New Mexico Photographer Turns to SCOTUS over Gay Wedding Flap

The tale of the photographer in New Mexico told to by the state to stuff her beliefs and shoot gay weddings anyway is not over, which is probably not a surprise. The photographer is going to try to get the case heard by the Supreme Court.

SCOTUSblog notes:

An Albuquerque couple who operate their commercial photography business on Christian religious principles will ask the Supreme Court to give them constitutional protection for their views favoring traditional marriage, their lawyers said on Wednesday.  The case, if accepted by the Court, would give the Justices a chance to sort out how gay rights laws passed by states are enforced against those who hold the view that marriage is only for a man and a woman.

Although the case does not involve state authority to allow or deny same-sex marriage, it could be the first new case related to that issue to reach the Court since its first foray into that constitutional controversy last Term.

The petition will be due in November, according to SCOTUSblog, and nobody knows whether the court will take it up. I wrote about the case in August and the question of whether the government is at odds with the citizenry in regards to what counts as a "public accommodation."

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Comments

[Fist of Etiquette]

But why in the hell would anyone want a hostile wedding photographer? God bless identity politics. Without you, how many lawsuits would go unfiled?

[jesse.in.mb]

By the time the suit is done they don't actually need the cake or the photography done. It's either about the money or about punishing someone who has hurt your feelings. The people that file these suits are short-sighted retards.

[BakedPenguin]

Also, there's the non-zero chance that if you push the issue, you might get photos not to your liking.

"Oh, you didn't like those? Oh, so sorry, I was trying to be as creative as I could, but the lawsuit threat must have distracted me."

[playa manhattan]

Before I clicked on that link, I was 100% sure it was going to be the wedding party running from the angry dinosaur.

[playa manhattan]

http://abcnews.go.com/images/E....._wblog.jpg

[jesse.in.mb]

Oh I was expecting the zombie attack photos that have been making the facebook rounds the past few days.

TRIGGER WARNING: hipsters, slideshow

[playa manhattan]

In real life, they would have humped somewhere in the middle of that slideshow

[BakedPenguin]

See, I can see how the right couple would love jesse or your photos. I don't see how anyone could love the ones I posted.

[playa manhattan]

I would be very wary of contracting somebody for a service if it were clear that they didn't like me.

Cashier into microphone: "Double Baco Cheeseburger. It's for a cop!"

[PapayaSF]

By the time the suit is done they don't actually need the cake or the photography done.

By then they'll be divorced.

[Agammamon]

"It's either about the money or about punishing someone who has hurt your feelings. The people that file these suits are short-sighted retards."

You know, I disagree in this case. I believe this couple thinks they're getting a big win for homosexuals in New Mexico, and maybe they are - its just that win is at the expense of everyone else.

[jesse.in.mb]

I believe this couple thinks they're getting a big win for homosexuals in New Mexico

You're probably right, but it would require them to be very small picture people.

These sorts of lawsuits give people who would gripe about gay marriage no matter what a reasonable foothold in public discourse. A homophobic nut running around screaming about how the gays are going to cause general western decline and destroy his or her healthy heterosexual marriage isn't getting traction anymore but by yoking that complaint to a legitimate infringement on liberty he or she can sway people in public discourse who would be more inclined to see gays getting married as "no skin off my nose".

[Bo Cara Esq.]

I imagine they are thinking along the lines of earlier civil rights activists, it is not that they so badly want that hostile wedding photographer to take their picture, it is that they badly want to not be turned down by that photographer, or any, because they are gay.

[Number 2]

If they get bad wedding pictures, they will simply file a new lawsuit alleging a hostile picture-taking environment. Or that the photographer took bad pictures in retaliation for the exercise of the right to complain about discrimination.

Never underestimate the imagination of a lawyer chasing legal fees.

[Bo Cara Esq.]

Again, I do not think it is about the pictures, it is about not being refused service because of their orientation.

[SIV]

What?

Are you saying the photog would have refused to shoot a gay father-of-the-bride's straight daughter's wedding ?

[Calidissident]

Really?

Although I guess I shouldn't expect much from Gorilla AIDS

[Bo Cara Esq.]

I am not sure what you are talking about.

[DesigNate]

He's saying that the photographer might be ok with shooting a straight girls wedding, even if her father is gay, but wouldn't shoot the fathers gay wedding.

At least that's what I think he was saying.

[Bo Cara Esq.]

If that is what he is saying it is pretty silly, it was the couple that contacted the photographer and they were refused upon informing her that the couple were same sex.

Besides, would he argue that a photographer which would photograph a same race couple one of which had a father in an interracial marriage, but who would not shoot an interracial couple would not be discriminating on racial grounds?

[BillEverman]

Not to put words in anybody's mouth, but I think what the poster is going for is that it's not necessarily hate directed towards gays, but a belief that gay people shouldn't be married.

Let's try a different example. Suppose a guy had shown up with the two women he wanted to marry, and the photographer refused to take pictures of that due to his religious principles. Would you assume that this reflected his hatred of heterosexuals?

[Bo Cara Esq.]

