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Supreme Court Declines Case Of Photographer Who Refused Service To Gay Couple

Supreme Court Justices 2

Today the Supreme Court announced that it had declined to hear the appeal of an Albuquerque, New Mexico wedding photography studio which had refused to provide services to a same-sex couple that attempted to hire them for a wedding ceremony and reception:

The Supreme Court declined on Monday to consider whether a New Mexico photographer had a free-speech right to refuse service to a same-sex couple who wanted her to record their commitment ceremony.

Without comment, the court said it would not review a decision by the New Mexico Supreme Court that the denial of service violated the state’s public accommodations law, which bans discrimination by those offering their services to the public.

The New Mexico decision had prompted some states, such as Arizona, to propose laws that would protect companies and individuals who say providing some services to same-sex couples would violate their religious beliefs.

The case at the court came from Elaine and Jonathan Huguenin, whose company, Elane Photography, refused service for the 2007 commitment ceremony of a lesbian couple, Vanessa Willock and Misti Collinsworth.

The Huguenins said they would “gladly serve gays and lesbians” by taking portraits. But photographing same-sex marriages or commitment ceremonies would “require them to create expression conveying messages that conflict with their religious beliefs,” according to their petition to the court.

The state human rights commission found that the Huguenins violated the New Mexico Human Rights Act, and the state supreme court unanimously upheld the decision.

“When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races,” the court said.

In their petition, the Huguenins and lawyer Jordan W. Lorence of the Alliance Defending Freedom mentioned religion frequently. But their plea did not cite constitutional protection of their right to freely exercise their religion. Instead, they rely on another part of the First Amendment: their right to free speech.

Elaine Huguenin’s work is artistic expression, the petition said, and she cannot be forced to “communicate messages antithethical to her religious beliefs . . . through government coercion.”

As I’ve noted in the past, trying to guess why the Supreme Court decided not to take a case is an exercise fraught with the probability of error. At the most, all we can really say here is that there were not four Justices who voted in favor of accepting the case since that is all that is required for the Court to grant a Writ of Certiorari. What those reasons might have been is something that, in the end, only the Justices themselves could tell us, and they most likely never will. The most common conclusion people reach is that one side or the other of the Court’s ideological balance did not want to take the case for fear that they’ d be on the losing side, while the other side was not sufficiently motivated to accept the case for one reason or another. More often than not, though, there is often some much more esoteric or technical reason for the denial of an appeal, especially in a case that at least at a glance seems like it has the potential to be a high profile case. There may be something about the procedural posture of the case that makes ruling upon it problematic from the Court’s point of view, or perhaps something in the record of the case that leads to the same conclusion. In this particular case, the fact that the underlying ruling being appealed, from the New Mexico Supreme Court, is based almost entirely on state rather than Federal law. While the appeal does raise issues of Federal law, it may be the case that the Justices decided that it was better to defer to the state courts in this particular case.

Whatever the reason for the denial may be, it seems fairly clear that this is an issue that the Court will have to deal with at some point in the future. With same-sex marriage quickly becoming  the law of the land, there are liable to be additional legal clashes like the one in New Mexico coming in the future. We’ve already seen some of it this year with efforts in Arizona and Mississippi to give businesses broader protections for religious objections to state discrimination laws and that’s likely to be only the beginning. It’s important to note, however, that the New Mexico case was not strictly about religious beliefs, at least not by the time it got to the Supreme Court. Instead, the appeal to the nation’s highest court had adopted the freedom of speech arguments made by two proponents of same-sex marriage in a “friend of the court” brief filed in the New Mexico Supreme Court last year:

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.

The problem that the appellants faced in this particular case, of course, is that the Freedom of Speech issue wasn’t fully litigated in the courts below, and that is likely the reason the the Supreme Court declined the appeal in the end. At some point, however, the Court will have to rule on this issue and it strikes me that it makes as little sense to say that a photographer is required to take photographs they’d rather not take as it does to say that a painter should be required to paint a portrait they don’t want to paint.

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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. C. Clavin says:

    Another bigot is a victim.

    Like or Dislike: Thumb up 7 Thumb down 3

  2. So you think artists should be forced to create art?

    And, yes, photography is an art.

    Poorly-rated. Helpful or Unhelpful: Thumb up 5 Thumb down 20

  3. Mu says:

    I don’t get it. Shopkeepers, innkeepers, mechanics etc are not allowed to discriminate, but “artists” are? Either you’re offering services to the public, and can’t discriminate, or you don’t.
    BTW can churches still legally discriminate for race etc?

