed them out and then fined them court costs. I would love to see Judge Mathis or Judge Judy get hold of that one!
    It is time for people to be more reasonable and cut out all of this court action stuff. I would not dare have someone take our wedding pictures that I did not feel good about and trust literally with my life. You usually get to a wedding photographer by referrals from close friends; not by the phone book, cable access channel, or a business card on a bulletin board in a pizza joint!

    Like or Dislike: Thumb up 8 Thumb down 0

  59. @CSK: Uh, what? How on Earth do those questions pop in your head? The person could only be sued in New Mexico if a business denied service because of their “race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap”.

    Like or Dislike: Thumb up 3 Thumb down 1

  60. James Pearce says:

    @James Joyner:

    “No privately owned business is a public accommodation.”

    And yet, the law defines a public accommodation as “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.” (Clipped that directly from the document embedded above.)

    The business’s corporate structure (public versus private) appears to have no bearing on whether it’s a public accommodation, just that it’s open to the public.

    Like or Dislike: Thumb up 10 Thumb down 1

  61. bill says:

    @wr: there’s no need, these companies know their way around the law. here’s a way to see it work in action- send a hotel a message saying you wish to book a block of rooms for a KKK rally or something controversial- see what excuse they use to not do business with you. chances are they won’t acknowledge that groups “views” as part of their reason to decline your request, they’ll say they have no rooms available or something.
    you rarely read a headline about how the gov’t outsmarts private businesses.

    Like or Dislike: Thumb up 3 Thumb down 1

  62. An Interested Party says:

    @Pharoah Narim:

    Oh, so rank discrimination is just peachy as long as no one is being beaten up and/or murdered and the state isn’t backing it up…

    Like or Dislike: Thumb up 3 Thumb down 1

  63. William Wilgus says:

    @Todd: Generally, you can’t force someone to go against their religion. I don’t think this is a First Amendment issue; neither Freedom of Speech or the Free expression of [religion] are involved. It’s a simple Discrimination issue, and one I would think the Photographer would lose. However, why would anyone want someone to do something for them when that someone would be doing that something against their will ?

    Like or Dislike: Thumb up 1 Thumb down 0

  64. William Wilgus says:

    @James Joyner: Unless otherwise specified, a business is ‘open to the public’ in the eyes of the Law. You can’t discriminate. The Photographer’s refusal was clearly discrimination; nothing more, nothing less.

    Like or Dislike: Thumb up 4 Thumb down 3

  65. Raider says:

    This ruling is just another example of how far this country has strayed away from its roots, being a relationship with God and Jesus Christ. Take note of the following words of the Mayflower Compact:

    “Having undertaken, for the Glory of God, and advancements of the Christian faith and honor of our King and Country, a voyage to plant the first colony in the Northern parts of Virginia, do by these presents, solemnly and mutually, in the presence of God, and one another, covenant and combine ourselves together into a civil body politic; for our better ordering, and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame, such just and equal laws, ordinances, acts, constitutions, and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony; unto which we promise all due submission and obedience.”

    There’s God’s will and then there’s man’s will. Man may take it upon himself to pass laws making same sex unions and marriage legal, but does anyone here really think that God has changed his standard which is marriage is between a man and a woman only? Don’t forget what God did to Sodom and Gomorrah.

    Like or Dislike: Thumb up 10 Thumb down 9

  66. michael reynolds says:

    @Jenos Idanian #13:

    Yes, it’s part of the on-going victimization of wedding photographers, as well as being yet another step in the ruthless mistreatment of the 97% of society that is straight. What can the poor 97% do? They are being ground down under the weight of this oppressive 3% minority.

    It’s kinda like Hitler.

    Thankfully there are brave freedom-fighting conservatives like you willing to boldly stand up to protect the 85% that are Christian and the 97% that are straight. Fight on, little soldier, fight on, and keep waving that victim flag.