Hate towards gays does not have to be shown, just refusal of service based on the sexual orientation of the customer. The only thing that made the two women different than those that were usually photographed were that they were two women getting married.

[Bill Dalasio]

But, it's not the people that the person is unwilling to photograph. It's the event. That should be an important distinction.

[Bo Cara Esq.]

-But, it's not the people that the person is unwilling to photograph. It's the event.

But their objection to the event is that the people in it are the same sex.

[Calidissident]

No one here said anything about hatred. The terms used have been "discrimination" and "refusal of service on the grounds of sexual orientation." Which this pretty clearly qualifies as.

To take your example, I wouldn't take refusal in that situation as evidence of hatred against heterosexuals, but I would take it as discrimination against polygamists.

[SIV]

Thank you

That is exactly what I meant.

[SIV]

re: BillEverman| 9.13.13 @ 8:34PM |#

[mad libertarian guy]

but I think what the poster is going for is that it's not necessarily hate directed towards gays, but a belief that gay people shouldn't be married.

To those on the left there is no difference between these two sentiments. See their welfare/affirmative action = racism arguments.

[Bill Dalasio]

What if the photographer in question claimed interracial marriage was a sin? I'm not so sure it would be racial discrimination in that case. He's not saying the animus is toward the person or their status. But, rather, toward the nature of their action.

[Calidissident]

"What if the photographer in question claimed interracial marriage was a sin? I'm not so sure it would be racial discrimination in that case."

First off, good luck arguing that legally. Secondly, that would be racial discrimination by the very definition of the term racial discrimination. If you are treating a person or a group of people differently because of their race (or races) that is, again by definition, racial discrimination.

[Bill Dalasio]

Again, as I point out to Bo Cera, it's not the people who the photographer is unwilling to film. It's the event.

[Calidissident]

"Again, as I point out to Bo Cera, it's not the people who the photographer is unwilling to film. It's the event."

And? As I said below, a business owner can discriminate in some contexts while not discriminating in others. The fact that he doesn't discriminate on the basis of sexual orientation when it comes to serving birthday parties doesn't mean he doesn't discriminate on that basis when it comes to weddings.

[Bill Dalasio]

"And?"

And you're assuming that it is the person that the photographer is discriminating against, and not the event. What you are saying in practice is that it "doesn't mean that he discriminates against gay people when it comes to weddings". But, its perfectly well possible that the photographer is perfectly willing to photograph a gay person marrying someone of the opposite sex.

[Calidissident]

I'm saying he discriminates on the basis of sexual orientation in certain contexts, namely weddings. He is willing to photograph a man and a woman getting married, but is not willing to photograph two men or two women getting married. Whether you think that's right or wrong, or should be illegal or legal, by definition that is discrimination. The term "discrimination" isn't even inherently negative. I don't know why you're putting so much stock into trying to prove it isn't.I agree with you that this shouldn't be illegal. But let's pretend this isn't discrimination.

"But, its perfectly well possible that the photographer is perfectly willing to photograph a gay person marrying someone of the opposite sex."

Seriously?

[Bill Dalasio]

No disrespect, Calidissident, but "Seriously?" doesn't strike me as a sufficient response. My point goes to the nature of my argument. An artist should have freedom to choose the subject of their work. If I say I won't film such and such an event, I'm not saying a damned thing about the participants in the event. I'm making a statement about the nature of the event that I will photograph.

[Calidissident]

Your argument in the previous post is akin to saying that laws banning gay sex don't discriminate based on sexual orientation, because gay people won't be affected as long as they don't have sex, and if two straight people of the same gender decided (for whatever reason) to have sex with each other, they too would be punished by the law. Hence why I simply responded with "Seriously?"

"An artist should have freedom to choose the subject of their work."

I agree with this, as I've said. We're not debating whether or not this should be legal, or even whether this is moral. We're debating whether or not this is discrimination.

"If I say I won't film such and such an event, I'm not saying a damned thing about the participants in the event. I'm making a statement about the nature of the event that I will photograph."

If the photographer simply didn't do weddings, that would be true. But he's refusing to do a specific type of wedding. Therefore, he is discriminating (by the definition of the word, which is amoral). The basis on which he is discriminating is sexual orientation. The fact that he would photograph them in a different context, or that he would book a straight wedding for a gay father doesn't change that.

[DesigNate]

In your post you say the refusal is based on orientation, so I don't see how it's silly to point out that getting hired by a gay father-of-the-bride might be ok whereas getting hired for a gay wedding wouldn't be.

[Calidissident]

I don't think one has to prove that the business owner discriminates against sexual orientation in all contexts to prove that they discriminate (before I go further SLD applies). The reason the photographer refused to photograph the wedding was because of the sexual orientation of the people getting married. I think that is pretty clearly discrimination based on sexual orientation. The fact that these people could have gotten him to photograph a birthday party, while still being gay, doesn't change that.

[Agammamon]

"Besides, would he argue that a photographer which would photograph a same race couple one of which had a father in an interracial marriage, but who would not shoot an interracial couple would not be discriminating on racial grounds?"

No, they *would* be discriminating on racial grounds - the difference is that most of us are OK with that, as long as it remains in the private sphere (and we consider private businesses conducting business with private citizens to be private and not public).