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 1

  4. C. Clavin says:

    It seems to me that, were I in this photographers place, I would have said I was busy or sick or my camera was broken or whatever. But to explicitly make it about sexual orientation and religious hoo-haw was just stupid. That’s tantamount to saying you aren’t going to serve colored people at the lunch counter. Isn’t cooking an art? This guy was looking for a fight…he got one…and he lost. Schmuck.

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

  5. mantis says:

    So is the guy who painted my house an artist? He’s working with paint!

    Like or Dislike: Thumb up 14 Thumb down 4

  6. Dave Schuler says:

    The law governing public accommodations is more complex than the comments above might lead you to conclude. The common law is that, for example, restaurants are not required to provide service to everyone.

    What that means is that, unless specifically overridden by state or federal law and/or previous court decision, the common law would prevail. Shorter: it depends on the state.

    Race and gender are protected classes under the Constitution. What we’re working out in law now is whether sexual orientation is similarly protected. That appears to be the direction in which we’re heading but it hasn’t been fully litigated yet.

    Like or Dislike: Thumb up 7 Thumb down 0

  7. grumpy realist says:

    I think what they’re leery of is the slippery slope problem. If photography of a wedding is art, then what about cooking? Does a chef get to refuse to cater for a gay wedding, or a Jewish wedding? “After all”, he can argue, “I’m not discriminating against Jews–I just don’t want to cater the reception of two people who have had a Jewish wedding. If they had had a non-denominational wedding I would be perfectly happy. And besides, it’s my First Amendment right.” What about other one-on-one services like a hairdresser? After all, Vidal Sassoon was an artist, correct?

    Highly-rated. Helpful or Unhelpful: Thumb up 15 Thumb down 0

  8. @Mu:

    Shopkeepers, innkeepers, mechanics etc are not allowed to discriminate, but “artists” are?

    If a theater is casting Romeo and Juliet, should they be required to consider male actors for the role of Juliet?

    Like or Dislike: Thumb up 9 Thumb down 1

  9. anjin-san says:

    @ Doug

    So you think artists should be forced to create art?

    A chef could say the same thing, followed by “My art is not for n**ers”

    I have no desire to go back to Jim Crow, in any form.

    Like or Dislike: Thumb up 15 Thumb down 3

  10. Mike Adamson says:

    @Doug Mataconis: If the photographer solicits commissions from the public in a typically commercial manner then I don’t believe he/she has the right to discriminate.

    Like or Dislike: Thumb up 14 Thumb down 0

  11. C. Clavin says:

    @Doug Mataconis:
    I suppose my answer is that it stops being an art when it is a service for which you are hired. Sure it’s still art per se…but it’s not like Ansel Adams out taking photos and hoping to sell them to someone someday…on spec if you will.
    This guy hung out a shingle and said come hire me…but wait…not you…’cause I don’t like gay people.

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 1

  12. James says:

    @Stormy Dragon: Actually, you can discriminate in such ways as a “bona fide” job requirement, in this case the play calls for a female actress. I remember a similar case along these lines where a woman was rejected for an anchor role because she was a woman and she lost in court because they station said that the anchor role was not a reporter but just someone who read the news and that they employed based on things like voice appearance and gender balance between the anchors.

    Like or Dislike: Thumb up 2 Thumb down 0

  13. @James:

    Well obviously this photographer was merely discriminating based on gender balance in the wedding party, then.

    Like or Dislike: Thumb up 5 Thumb down 0

  14. Mu says:

    @Stormy Dragon: There have always been exceptions for certain public facing positions, and your Romeo&Juliet producer is probably hiring males for other roles, so he’s not discriminating against males per se by proscribing a specific gender for a specific role.

    Like or Dislike: Thumb up 1 Thumb down 0

  15. James says:

    @Stormy Dragon: I addressed your comment directly. But if you want to change the subject… My opinion, as a photographer, is that photography is art, wedding photography is not. Much like writing is art, writing tech manuals or press releases is not, or painting is art, but painting houses is not. It’s no different than a pharmacist, whose whole job is to hand out pills, saying that they don’t want to hand out pills that violate their beliefs.

    Do your job or don’t do your job. Don’t bitch about the parts you don’t like because everyone else has those too

    Like or Dislike: Thumb up 13 Thumb down 0

  16. legion says:

    Frankly, I’m kinda surprised by this. As I understand it, at the time of the incident LGBT people were explicitly not covered by state discrimination laws, so statements like

    “When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races,” the court said.

    Would seem to be meaningless. Am I missing something?

    Like or Dislike: Thumb up 0 Thumb down 0

  17. grumpy realist says:

    @legion: No, supposedly they were. It’s just that SSM is still not legal in NM.

    The other wrinkle is that this went up to the state Supreme Court and was decided there, based on state law.

    The First Amendment argument was always a Hail Mary pass.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. @James:

    I addressed your comment directly.