    Like or Dislike: Thumb up 8 Thumb down 5

  67. Todd says:

    @Tyrell:

    I’m not sure you really do see my point. The photographers could have simply said that it doesn’t sound like a good fit, and none of us would have ever heard about them. Instead they choose to make the situation about their religion and the couple’s sexual orientation. It was a 100% self-inflicted wound, and has nothing to do with the couple being “unreasonable”.

    They didn’t get sued because of their beliefs, they got sued because they were arrogant about their beliefs.

    @William Wilgus:

    I’m sure that after that initial email exchange, they didn’t actually want that particular photographer to shoot their ceremony. I’m just speculating, but I’d bet that this lawsuit was initiated due to the couple’s surprise that any business would be so open and blatant about such discrimination.

    … at least that’s how I’d be. I’m a fairly tolerant, “live and live” type of person, who tends to just blow off a lot of stuff that others might get exercised about. But if someone is obviously wrong, and they’re being an ass about it, I’d probably be forced to take some sort of action too.

    Like or Dislike: Thumb up 4 Thumb down 2

  68. James in Silverdale, WA says:

    @Pharoah Narim: In 1998, Matthew Shepard was beaten and left to die in Wyoming. 1998. Not 1968. Not 1938. In 2013, gay lashings happen in practically every major city on the weekends. You just don’t hear about up there in the ivory tower because most do not report it for a variety of reasons, mostly so they do not have to listen to any more of your baseless insults.

    When you receive messages from society that you are diseased from birth, and you know you are no such thing, whether you are black or gay really makes no difference whatsoever.

    Like or Dislike: Thumb up 5 Thumb down 6

  69. anjin-San says:

    @ jenos

    I’m curious, tell me more about the oppression that Christians face. My wife is a practicing Christian, as is my mother in law. They attend church regularly. No intolerance or discrimination going on around here. Keep in mind I live in a very liberal area. Why are liberel jackboots not crushing the faith of my wife and her fellow churchgoers?

    Can you provide some examples of all this oppression of Christians?

    Like or Dislike: Thumb up 8 Thumb down 3

  70. James in Silverdale, WA says:

    @Raider: What an ugly mythology you hold. Good luck with that.

    Like or Dislike: Thumb up 5 Thumb down 4

  71. wr says:

    @bill: “send a hotel a message saying you wish to book a block of rooms for a KKK rally or something controversial- see what excuse they use to not do business with you. chances are they won’t acknowledge that groups “views” as part of their reason to decline your request, they’ll say they have no rooms available or something.”

    Personally I see more than a little distinction between refusing to rent a room to someone because of religion or skin color and refusing to rent to a terrorist organization. Don’t you?

    Like or Dislike: Thumb up 8 Thumb down 2

  72. Mikey says:

    @anjin-San: I think it was Jon Stewart who said “you’re confusing ‘war on Christianity’ with not getting everything you want.”

    Another interesting aspect of this is how many Christians complain gays want “special rights,” when in fact it’s the Christians themselves who want a “special right” to avoid obeying anti-discrimination laws.

    Like or Dislike: Thumb up 4 Thumb down 5

  73. michael reynolds says:

    @wr:

    “Hi, I’d like to book a block of six rooms. The name is Ayman Al-Zawahiri. Can you charge it to my Al Qaeda American Express card?”

    Like or Dislike: Thumb up 2 Thumb down 1

  74. mtnrunner2 says:

    Private property does not become “collective” property simply because someone goes into business and admits “the public” into their establishment. That’s just a pathetic neo-Marxist rationalization for allowing the government to coerce people and to violate their individual rights.

    Businesses should be allowed to accept/refuse whatever customer they choose, period. Otherwise, they don’t really own their property (which unfortunately is now the case in the US). If people don’t like it, they can go somewhere else or move.

    Incidentally, the primary problem with discrimination during the Civil Rights era — in my opinion — was the fact that government was not protecting people from physical violence and was not giving equal due process. That is a real problem that should have brought the federal government in like a ton of bricks, and thankfully, eventually it did.