The trick is to keep the *government* and especially law enforcement from discriminating. If private citizens do it then they face the same *private* sanctions as anyone else who says something stupid or offensive.

If the 1st amendment can allow freedom *from* religion along with freedom *of* religion, then the clause talking about 'freedom of association' can also be read to mean freedom *from* association.

[Stilgar]

well that is the bottom line isn't it? There are laws on the books which prevent photogs (and others) from turning you away because.. you are black.. you are jewish.. you are mixed race.. you are old..(and apply all to couple as well).

What does it matter the basis for your discrimination - Is there a difference between "my religion says no mixed raced couples" and "I just don't like mixed race couples"? Why is one acceptable but the other not? Do aetheists automatically have to accept everyone?

The problem here is that there is an enumeration of what one may not use for a basis to discriminate. Either no discrimination is allowed on any basis or there should be no anti-discrimination laws at all.

[Bill Dalasio]

So, in other words, they want to point a gun at somebody else's head and MAKE them accept their behavior. Basically just like any other fascist.

[Marshall Gill]

it is that they badly want to not be turned down by that photographer, or any, because they are gay.

This is a completely common human reaction.

Unfortunately, having the government attempt to coerce your fellows into feigned acceptance is also a common human reaction.

[SomeGuy]

am i the only person who would have been ok...and found a different person? I honestly don't get this. Sueing for something like this just shows you are sueing for money or to fuck with someone. This is just a waste of time

[Fist of Etiquette]

I'm guessing the point of the suit is to prove a point. Entitled means entitled.

[SForza]

The point of the suit is to prove a point. The point is: other people have to do what they tell them, whether they like it or not.

[jesse.in.mb]

That's awesome that they're escalating this. I hope SCOTUS hears it and takes this arrow out of the quiver of anti-SSM advocates.

[Paul.]

Hey, government, way to make a caricature of what the Religious Right said you would become if gay marriage were legalized.

[Calidissident]

Except that gay marriage hasn't been legalized in New Mexico, and this still happened. It's almost as if anti-discrimination laws are to blame, rather than gay marriage laws

[Eduard van Haalen]

From an earlier item at *Reason,* I learned that NM is the only state without a law on SSM one way or the other, and that in some counties, SSM has been proclaimed a right.

[Calidissident]

"From an earlier item at *Reason,* I learned that NM is the only state without a law on SSM one way or the other"

Ok. Don't see how that disproves my point

"and that in some counties, SSM has been proclaimed a right."

Was this the case in the county this case happened in, at the time it occurred? If not, that's irrelevant

[Dweebston]

Bernalillo, the county home principally to Albuquerque, is now required by judicial decree to issue marriage licenses to same-sex couples. This occurred in the last few weeks.

/resident

[perlhaqr]

Yeah, but this case is from something like 6 years ago at this point.

So the New Mexico Human Rights Commission sanctioned a wedding photographer for refusing to photograph what New Mexico itself (at the time) said could not be a wedding.

Even if one comes down on the side of refusing to let businesses choose whom they are going to service, that's fucking stupid.

(Also in Albuquerque.)

[Endless Mike]

THIS. "At last, we have achieved the end of our struggle! Now let's thug the FUCK out of everyone who disagrees with us to show them how it FEELS!"

[Plopper]

I'm glad they are too. This whole thing actually bugged me. If SCOTUS doesn't overturn this they are useless.

[jesse.in.mb]

If SCOTUS doesn't overturn this they are useless.

I wouldn't get my hopes up. I find it's safer to assume that even when I agree with the outcome of a ruling the rationale used to get there is completely whack.

[Plopper]

I find it's safer to assume that even when I agree with the outcome of a ruling the rationale used to get there is completely whack.

This is true, but the current SCOTUS actually hasn't been as bad as I had feared it would be.

[Coeus]

They have been the only ray of hope left. But the light is pretty damn weak.

[darius404]

the current SCOTUS actually hasn't been as bad as I had feared it would be.

Well that's a depressing statement.

[Bo Cara Esq.]

It is not going to be an easy case. I doubt the SCOTUS wants to generally overturn anti-discrimination laws and I am not sure how they could carve a special place for anti-discrimination laws based on orientation. I would think the best bet is to narrowly exempt certain speech related services (photography having been recognized as protected speech before) or to recognize a First Amendment religious/conscience exception.

[Eduard van Haalen]

According to the USSC, the St. Patrick's Day organizers don't have to let the gay contingent march with them,* and the Boy Scouts don't have to hire gay scoutmasters - so what principle justifies forcing photographers to violate their conscience?

*The Irish have their own St. Patrick's Day parade - they have two Grand Marshals: Patrick Fitzgerald and Gerald Fitzpatrick.

[Eduard van Haalen]

The *gay* Irish have etc.

[Dweebston]

I didn't think Irish bats for that team.

[Bo Cara Esq.]

In that case the court said that expressive associations cannot be compelled to include that contrary to their will. Do you think this photographer can argue her LLC was an expressive association?

[Eduard van Haalen]

I think that's at least one of the things she's arguing, yes.