    While completely missing the point of it, which was refuting Mu’s suggestion that “artistic” businesses be treated identical to non-artistic businesses.

    Like or Dislike: Thumb up 0 Thumb down 0

  19. grewgills says:

    @Doug Mataconis:
    Photography is an art, or can be. Wedding photography not so much.

    Like or Dislike: Thumb up 9 Thumb down 0

  20. edmondo says:

    So now a gay couple can hire a photographer who will knowingly do a bad job commemorating what should be one of the happiest days of their lives. And they won how?

    Like or Dislike: Thumb up 7 Thumb down 7

  21. grewgills says:

    @Stormy Dragon:

    If a theater is casting Romeo and Juliet, should they be required to consider male actors for the role of Juliet?

    If they are doing historically accurate casting then they should.

    Like or Dislike: Thumb up 8 Thumb down 0

  22. PD Shaw says:

    According to the New Mexico Supreme Court, there was no abridgment of the First Amendment because the photographer remained free to express his/her disapproval of same-sex relationships, he just couldn’t refuse to provide photographic services.

    Like or Dislike: Thumb up 10 Thumb down 0

  23. mantis says:

    @James:

    Much like writing is art, writing tech manuals or press releases is not

    Indeed. What I write for myself (and sometimes others, if it gets published) is artistic expression. What I write for my job (including press releases and tech manuals) is definitely not.

    It’s not the medium that makes it art. It’s the context and intent.

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 1

  24. @mantis:

    How about a scriptwriter for a TV show? Are they writing for artistic expression or for their job?

    Like or Dislike: Thumb up 1 Thumb down 0

  25. mantis says:

    @Stormy Dragon:

    Well, we’re getting way into hypothetical that would not be affected by public accommodation statutes, but I would be inclined to think the latter. Screenwriters are hired to do a job. While doing so well certainly takes skill and creativity, and sometimes even some level of inspiration (for some shows more than others), they are still pens for hire doing work as instructed by an employer. They are exercising a skilled trade, IMO, rather than expressing an artistic vision.

    I would also say that a screenwriter who insists on his/her artistic integrity that contradicts the wishes of the producers is an unemployed screenwriter.

    I say all of this with the caveat that art is in the eye if the beholder. Who am I to decide what is art? I’m just a bug.

    Like or Dislike: Thumb up 12 Thumb down 1

  26. Ben says:

    @Stormy Dragon:

    Let me put it this way. I have a dayjob in the tech industry, and I moonlight as a musician. If the music I’m playing is something I wrote, that’s art. If I’m taking requests from the crowd for cover tunes, that isn’t art. And if I am doing session work and I am asked to play a specific, already-written piece of music for a recording, that isn’t art either.

    Like or Dislike: Thumb up 5 Thumb down 0

  27. grumpy realist says:

    @Ben: But your cover tunes are in fact, copyrightable….there’s sufficient “artistic merit” for them to qualify. So I could argue that those ARE “art”.

    …you can see why SCOTUS didn’t want to open this bag of worms…

    Like or Dislike: Thumb up 2 Thumb down 0

  28. @mantis:
    @Ben:

    So could the actresses playing prostitutes on Game of Thrones sue the screenplay writers for sexual harrassment based on being sent scripts requiring them to disrobe and simulate sexual acts?

    Can the screenwriters be sued for not writing more minority characters into their scripts?

    Like or Dislike: Thumb up 1 Thumb down 4

  29. Tyrell says:

    @Mu: I know a hotel owner who does not allow motorcycle clubs, graduation parties, and alcoholic beverages. Is that discrimination ?
    How about a soloist or church organist ? Can they choose the events they will perform at ?

    Like or Dislike: Thumb up 0 Thumb down 5

  30. mantis says:

    @Stormy Dragon:

    I know of no statutes that would justify such lawsuits.

    Like or Dislike: Thumb up 0 Thumb down 1

  31. wr says:

    @Stormy Dragon: “How about a scriptwriter for a TV show? Are they writing for artistic expression or for their job?”

    As a longtime scriptwriter for TV shows and as a producer who has hired and fire writers I can say that while artistic expression is required of the job, they are their to execute the vision of the showrunner. If their artistic vision conflicts with the showrunner’s, they can’t sue — they’re fired.

    Like or Dislike: Thumb up 7 Thumb down 1

  32. @mantis:

    Yes, because artistic productions are exempted from complying with a lot of the laws that normal commercial businesses must comply with. And that includes people like TV screenwriters and session musicians that you want to hand wave as “merely” doing a job. Your proposed definition of what constitutes art would eliminate a lot of those protections.

