Thursday, November 21, 2013

Free Speech, Free Association, Photography and Gay Rights

Black people had to battle for more than one hundred years after the end of slavery for among other things, to have the right to sit down in a restaurant owned by whites and order a meal. This segregation was most zealously enforced in the South but was not uncommon in the North as well. Via a series of court decisions, new laws, and public activism, legalized business segregation was defeated though not before its supporters put up massive, oft violent, racist resistance. Now any black person can legally go spend his or her hard earned money with people who despise them but are eager to take their green. This last has never made sense to me. Why would you want to give money to people who don't like you? What are you proving by attempting to purchase goods or services from someone who has made it crystal clear that they don't want your business? The black struggle for civil rights provided the template in part for several other more expansive visions of rights for various other groups. It's important to limit the ability of the state or even of private actors to discriminate. We can't have a fair and open society without such limitations. 

However, there are other rights that are just as important. Or are they? You have a right not to be discriminated against in purchasing a home. But there is no law that prevents your new neighbors from seeing you move in and putting their home up for sale the very next day. You have a right to date or marry whoever you want. But that doesn't mean that a person who doesn't like your kind can be forced to date or marry you. You have a right to seek employment as an actor/actress. But if a film producer is making a historical drama about Dessalines and you happen to look like Brad Pitt, that doesn't mean the producer is wrong for rejecting you. Of course Hollywood probably would make a movie with Pitt playing Dessalines but I think you get my point.

These questions came to mind upon reading the NYT story about a New Mexico photographer who declined to document the commitment ceremony of a lesbian couple. Unsurprisingly the lesbian couple sued and has so far won in court. The photographer has appealed to the Supreme Court.
WASHINGTON — A New Mexico law forbids businesses open to the public to discriminate against gay people. Elaine Huguenin, a photographer, says she has no problem with that — so long as it does not force her to say something she does not believe.
In asking the Supreme Court to hear her challenge to the law, Ms. Huguenin said that she would “gladly serve gays and lesbians — by, for example, providing them with portrait photography,” but that she did not want to tell the stories of same-sex weddings. To make her celebrate something her religion tells her is wrong, she said, would hijack her right to free speech.
So she turned down a request from a lesbian couple, Vanessa Willock and Misti Collinsworth, to document their commitment ceremony. The women, who hired another photographer, filed a discrimination complaint against Ms. Huguenin’s studio, Elane Photography. So far, the studio has lost in the courts.
“This was a straightforward case of discrimination in the public marketplace,” Mr. Wolff said. “No court has ever held that the First Amendment gives businesses a license to sell goods and services to the general public but then reject customers based on race or religion or sexual orientation, in violation of state law.”
The New Mexico Supreme Court agreed, saying Ms. Huguenin’s “services can be regulated, even though those services include artistic and creative work.” Laws banning discrimination, the court said, apply to “creative or expressive professions.”
Jordan W. Lorence, a lawyer at the Alliance Defending Freedom, which represents Elane Photography, said Ms. Huguenin should be able to decline assignments at odds with her beliefs in a way that, say, motels and hardware stores may not. “There are some professions that are inherently expressive — an ad agency, website designer or even a tattoo artist,” he said.
“A tattoo artist should not be forced to put a swastika on an Aryan Nation guy,” Mr. Lorence said. “The government could not force someone to put a bumper sticker on their car that says, ‘I support same-sex marriage’ or ‘I support interracial marriage.’ ”
As the state laws are currently written it would appear that Huguenin would not have much recourse. Once you open for business you must do business with anyone and everyone.
Generally speaking you can only refuse service to someone for reasons that aren't discriminatory. You can refuse to rent a home to a gay couple because their credit is jacked up or because their references didn't check out but not simply because you think being gay is sinful. I am sure that The Janitor or Old Guru can quote chapter and verse on the legal arguments on both sides. It's what they do. 

But my interest is not just in the law as it is but in the broader questions I hinted at in my first paragraph as well as the points raised by Jordan Lorence. If you were going to get married or in this case committed wouldn't you want the person documenting that day to be at worst neutral about the event? Would you really want the person charged with giving you photography and video that you could cherish for years to be someone who thought the whole enterprise was completely morally bankrupt? Is wedding videography art or is it a business? Is there any equivalence between a person who doesn't support gay marriage/civil ceremonies being forced to document such an event and say a Jewish tattoo artist being forced to give someone a Neo-Nazi white supremacist sleeve tattoo? Could a black photographer be required to document the next Aryan Nations rally? Does the fact that the couple asked Huegenin and her husband to help them celebrate their event cut any ice with you? Should Huegenin just have lied and claimed she was booked already? Does Huguenin have any recourse here? More importantly, should she? If she wins her case is it just a slippery slope back to "separate but equal"?


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