[jesse.in.mb]

I can't serve that man, he has the Mark of Cain! It goes against my religious beliefs to serve a black man.

I honestly don't see this going the right way. I don't think the court will be ballsy enough to take on non-discrimination law.

[Calidissident]

I was about to make a similar post. I really don't see that happening for this reason. A lot of people opposed to interracial marriage believe it's against Biblical teachings. I think that case is actually pretty clearly wrong (in the passages they cite, it's pretty obvious that God is condemning interfaith marriage, and not interethnic or interracial marriage) and much weaker than the Biblical case against gay marriage. That said, the government doesn't have the power (nor should they) to declare which Biblical interpretations are correct. So I can't see how such an exception would not apply to interracial marriage, or a whole host of other things.

[Eduard van Haalen]

I'm afraid you've confused the Mark of Cain with the Curse of Ham (which technically applies to the Caananites, but don't tell the racists).

Mmmm...ham...

[Coeus]

The curse of Hamm?

[jesse.in.mb]

Actually I'm not. The Curse of Ham persisted as a covering for racists longer, but the Mark of Cain was also argued as being a reason to discriminate against African Americans, which was particularly popular when the Mormons got their start. IIRC it was the primary reason that they banned blacks from the priesthood for so long.

[Eduard van Haalen]

I'm not so familiar with the Mormons. Jefferson Davis went with the Ham angle.

[Agammamon]

They won't be. Especially since the NM ruling is completely in keeping with existing discrimination law.

Sexual orientation is a protected class and since anyone who serves the public for money is (by current legal rational) a 'public accommodation' (rather than private), you can't discriminate against gays.

[Agammamon]

The problem I have with the whole thing is its caused by the government's presumption that they have a compelling interest to end private discrimination (vice *government* discrimination) and the whole edifice of anti-discrimination law built up in violation of the rights delineated in the 1st amendment.

To counter this the government would have to say that fighting private discrimination is not a legitimate governmental function - and when was the last (first) time our government ever gave up a power voluntarily?

[Agammamon]

The problem I have with the whole thing is its caused by the government's presumption that they have a compelling interest to end private discrimination (vice *government* discrimination) and the whole edifice of anti-discrimination law built up in violation of the rights delineated in the 1st amendment.

To counter this the government would have to say that fighting private discrimination is not a legitimate governmental function - and when was the last (first) time our government ever gave up a power voluntarily?

[Bo Cara Esq.]

-the whole edifice of anti-discrimination law built up in violation of the rights delineated in the 1st amendment.

No fan of these laws, especially currently, but this statement seems a bit too much considering 'freedom of association' is in fact not expressly mentioned in the First Amendment.

[Agammamon]

"or the right of the people peaceably to assemble"

What do you think this means - it doesn't mean we simply have the right to stand in a crowd together as long as we don't fight.

[Agammamon]

"the whole edifice of anti-discrimination law built up in violation of the rights delineated in the 1st amendment."

Rights violations aided and abetted by government forces. I can understand your ambivalence towards the idea of sweeping away ant-discrimination legislation, I share it (though probably to a much lesser extent).

But the problem of discrimination is mainly a problem of government officials using their public office to enforce their own ideas of how race relations should be. Its a problem of oversight and official oppression more than it is a problem of private business choosing to restrict who they work with.

[Bo Cara Esq.]

You think 'the right of the people peaceably to assemble'='freedom of association?' Perhaps, but it surely is not explicit or obvious.

[Agammamon]

What other interpretation would you suggest?

I see assemble as meaning to group up - social clubs, friendships, who you do business with that sort of thing, not just grouping up for protests.

[Bo Cara Esq.]

On its face it simply suggests the right of people to assemble without disbursement, no?

[Agammamon]

So you're saying the only right that passage protects is the right to stand in a crowd?

Because I read it as the right to come together and collectively express, promote, pursue and defend common interests.

Which I believe is the intended interpretation.

[Agammamon]

And legal precedent favors the 'freedom of association' interpretation of the 'freedom to assemble' phrase.

[Episiarch]

Myrtle Fu: Also, in a rare double-whammy decision, the court finds polygamy constitutional.

[The court "boos".]

Old Man Waterfall: I can't wait to tell my husband!

[The court "boos" louder.]

[playa manhattan]

I don't know what this is, but I would like to subscribe.

[Archduke Trousersenthusiast]

don't encourage him

[Episiarch]

A Taste of Freedom

[jesse.in.mb]

Cyanide & Happiness

[Episiarch]

Come on, jesse, bestiality is a bridge too far.

"Sex with animals?!? There's no time, man!"

[jesse.in.mb]

Whatevs, I don't judge your love of skanks, why must you judge my love of endangered Javan rhinoceroses?

Actually, I take that back, I judge your love of skanks with extreme prejudice.

[Episiarch]

Judge away, jesse. I'm as immune to judgement as I am to good sense.

[Acosmist]

Wow, author must have been pretty butthurt to have that footnote. Have they ever, EVER done that before?

On a par with the Onion's Trayvon bullshit.