    Like or Dislike: Thumb up 0 Thumb down 2

  33. wr says:

    @Stormy Dragon: “So could the actresses playing prostitutes on Game of Thrones sue the screenplay writers for sexual harrassment based on being sent scripts requiring them to disrobe and simulate sexual acts?”

    No. And you can bet that the contracts they signed include specific language about the kinds of nude scenes they will be required to perform.

    “Can the screenwriters be sued for not writing more minority characters into their scripts?”

    Sued by whom? Who would have standing? Actors? The audience?

    Like or Dislike: Thumb up 6 Thumb down 1

  34. C. Clavin says:

    @Tyrell:
    No shoes no shirt no service.
    Next question.

    Like or Dislike: Thumb up 4 Thumb down 1

  35. Mikey says:

    Wedding photography isn’t art. It’s a trade conducted as a business that’s open to the public. If a photographer doesn’t want to photograph icky gay couples, that photographer can close up shop and go play like they’re Ansel Adams.

    Like or Dislike: Thumb up 12 Thumb down 1

  36. Tyrell says:

    @PD Shaw: A wedding photographer is an integral, important of the wedding, the ceremony, and all activities. Next to the wedding director the photographer is the most important factor. The work they do at a wedding is something that will live on for decades. The relationship between the photographer and the wedding party is a very close one. With that in mind, I would not want a photographer doing my wedding if I had the slightest doubt about their total support, dedication, and loyalty. A wedding is more performance and opera then religious ceremony.
    Also is the factor of the church. Most churches have policies concerning marriages and weddings.
    The church board and pastor must approve, usually after the pastor has counseled the couple for a length of time. Approval is not always a sure thing. There are many and varying reasons that a marriage request could be disapproved, including religious beliefs and church association of one of the persons. In most churches, the church organist, choir director, soloists, acolytes, and others must be given first refusal and then someone else can take their place. One rule our church has is no photography during the service and absolutely no alcoholic drinks served during rehearsal dinners or receptions, or anywhere on church grounds, unless it is part of a communion service.
    And so the church is on firm legal ground in controlling what happens or doesn’t happen on church property.

    Like or Dislike: Thumb up 1 Thumb down 7

  37. Ben says:

    @grumpy realist:

    But your cover tunes are in fact, copyrightable….there’s sufficient “artistic merit” for them to qualify. So I could argue that those ARE “art”.

    …you can see why SCOTUS didn’t want to open this bag of worms…

    Actually, not necessarily. SOME cover tunes are copyrightable, but not all are. To quote from copyright.gov:

    “To be copyrightable, a derivative work must incorporate some or all of a
    preexisting “work” and add new original copyrightable authorship to that work.”

    If my cover tunes are identical to the original with no adaptation or changes in arrangement, they are probably NOT copyrightable. And honestly, they’re usually not, because usually people in a bar just want to hear the damned song, not my reinterpretation of it. At least from my experience.

    Like or Dislike: Thumb up 2 Thumb down 0

  38. legion says:

    @wr:

    No. And you can bet that the contracts they signed include specific language about the kinds of nude scenes they will be required to perform.

    Agreed – like the writers who get fired if they don’t write to the showrunner’s spec, the actresses are contracted for specific purposes.

    Sued by whom? Who would have standing? Actors? The audience?

    Presumably, the other actors who _didn’t_ get parts. But I suspect that would fall under the heading of the showrunner’s artistic license in what he or she creates…

    Like or Dislike: Thumb up 2 Thumb down 0

  39. mantis says:

    @Stormy Dragon:

    Yes, because artistic productions are exempted from complying with a lot of the laws that normal commercial businesses must comply with.

    No, because the performers are hired to do the work described. It’s not harassment when it’s in the job description. I can hire people to walk around my apartment nude. It’s not harassment, and it’s probably not art.

    And that includes people like TV screenwriters and session musicians that you want to hand wave as “merely” doing a job.

    I didn’t write “merely,” which your use of quotes would dishonestly imply. They are doing jobs though, as I did say.

    Your proposed definition of what constitutes art would eliminate a lot of those protections.

    I didn’t realize I had proposed a definition. I do recall pointing to the difficulty of defining art generally, much less by a mantis.

    Like or Dislike: Thumb up 8 Thumb down 1

  40. C. Clavin says:

    @Tyrell:
    Sounds like a very nice cult.

    Like or Dislike: Thumb up 0 Thumb down 1

  41. James says:

    @Stormy Dragon: No, I understood your point. I simply pointed out how your “point” was flawed and therefore your conclusion was without merit.

    Like or Dislike: Thumb up 6 Thumb down 1

  42. Hal_10000 says:

    I principle, I think private businesses have the right to do business with whom they want (business that deal with the public sector are another story). However, reality often trumps that principle. For example, in the case of Jim Crowe, there as an obvious need to over-ride that ideal. The edifice of racial discrimination was so massive and oppressive and had been supported by law for so long that it was absurd to expect blacks to wait until “market forces” brought it down. That was a rare instance for private behavior was correctly over-ridden by public need.