    Like or Dislike: Thumb up 5 Thumb down 5

  75. carpeicthus says:

    I don’t buy the “but it’s art” angle either, and I’m one of the top wedding photographers in the country. Art happens in the margins; in its structure it’s primarily a service.

    Like or Dislike: Thumb up 1 Thumb down 1

  76. Pharoah Narim says:

    @James in Silverdale, WA: First, freedom to life is not a first- world problem so your example is beyond the scope of my comments. Second, the terrible ordeal that young man experienced isn’t even in the same universe as a wedding photographer refusing to shoot a gay wedding. Do homosexuals have challenges? Of course, there’s no question about that. But have you ever seen a slave quarters? Ever been inside a civil rights era sharecroppers “house”? Tell me…have you held a lynching postcard? Try interviewing someone old enough to have drank from the “blacks only” water fountains…you might discover interesting tidbits about daily life like Coca-Cola in rural areas only being for white people. No one should be comparing their challenges to the human rights struggle of African-Americans or Native Americans because none can compare. A complete castration and devaluation of a people enshrined and backed by the law.

    There will always be people that don’t accept you or something about you. It important to make a value judgement about how important that is in the big scheme and act accordingly. Life, physical well being, employment….. let’s nail people to the wall. People not liking us for who we are… a curt eff you before moving on is probably the best prescription.

    Like or Dislike: Thumb up 4 Thumb down 2

  77. grumpy realist says:

    @mtnrunner2: Dude, you realize you’re going against at least several hundreds of years of Public Accomodation Law? 200 years here and even earlier in Old Merrie England?

    It’s amazing how many so-called Libertarians know absolutely nothing about law or history or society or economics or….

    Like or Dislike: Thumb up 1 Thumb down 3

  78. mantis says:

    @mtnrunner2:

    Businesses should be allowed to accept/refuse whatever customer they choose, period. Otherwise, they don’t really own their property (which unfortunately is now the case in the US). If people don’t like it, they can go somewhere else or move.

    Our society long ago agreed you are wrong. If you don’t like you can move somewhere that sort of thing is OK. Like Russia.

    Like or Dislike: Thumb up 0 Thumb down 4

  79. James in Silverdale, WA says:

    @Pharoah Narim: Tell me…have you…”

    You act like discrimination against gay people started only recently; that it has not been going on for thousands of years; that there is an exclusive pathway to exclusion. You and I could trade “tell me… have you…” stories long into the night, and my realization would be that there has been enough suffering and any oneupsmanship on who had it “worse” is not constructive.

    Nor do I divide human problems into what “world” they inhabit, “First World” etc. This sounds terribly paternalistic, even colonial, and does not match reality.

    When you receive messages you are diseased from birth, and you know you are no such thing, it really does not matter who the speaker is, or what “world” they think your problems come from. The pain of being shut out, often unto death, remains.

    And we seem to slowly be saying “no” to this behavior. Try to embrace that.

    Like or Dislike: Thumb up 1 Thumb down 4

  80. Randy Lee says:

    @Todd:
    There is an assumption that a business is open to the public unless the words ‘PRIVATE ESTABLISHMENT’ are also included with the words ‘WE RESERVE THE RIGHT TO REFUSE SERVICE’. Such a notice must be conspicously placed.

    And since it is a private establishment the owners’s reasons for refusal are also private, unless he chooses to make them known. If so, he is at liberty under such circumstances.

    There is no prohibition against the exercise of private business between two persons who consent.

    Like or Dislike: Thumb up 1 Thumb down 0

  81. Chris says:

    @gVOR08: @gVOR08: Where is the compromise from the gay activists? This case and all like them are not about photography or any other business, they are about forcing people not only to tolerate homosexuality but to embrace it and celebrate it. They won’t stop until they do. Thankfully not all suits are being won by the gay activists, but I fear it is just a matter of time.

    Like or Dislike: Thumb up 15 Thumb down 1