[jesse.in.mb]

Bill O'Reilly: And 10 years, this is gonna be a totally different country than it is right now. Laws that you think are in stone -- they're gonna evaporate, man. You'll be able to marry a goat -- you mark my words! [The Radio Factor, 3/29/05]

I think they were taking a direct jab at O'Reilly.

[BuSab Agent]

So only two more years til goat marriage? Cool. Not that I want to marry a goat; they are very destructive beasts and very hard to housebreak. But since I carry the seeds of crazy-cat-lady-hood in my soul, it would be nice that if I outlive my current (human) husband, my next husband could be a cat (or 20).

[C. Anacreon]

I still don't understand why government should be able to force you to provide a service to anyone, and are these people the only photographers permitted in the state of New Mexico? These people are stupid to pass up the income that photographing a gay wedding would bring, but they should be able to decline a job for any reason (or for no reason), wouldn't you think? Following this logic, does this mean that they also couldn't decline to photograph the wedding between an Arab and an 8-year-old girl (from the PM links yesterday) because that is also religious intolerance? Just how far should the government be able to go to force a private citizen or private business to perform a service for someone else?

[Archduke Trousersenthusiast]

Maybe they were the best damned wedding photographers in town?

[Hugh Akston]

Pretty sure they could get away with refusing to photograph a libertarian wedding.

[SweatingGin]

The blood could be bad for the cameras.

[PapayaSF]

The reflections off of all the monocles makes photography difficult.

[BuSab Agent]

Monocle lens flare FTW!

[Agammamon]

Libertarian weddings are boring - lot's of lawyers and paperwork and no pageantry.

[Bo Cara Esq.]

-Just how far should the government be able to go to force a private citizen or private business to perform a service for someone else?

I do not see how the answer can be anything other than 'not at all' and still be in keeping with the NAP, but the argument on the other side points to the impact of anti-black and sexist refusals to serve in our history (which were quite extensive and concerning at times) and argues that gays face a similar historical stigma.

[Hugh Akston]

...and still be in keeping with the NAP

I have some bad news for you.

[Number 2]

How about a gay photographer refusing to photograph a wedding in a church that strongly opposes gay marriage?

How much do you want to bet that that would be "different?"

[Bo Cara Esq.]

New Mexico's anti-discrimination protects religion, so the result should be the same if someone refused service based on a group's religion.

[Bill Dalasio]

I wonder if New York's does. If so, and if the Court upholds the demand that the photographer be compelled to provide service, a mean-spirited part of my soul almost hopes that the Westboro Baptist Church sues the Stonewall into letting them have their service there.

[Benjamin]

See, that's not discrimination because because straight people aren't a victim class...unless they are black or really look hispanic (white hispanics are just white unless they aren't).

[perlhaqr]

I can't tell if you think you're being sarcastic, or realise that you aren't. Because, basically, yes, that's precisely the argument they'd use.

[Bo Cara Esq.]

New Mexico's law in question protects sexual orientation, not homosexuality specifically, so refusing to serve someone because they are straight would be covered.

[HazelMeade]

How is refusing to serve someone because they are gay meaningfully different from refusing to allow someone to be a photographer because they won't shoot gay weddings?

[Benjamin]

Lol, it's not easy being WASP.

[Oso Politico]

Is having a photography business considered a 'public accommodation? If so, why? Is govt permission required?

If the Supremes take the case and find in favor, then it would open up a big can of worms with respect to public accommodation.

Wasn't Rand Paul questioning along these lines?

[Calidissident]

When I first glanced through your comment, I totally read "photography" as "pornography."

[playa manhattan]

Yeah you did

[Agammamon]

Nowadays, legally speaking, anyone who sells to the public is a public accommodation.

How a private interaction between private parties becomes public simply through the exchange of something of value, you'll have to ask that of the legislatures that figure sex is ok as long as you only do it for free (or on camera).

[Bo Cara Esq.]

What? You have answered yourself, no?

-How a private interaction between private parties becomes public simply through the exchange of something of value

-anyone who sells to the public is a public accommodation

[Agammamon]

No they are not - its a twisting of the meaning by the courts over the years to support the goal of destroying discrimination.

Public is communally owned stuff - its the street, the sidewalk, government buildings, the government as a whole.

I'm a private individual and I serve other private individuals.

[Bo Cara Esq.]

If you say to the general public 'come in and I will provide service X!' that seems pretty 'public' to me.

[Agammamon]

Except that I don't. I say the general public is free to ask me if I want to provide a service.

[Agammamon]

Or rather, the general public is welcome to come in and ask me if I'm willing to provide a service to specific private entities.

[DesigNate]

He said legally speaking. You know, cause the Nazgul decided that anyone who sells to the public is a public accommodation. That doesn't mean they're right.

(Hint: They are 100% bald ass wrong.)

[TeamBarstool]

How about a gay photographer refusing to photograph a wedding in a church that strongly opposes gay marriage?

Could a gay photographer refuse a job at the Westboro Baptist Church?

[Benjamin]

Why doesn't the photographer/bakery just say that they didn't refuse them because they were gay, but that they refused them because the event was a gay marriage?

I'm surprised nobody has sued Chick-fil-A for refusing a gay fundraiser. Or for putting cocaine in their fry batter

[Bo Cara Esq.]