    Going into the future, however, I think these cases should only be brought when the discrimination is a burden. For example, if there are twenty wedding photographers who will happily do a gay wedding, the law should not force the 21st to do one too. However, if there is one hospital in town, it can’t turn away gay people because it doesn’t like them.

    (I still oppose laws like the one Kansas proposed. Because while I feel private businesses should be able to do business with whom they want, I oppose giving a very specific form of discrimination the explicit endorsement of law.)

    This view is based on the discrimination I saw first hand when I was growing up. There were caterers who would not do Jewish events. There were places that would not host them. They wouldn’t come out and say it explicitly; they would just suddenly tell you they were already booked. Fortunately, this was in Atlanta so there were always options and a sector existed specifically for Jewish events. I don’t think that situation would have been improved by the intercession of the law.

    Like or Dislike: Thumb up 4 Thumb down 1

  43. Mu says:

    @Tyrell: At issue is not the right to refuse service – at issue is the right to refuse service based on discrimination. All the photographer had to do is say “sorry, I have a better deal going that weekend” and she would have been fine. Same way the innkeeper can say “sorry, full” to a black jewish unmarried couple with 5 children from China. He can’t say “sorry, I don’t take Chinese so”.

    Like or Dislike: Thumb up 3 Thumb down 0

  44. Tillman says:

    The final conclusion of this thread – Wedding Photography: There’s an art to it, but it ain’t Art.

    Like or Dislike: Thumb up 3 Thumb down 0

  45. KM says:

    @Tyrell;

    A wedding photographer is an integral, important of the wedding, the ceremony, and all activities. Next to the wedding director the photographer is the most important factor.

    Ah, no. The people get married are the most important factor. Period. This is their day and they are paying people to make that day great. You can have a wedding without pictures – it’s been happening for centuries! Everything else is just trim, not substance.

    What strikes me is the sheer arrogance of this defense. They’re a photographer- literally, the hired help. They are not a part of the ceremony in any legal or meaningful fashion. They just stand around and document it. You are not part of the wedding party, do not get to sit at the high table or with the families, don’t get to ride in the limo. You’re working the whole time, not celebrating. How full of yourself do you have to be to watch two people be joined in wedded bliss and think you and your little camera are an important and deciding factor?! How arrogant to assume snapping an artistic still shot of a celebration has any sort of religious overtone or connotation for you and not them on the happiest day of their life (so far)?

    To the photographer and the cake dude – get over yourself and do the job you were advertised to do. This is not about you!

    Like or Dislike: Thumb up 12 Thumb down 0

  46. MarkedMan says:

    The Kansas laws and other similar laws may have a problem that I’ve rarely seen mentioned. Say i have a business selling sandwiches and have three employees. I would like to hang out a shingle that says “We welcome our LGBT customers” and let the market decide. But I can’t. Because if I understand the Kansas law and the other similar ones correctly, if one of my employees says “No, I hate F*gs and I won’t serve them” then they are free to refuse service to anyone that admits they are other than straight. If they were to ask everyone who walks in the door “Are you other than straight? Because if so, I can’t serve you” could i do anything about it? Given that I’ve only got three employees and it’s a sandwich shop and assuming multiple shifts, I really need them making sandwiches and serving customers. Bottom line question: Under those laws are businesses forced to sink to the level of the most bigoted employee?

    Like or Dislike: Thumb up 3 Thumb down 0

  47. wr says:

    @KM: “The people get married are the most important factor”

    According to many on the right, the ONLY important factor are the unconceived children that might someday be conceived and then born, at which point they no longer matter.

    Like or Dislike: Thumb up 5 Thumb down 1

  48. wr says:

    @Tyrell: ” One rule our church has is… absolutely no alcoholic drinks served during rehearsal dinners or receptions, ”

    And there are those who say we shouldn’t make fun of religion!

    Like or Dislike: Thumb up 7 Thumb down 1

  49. James Joyner says:

    @Dave Schuler: Quite right. But several states, including New Mexico (via the New Mexico Human Rights Act) do in fact treat sexual orientation as a protected class. The suit was based on the NMHRA and SCOTUS let stand the decision of the New Mexico Supreme Court.

    @Stormy Dragon: Racial and gender discrimination are allowed on a rational basis.

    Like or Dislike: Thumb up 3 Thumb down 0

  50. C. Clavin says:

    @Tillman:
    I couldn’t figure out how to say that…perfect.