-Why doesn't the photographer/bakery just say that they didn't refuse them because they were gay, but that they refused them because the event was a gay marriage?

They tried that, but the New Mexico Human Rights Commission did not accept it. The Commission's opinion is below:

http://www.volokh.com/files/willockopinion.pdf

[Benjamin]

Okay I read it, but I don't see where they specifically addressed this: "Ms. Elaine Huguenin believed that, as an artist, she became a part ofthe events which she
photographed and an owner of the images or messages conveyed in her photographs. Based on
her religious and artistic freedom of expression, she declined to photograph events or promote
views which were contrary to her belief system."

[Bo Cara Esq.]

I do think that is the photographer's strongest argument. Of course, that is a totally different point than you originally made.

[Marshall Gill]

Or for putting cocaine in their fry batter

I knew there was a reason my children loved eating at that place.

[Benjamin]

I mean, I understand they didn't buy it, but I didn't see where they explained this wasn't a valid defense.

[David Emami]

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

They are being made to provide a service involuntarily. An honest reading of the 13th Amendment can't have any interpretation other than that the Huguenins cannot be legally forced to take wedding pictures any more than slaves can legally be forced to pick cotton. Absent weaseling, the question is cut and dried.

Unless the photographers have been duly convicted of a crime and sentenced to photograph gay weddings as punishment, but if so, I haven't seen that mentioned.

[Bo Cara Esq.]

This argument would be easily dismissed. Not only are the photographers in a situation different than slavery (slaves could not escape forced labor simply by withdrawing from the field, but Elaine Photography only becomes subject to the law by operating their business and advertising to the public), but the LLC could have simply contracted the work out.

[sgs]

"Not only are the photographers in a situation different than slavery"

Not an argument nor relevant to this argument.

"slaves could not escape forced labor simply by withdrawing from the field, but Elaine Photography only becomes subject to the law by operating their business and advertising to the public"

Wrong, completely. They are subject to the law because they were sued and a judgement issued saying they were.

"but the LLC could have simply contracted the work out."

MORE INVOLUNTARY SERVITUDE.

You keep posting like you think you understand, but you have no idea what you're talking about.

[americanexile]

Just said the same.

Granted, the interesting thing is that if the SCOTUS says forced contracts are in fact involuntary servitude, they'd be undoing decades of equal protection rulings on race, religion, and gender.

Either you get to decide who you do business with, or you don't. Why a choice like religion isn't ok to refuse business to, but a genetic trait like homosexuality is ok to discriminate against would be an interesting ruling.

[SomeGuy]

ah yes choosing who you bang is a genetic trait -_- I guess if i beat a kid because i have big balls i should be able to...genetics and all.

[SomeGuy]

hell genetics make me attracted to little kids so my sexual leaning to having sex with little boys should be ok...the boy consented so its cool.....*facepalm*

[Calidissident]

Yeah, because comparing the consent of a small child is comparable to comparing the consent of two adults. By this logic, heterosexual sex is wrong because your analogy is equally valid as long as you change the word "boy" to "girl"

[Calidissident]

Choosing who you bang isn't a genetic trait. Who you are attracted to is based on genetic and epigenetic factors. The fact that there isn't a single isolated "gay gene" or "straight gene" doesn't change that. I mean, do you seriously choose who you are attracted to? I couldn't be attracted to men if I wanted to and I couldn't not be attracted to women if I wanted to (to clarify, I am a guy)

[Marshall Gill]

Who you are attracted to is based on genetic and epigenetic factors. The fact that there isn't a single isolated "gay gene" or "straight gene" doesn't change that.

There are no identifying genetic or epigenetic factors regarding sexual reproduction? The whole male and female thingy doesn't have anything to do with genetics? Show your work on the genetic and epigenetic factors of homosexuality, please.

[Calidissident]

"The whole male and female thingy doesn't have anything to do with genetics?"

Huh? Doesn't this support my argument that sexual orientation is largely based on genetic (including potentially epigenetic) factors? Reading your post, I felt like you were making two contradictory arguments in one post, which is odd considering how short it is. Genes that code for a penis or a vagina don't necessarily code for being sexually attracted to the opposite. There are quite a bit of studies on the matter, which seem to indicate a variety of potential causes, but as I said, genetics and epigenetic causes seem to be strong factors, ranging from birth order to chromosome linkage, to studies of twins, to phermones and brain structure. I know it's wikipedia, but there's a lot of stuff there that has legitimate sources.

http://en.wikipedia.org/wiki/B.....in_studies

Purely out of curiosity, what do you believe to be the cause of homosexuality?

[BuSab Agent]

The Golden Girls.

[jesse.in.mb]

Well played, BuSab, well played.

[SomeGuy]

my point is how is it a protected right if it is genetics? A lot of things are based off genetics but that doesn't make them right or wrong. You never answered why there is some moral code that changes per the time. Gay is now ok but animal sex and cild sex is not....if they both are genetics whats the difference?