    Like or Dislike: Thumb up 1 Thumb down 0

  51. Jack says:

    One of the definitions of slave is, a person held in servitude, compelled to provide service to another. Elane Huguenin, was arraigned before that state’s “human rights” soviet for politely declining to provide her services to a lesbian couple planning a “commitment ceremony”. In declining the couple’s business, Elane Huguenin did not injure or defraud anybody. The same is true of Antonio Darden, a gay hairdresser from Santa Fe who earned nation-wide publicity a couple of years ago when he announced that he would not accept business from New Mexico Governor Susana Martinez because she is an opponent of same-sex marriage. The difference? Darden belongs to a “specially protected” class.

    No one has a right to obtain goods and services from a public accommodation. To think otherwise assumes that business owners like Huguenin have a duty to provide such services – and no right to decline participation in that transaction. In other words, involuntary servitude – despite being explicitly banned by the 13th Amendment – is justified in the service of “anti-discrimination” policy.

    Paraphrased from an article by William Norman Grigg

    Like or Dislike: Thumb up 2 Thumb down 8

  52. grumpy realist says:

    @Jack: Well, then, you must be in favor of abortion. I can’t think of anything more slave-like that being linked up to another organism via your bloodstream and being forced to provide all of its nutrients and protection for 9 months.

    If you want to be able to pick and chose with your services, don’t hold yourself out as a public services provider. End of story.

    (Sheesh, doesn’t ANYONE understand law around here?!)

    Like or Dislike: Thumb up 6 Thumb down 1

  53. C. Clavin says:

    @Jack:
    Seriously…you come in here posting opinions from a friggin’ John Bircher? And you expect to be taken seriously?

    In declining the couple’s business, Elane Huguenin did not injure or defraud anybody.

    Sure they were injured…they were discriminated against because of their sexual orientation.
    As a lottery winner…a straight white man born in America…I can see where you might not be capable of understanding what that means.
    Buy a dog. Name it “Clue”. Then you will have one.

    Like or Dislike: Thumb up 7 Thumb down 2

  54. grumpy realist says:

    @Tyrell: None of the groups you have mentioned (motorcycle clubs, people who graduate, people who drink) are a protected class.

    It’s really not rocket science, guys.

    Like or Dislike: Thumb up 7 Thumb down 0

  55. grumpy realist says:

    @Ben: Nope, nope, nope. That loophole is simply saying if you do everything EXACTLY the same you don’t get a new copyright. (I think they tweaked previous regs to deal with electronic music and stuff done through synthesizer.) If you are a vocalist and sing a song, your performance of that song *is* your own work/interpretation and yes indeedy you have copyright over it.

    You probably need to get permission to perform the song because the *original* copyright holder probably still has rights (thank you, Mickey Mouse) over the song, but that’s a different issue.

    Like or Dislike: Thumb up 3 Thumb down 0

  56. grumpy realist says:

    @Ben: P.S. what the copyright office is doing there is giving a definition for *derivative work*. Covers of songs are handled under a different clause and fall in a different category. They bloody well are copyrightable.

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  57. Jack says:

    @C. Clavin: Awww cupcake, aren’t you cute. If you so veahamently disagreed you could have made your case. But instead you resort to belittling. NO ONE was harmed. They went to a different photographer and got their photos. I no more want to be endentured to a client than I want to be endentured to a welfare mom.

    But instead of reasonable discourse, you spew vomit all over the internet. Begone!

    Like or Dislike: Thumb up 1 Thumb down 11

  58. C. Clavin says:

    @Jack:
    Right…and when colored folks were turned away from lunch counters they could simply go eat somewhere else. So what’s the problem, eh? Remarkable.

    Like or Dislike: Thumb up 10 Thumb down 1

  59. Barry says:

    @Doug Mataconis: “And, yes, photography is an art. ”

    And a business, and certain rules apply.

    Like or Dislike: Thumb up 6 Thumb down 0

  60. Barry says:

    @C. Clavin: “It seems to me that, were I in this photographers place, I would have said I was busy or sick or my camera was broken or whatever. But to explicitly make it about sexual orientation and religious hoo-haw was just stupid. ”

    Their whole point was not just to refuse service, but to rub it in their faces.

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  61. KM says:

    @Jack:

    I no more want to be endentured to a client

    Whatever happened to “The Customer is Always Right”? Was customer service lost in the Me-Me-Me ethic that’s taking been over business in pursuit of the Almighty Dollar? Don’t like it, get another job hippie! What applies to them applies to you – walk on and start anew somewhere else.

    No – you are indentured to money, sir. If you weren’t, you wouldn’t put yourself out where you could associate/work/do business with sinners & socially and religiously undesirable people. I guarantee that you have in your life and will for the rest of your career. Again, don’t like, go some else right? There’s a reason monks locked themselves away from the world, you know….