Also so are countless other things like stealing, anger, lust, and what not. I am sure i could some up with better examples of things like the child and animal sex but i really don't want to take the time. Just because it is genetics doesn't make it right and even if it is something that "doesn't affect" anyone else but it is caused form genetics doesn't necessarily mean is it right or acceptable.

[SomeGuy]

thats my point if being attracted to a guy is genetic than being attracted to a little boy and a little girl or being attracted to an animal is all the same. Who are we to judge...make it all protected. So if i ask someone to photograph my wedding to my german sheppard they have to because it is genetics and everyone has to be protected

[HazelMeade]

The counter-argument is going to be that IF they are in business, THEN they must serve all comers. Nobody is forcing them to be photographers.

And my counter-argument to that is that forbidding certain classes of people from entering into commerce unless they do things that violate their religious beliefs is institutional discrimination on the basis of religion.

[sgs]

+1

[americanexile]

A) Forced contracts are involuntary servitude.

B) Religious identity is protected under the Equal Protection Clause. Gays are not. If anything, the photographers have more rights going to the SCOTUS than gays.

3) Would the progressive fascists trying to force businesses to provide services be so adamant if the photographers were devout Muslims? Or what about gay photographers refusing to photograph a radical Muslim ceremony?

[SomeGuy]

What about a cult eating an animal and sacrificing it?

[Agammamon]

Uh, in *that* order?

[darius404]

"No that's not a toilet, it's my ritual sacrificial alter of choice."

[Agammamon]

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

There is absolutely *NO* specific protections for religion in the Equal Protection Clause.

[Agammamon]

And even if there were - keep in mind that the constitution doesn't *list* your rights, it merely lists *some of the most important ones*.

So the constitution saying there are specific protections for religion still would not be saying that protections for sexual orientation are less (or non-existent).

[SomeGuy]

agreed but you must realize that no one has a right to infringe someone else's rights. A photographier saying they do not want to do business do to a conflict of interest is not infringing the gay person's rights but forcing the person to take photos is. If the photography went around telling everyone not to take that persons photos due to them being gay and tried to get everyone to agree to not take there photos would be infringing their rights.

Basically, if you both have a right and they both conflict no one has the right to force either one to do one or the other. It is the same as in if the gay's were forced to only go to a photography that was Christian for photos. That would be breaking the gay's rights to choose who they wanted.

[Homple]

How about forcing a Muslim photographer to photograph a gay wedding against his will? That would be fun to watch from a safe distance.

[Bo Cara Esq.]

1. Easily distinguished, see my comment on this supra.

2. This does not involve the Equal Protection Clause but a New Mexico anti-discrimination statute.

3. Who knows? But the law would apply.

[Acosmist]

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States," Mr. Witless for the Prosecution

[Calidissident]

I agree that anti-discrimination laws regarding private businesses shouldn't exist. That said, if the SCOTUS hasn't struck down such laws regarding race, gender, religion, etc. there's no way there going to strike this one down on that basis.

[HazelMeade]

My argument is that if they are making entry into commerce conditional upon actions that violate the religious beliefs of certain classes of people, then you have a good argument under FEDERAL anti-discrimination statues, that this law discriminates on the basis of religion.

It's like having a law that says "You can't open a restauraunt unless you eat pork". Would that law now be struck down on the grounds that it violates the first amendment and/or conflicts with federal law against discrimination on the basis of religion?

How is "You can't be a photographer unless you shoot gay weddings?" different?

Unless you want to start making arbitrary distinctions between what's REALLY an important religious belief and what isn't, there isn't any.

[Calidissident]

"My argument is that if they are making entry into commerce conditional upon actions that violate the religious beliefs of certain classes of people, then you have a good argument under FEDERAL anti-discrimination statues, that this law discriminates on the basis of religion."

"Unless you want to start making arbitrary distinctions between what's REALLY an important religious belief and what isn't, there isn't any."

The SCOTUS already been doing this for decades. Anything could be a legitimate religious belief, so by definition any anti-discrimination law would infringe of the freedom of religion of anyone who held a belief contradictory to that. To give a concrete example, many people opposed to interracial marriage feel that it is contradictory to Biblical teachings. This belief was also much more common at the time racial anti-discrimination laws were passed. I think they're pretty clearly misinterpreting certain passages, and the Biblical case against interracial marriage is nowhere near as strong as the Biblical case against gay marriage. That said, this belief is/was a sincere religious belief for a lot of people, and existing anti-discrimination laws have infringed on that for decades. Again, I'm not saying I agree with anti-discrimination laws, or the SCOTUS's reasoning, all I'm saying is that there's no way they're going to accept arguments that just as easily apply to other anti-discrimination laws that have existed for decades.

[sgs]

So you're one of those "this is wrong, but it gets me the outcome I want so I'll waste time ginning up arguments that support me" types.

How fucking sad and disingenuous.

[Calidissident]

Because that's totally exactly what I said? Did I not just fucking say I disagree with these laws? My statement was purely analytical about what the SCOTUS will do, not what I think they should do. And I was right. The SCOTUS is not going to accept the argument Acosmist presented, regardless of whether or not they should. How the fuck you read the stuff in your quotation marks into my post is beyond me

[Gilbert Martin]

" I wrote about the case in August and the question of whether the government is at odds with the citizenry in regards to what counts as a "public accommodation"

There has never been any such thing as a "public accommodation" to begin with.