    Like or Dislike: Thumb up 7 Thumb down 0

  62. Barry says:

    @Tyrell: “Also is the factor of the church. Most churches have policies concerning marriages and weddings.
    The church board and pastor must approve, usually after the pastor has counseled the couple for a length of time. Approval is not always a sure thing. ”

    I’m trying to figure out your statement here. Do you understand that churches have rather broad protections and freedoms here?

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  63. Tillman says:

    @KM:

    What strikes me is the sheer arrogance of this defense. They’re a photographer- literally, the hired help. They are not a part of the ceremony in any legal or meaningful fashion. They just stand around and document it.

    I’ve been to at least two weddings where there was a table full of disposable cameras, with a letter from the bride and groom saying to document the wedding as you see it, turn in the camera, and we’ll make a scrapbook out of the photos. You’d also get a copy of the photos you took and the scrapbook if you wanted.

    Wedding photographers are like prom photographers: weirdly considered part of the ritual, but ancillary.

    Like or Dislike: Thumb up 5 Thumb down 0

  64. Al says:

    Stan Kelly recently said much the same thing albeit a bit more succinctly.

    Like or Dislike: Thumb up 0 Thumb down 0

  65. Tillman says:

    @wr:

    And there are those who say we shouldn’t make fun of religion!

    I’m sorry. Any Christian denomination without alcohol is pretty much asking for ridicule. Why else do you think our “Christian” nation was so leery about a Mormon president?

    No alcohol at a reception, are you nuts? Maybe it’s more a Southern thing than a wedding thing, but I’ve always understood that the groom covers an open bar. No alcohol at a rehearsal dinner? Okay, sure, but consider removing the stick up your butt before your nuptials.

    Like or Dislike: Thumb up 2 Thumb down 0

  66. anjin-san says:

    @ edmondo

    So now a gay couple can hire a photographer who will knowingly do a bad job commemorating what should be one of the happiest days of their lives.

    Are you saying that homophobes have so little respect for work and are so unprofessional that they will deliberately tank a job just because they don’t approve of the customer? I guess that gives us some useful insight into the mind of a bigot.

    Part of being a professional is a commitment to doing quality work even under adverse circumstances.

    Like or Dislike: Thumb up 11 Thumb down 1

  67. anjin-san says:

    @ Jack

    NO ONE was harmed

    Really? Imagine yourself to be the proud father of a blushing bride to be. Your little girl is the apple of your eye.

    She spends hours on the internet looking for a wedding photographer, and finds one who’s work she absolutely adores. She heads down to the studio to make arrangements to have the most important day of her life photographed by this wonderful photographer.

    When she arrives at the studio, she is told “run along, we don’t deal with your kind”

    How do you think she feels? Is the thrill of her impending wedding quite as sweet? How do you feel? If you are any kind of father I think we know exactly how you feel.

    Like or Dislike: Thumb up 7 Thumb down 1

  68. C. Clavin says:

    @anjin-san:

    Part of being a professional is a commitment to doing quality work even under adverse circumstances.

    Reminds me of a story….
    When I was in undergrad I studied photography with the intent of becoming a photojournalist…which I did. But I loathed the thought of shooting weddings or studio portraits.
    This woman I knew wanted a portrait for her boyfriend’s x-mas gift. I must have told her no 20 times…and even recommended others who would have done it gladly…but still she insisted. Finally…terribly annoyed…I gave in. I made that poor woman look so terrible she probably didn’t even recognize herself. She never asked again.
    I was a very successful news photographer…before returning to school and changing careers…but never shot another studio portrait…or a wedding.

    Like or Dislike: Thumb up 0 Thumb down 1

  69. Matt Bernius says:

    @Tillman:

    I’ve been to at least two weddings where there was a table full of disposable cameras, with a letter from the bride and groom saying to document the wedding as you see it, turn in the camera, and we’ll make a scrapbook out of the photos. You’d also get a copy of the photos you took and the scrapbook if you wanted.

    We did that as well at our wedding.

    Not for nothing, the Pro Shots were all much better.

    Like or Dislike: Thumb up 5 Thumb down 0

  70. dazedandconfused says:

    The limiting of open expressions of bigotry and racism is part of the price we pay for being a nation with such a deeply racist and ugly past. The steps taken to unwind that mess in as peaceful a manner as humanly possible are now part of our heritage. Part of our tradition. Laws respect traditions. I believe John Roberts commented the traditions didn’t even have to make sense in the Hobby Lobby orals.

    No one can be forced to take pictures of a wedding, they simply have to refrain from expressing their hatreds and prejudices when refusing the job. None of our rights are absolute.