It was dreamed up out of whole cloth as an excuse for unconstitutional laws that violate freedom of contract, freedom of association and private property rights.

[Bo Cara Esq.]

Actually, there is a pretty long, albeit much more limited, history in the common law of compelling certain providers of 'public' services (such as innkeepers and common carriers) to serve all comers.

[Agammamon]

While our law is based on common law traditions, I think we can all agree that not all common law decisions are very good.

I don't think there'd be much opposition here to eliminating the common law tradition of civil asset forfeiture for example.

[Bo Cara Esq.]

Perhaps, but let us not pretend that the concept of 'public accommodation' is some new-fangled progressive plot. It has been part of the common law for a long time.

[Agammamon]

The 'new-fangled progressive plot' part comes from the expansion of the idea of not allowing certain businesses to turn away custom due to the extreme hardships imposed to what we have now - *no-one* may refuse to serve one of the protected classes.

We went from a these laws being limited to a very narrow set of businesses and not allowing those businesses to discriminate against *anyone* to the modern regime of *every* business must not discriminate against a legally select set of people.

I mean we can say that civil asset forfeiture was narrowly tailored in the distant past - that doesn't mean that the right hasn't beefed it up to basically allow legal theft for law enforcement.

[Gilbert Martin]

Those aren't "public" services - they are private businesses who can choose who they do and don't want to do business with just as the other party to the transaction can choose.

[Bo Cara Esq.]

That, of course, begs the question.

[Gilbert Martin]

Nope.

Anything that isn't explicitly and directly owned and operated by some entity of government itself isn't "public" at all.

[jesse.in.mb]

A pub /p?b/, formally public house (a house "open to the public", as opposed to a private house), is a drinking establishment fundamental to the culture of Britain,Ireland, Australia, Canada, South Africa and New Zealand. In many places, especially in villages, a pub can be the focal point of the community. The writings of Samuel Pepys describe the pub as the heart of England.

I think Bo has a point when it comes to certain services being considered "public" historically. I don't know that inns and taverns would necessitate being public services anymore, although hospitals and medical centers or even gas stations in remote areas might be under the same logic.

I think that wedding photography stretches the concept overly thin and if public accommodation law is going to continue it should be for vital and time sensitive services (like hospitals and remote gas stations), not for services with competitive markets

[SomeGuy]

agreed i think the whole public services argument is thrown out if there is competition. Is there another place? Yes? So grow up and use them. This lawsuit is going to do nothing but complicate things even more and cause my damaged to our ridiculous government as is.

[Gilbert Martin]

It doesn't matter WHEN it was dreamed up - it was still dreamed up with no Constitutional basis.

Any attempt to interfere in private business decisions is a violation of 5th Amendment private property rights.

The essence of ownership is control, when government exerts control over a business that constitutes a taking of it.

[Bo Cara Esq.]

-Any attempt to interfere in private business decisions is a violation of 5th Amendment private property rights.

What? This strikes me as a sign of special desperation, since the 5th Amendment not only recognizes no express property rights but expressly notes that such rights can be intruded upon as long as 'due process' is given.

[Gilbert Martin]

"but expressly notes that such rights can be intruded upon as long as 'due process' is given."

Wrong.

Compensation has to be given if private property rights are intruded upon.

[Plopper]

Seems more like a free association thing than a 5th Amendment thing.

[Bo Cara Esq.]

Can I suggest why this kind of thing is 'a bad thing?' Let us say you think gay persons should not be stigmatized. Does anyone think this lawsuit furthers that goal rather than retards it? As Jesse notes supra this suit, and the law it is based on, do a lot to further the propaganda of those who decry same sex marriage and gay persons. The precedent this case demands will become a sympathetic rallying cry. As usual, government intervention makes things worse!

[Agammamon]

Well as usual its a government solution to a government created problem.

Civil marriage as a legal concept and all the privileges special treatment that come with it. Civil marriage is a one size fits all contract and should be abolished in favor of religious marriage coupled with custom made contracts covering the multitude of issues marriage raises (including the dissolution if the marriage).

It shouldn't be too hard - 99% of the issues have already been identified and legal boilerplate should be easy to make to cover those who are satisfied with how civil marriage is handled now.

The rest can deal with multi-volume book-sized contracts if the want to try uncharted waters.

[jesse.in.mb]

I generally agree with this, but contract law can't cover everything. I'm most concerned about 5A spousal privilege and immigration issues. Both of them could be solved ideally by the government retreating further from our lives, but I have a hard time seeing them giving up subpoena power or opening the borders.

[Agammamon]

Yeah, its a tangled web, where you can't unsnarl one mess of regulation without having to unsnarl it all at once.

[Biden's Scroteplugs]

am I the only businessman in America who runs off potential customers I'd rather not do business with (some people are assholes) by using price quotes so high that if they do accept I am OK with it?

[Biden's Scroteplugs]

my favorite is when they tell me they had to sue their previous service provider. Thanks, let me include that information in my calculations.