    Like or Dislike: Thumb up 2 Thumb down 0

  71. Tyrell says:

    @Tillman: It is common practice in the churches around here. But our county is “dry” anyway and has been that way as long as I have been here. Anyone who wants an alcoholic drink has a fifteen minute drive to the next county. So churches wouldn’t be able to allow it anyway.

    Like or Dislike: Thumb up 0 Thumb down 0

  72. Tillman says:

    @Tyrell: Ah, that makes sense.

    @Matt Bernius: There’s an art to it, but it ain’t Art.

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  73. anjin-san says:

    @ Jack

    Awww cupcake

    Some folks here are not old enough to remember when “fag” “homo” and “faggot” were commonly heard putdowns between guys. “Cupcake” was kind of a chickenshit way of calling a guy a fag, because, well, some guys would pop you in the mouth if you called them a fag.

    You have been using “cupcake” a lot, which leads me to believe you are a homophobe. Homophobes tend to be:

    A. Latent, filled with self-loathing
    B. Straight, but filled with deep doubts about their masculinity
    C. Natural born assholes

    So, which one are you?

    Like or Dislike: Thumb up 5 Thumb down 2

  74. wr says:

    @Tillman: We may have different views on religion itself, but it’s nice to see we agree on the important things!

    Like or Dislike: Thumb up 1 Thumb down 1

  75. Tyrell says:

    @anjin-san: I don’t know about that. My experience is that “cupcake” is what we would say to a pretty girl, girlfriend, or wife. Never heard it used in a derogatory manner. From what I have seen, it is always taken as a compliment, in the same was as “honey”, “baby doll”, and “sugar”. Around here girls eat that stuff up.

    Like or Dislike: Thumb up 2 Thumb down 1

  76. beth says:

    @Tyrell: “Girls” being the operative word I suppose. I can’t imagine any woman over the age of 12 eating that up. Usually we roll our eyes and mutter “a**hole”.

    Like or Dislike: Thumb up 4 Thumb down 0

  77. anjin-san says:

    @ Tyrell

    I can’t imagine calling a grown woman “cupcake” (or a girl, for that matter)

    At any rate, Jake is employing this when addressing men, so even if you are right, what does that tell you?

    Like or Dislike: Thumb up 2 Thumb down 1

  78. Tyrell says:

    “Cupcake”, “shortcake”, “baby cakes” are commonly used among couples, even those married for years; around here. It is called romance.

    Like or Dislike: Thumb up 3 Thumb down 2

  79. An Interested Party says:

    It is called romance.

    Ahh, so that’s what Jack was doing? There are far better websites than this one to practice that…

    Like or Dislike: Thumb up 4 Thumb down 1

  80. anjin-san says:

    @ Tyrell

    It is called romance.

    I’ve done ok in the romance department over the years without referring to girls/women by names I reserve for baked goods. Writing original love poems works very well, but if you don’t have any gift for writing, I highly recommend the work of Ono no Komachi and Izumi Shikibu, Japanese court poets in the 9th &11th century respectively.

    Here’s a tidbit:

    My longing for you
    is too strong to bind
    So do not blame me
    when I go to you at night
    on the path of dreams

    I’ve found that great music and gourmet cooking goes a long way as well. But hey, whatever works for you. “Cupcake” just ain’t going to get the job done with the kind of women I like.

    Like or Dislike: Thumb up 1 Thumb down 2

  81. anjin-san says:

    We do owe a great song to those sorts of trivial endearments. Lamont Dozier’s grandfather was something of a ladies man, and he referred to attractive women as either “Sugar Pie” or “Honey Bunch”

    One day, when Dozier was in need of a new song, he thought of his grandfather. The rest is history – Sugar Pie, Honey Bunch

    The great Levi Stubbs, lead singer of The Four Tops, was also Jackie Wilson’s cousin.

    Like or Dislike: Thumb up 2 Thumb down 1

  82. Tillman says:

    @Tyrell: I’ve heard those, yes, but I more often hear “honey” or “babe” used by either gender. It honestly bothers me when a male friend of mine constantly refers to a female friend as “Princess.” I haven’t heard confection- or pastry-based nicknames in a while. It’s probably a generational thing.

    Lately, I’ve also heard “MAN” and “WOMAN” used in the heat of an argument. Here’s an example I think most people are following.

    @anjin-san: Not to belittle the ancient poets, but it’s only by the last line of that tidbit that she’s saved from describing sexual assault.

    Like or Dislike: Thumb up 1 Thumb down 0

  83. grumpy realist says:

    @Tillman: I suspect regional and class play a part as well. Either that, or someone’s been watching a lot of 1930 movies.

    If a guy I didn’t know called me “cupcakes” I’d probably smile back at him and say: “I prefer “Barracuda.”” (One thing Sarah Palin got right.)

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