Gay Marriage

Supreme Court Won't Hear Gay Wedding Photography Case


Nice handshake there, guys.
Credit: kevin dooley / photo on flickr

The Supreme Court announced this morning it will not be taking up the case of Elane Photography, LLC v. Willock. The case revolves around a photographer in New Mexico declining to provide services to a same-sex couple's wedding. The photographer's decision to refuse the couple caused her small business to run afoul of the state's anti-discrimination laws. The photographer did not support gay marriage and argued that forcing her to accept the couple as clients violated her First Amendment rights.

By refusing to hear the case, the court leaves intact the ruling by the New Mexico Supreme Court that Elane Photography had violated the state's anti-discrimination laws for refusing to accommodate the couple. New Mexico has a broad definition of "public accommodation," including just about any establishment that offers goods and services to the public, not just places like hotels, restaurants and entertainment venues.

The refusal of the Supreme Court to hear the case may inspire more legislation to apply the Religious Freedom Restoration Act (RFRA) to states, as happened last week in Mississippi. Since I last took note of the Mississippi law passing, the governor has signed it. There is some outrage that the law is creating gay segregation in Mississippi, an argument that is both insulting and inaccurate. Again, Mississippi's law mimics federal law in that it requires the government to prove it has a "compelling interest" in forcing a resident to have to violate his or her freedom of religious expression. It doesn't legalize discrimination against gays. I would add that Mississippi also currently doesn't include sexual orientation in its anti-discrimination laws, so it's already legal to deny jobs and services to gays there. (Also, there was that little thing about racial segregation being mandatory under the law.)

Previously, I made the case for some heavy duty revisions of public accommodation laws, because it's absurd to attempt to argue that anybody has a "right" to a wedding cake or a wedding photographer, regardless of the customer's sexual orientation.

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  1. Another victory for freedom.

    1. Because freedom means initiating government force against someone for saying “No, I won’t take your money.”

      1. I don’t remember Brooks’ view on this subject, but I took that as sarcasm.

  2. So. As of reading this article I am now sure I am weary unto death of all things Gay Marriage. There just don’t seem to be any good guys in this movie, just two sides eager to use the state’s monopoly on violence to fuck the other. If we are handing out certificates of achievement for committing to a long term relationship we might as well give them to everyone, but the problem of government involvement in a private matter made crazier because of more government seems to be exemplified by this whole situation.

    1. There are a few good guys. They are the ones being ignored who suggest separation of state and marriage.

      1. They are the ones being ignored

        …or shouted down. I was recently called self-hating and pathetic for arguing that people who don’t agree with me have rights, too.

        1. ….wow. People seem to suck more than ever in my lifetime.

          I will say that you’re “self-hating and pathetic” for “defending to the death your right to say”/believe things I don’t (paraphrasing) is…troubling.

          Ah well.

          1. Sorry – “someone saying/believing” you’re self-hating etc.etc. is troubling.

      2. every time I ask make that suggestion, the wild-eyed stares in response hint of people living in an alternate universe where the question of action without govt involvement is never considered.

      3. Unless you plan to make it such that no one can go to court to settle a marital dispute, I don’t see how you can ever have a separation of state and marriage.

        The closest you could get would be repealing all recognition of marriage in law, no more joint tax returns and such or being able to get your spouse a green card and making it such that no one had to recognize any marriage they didn’t want to.

        Maybe that would be great. But it is not something the country is ever going to want. And even if you got it, we still would have family law and the court involved with solving disputes among couples and making rulings on what is an is not a marriage and what are and are not the acceptable ways to dissolve such things. That would seem to be a pretty hollow victory even if you won it.

        1. “no more joint tax returns and such or being able to get your spouse a green card and making it such that no one had to recognize any marriage they didn’t want to.”


          1. Sure. And regardless of whether the merits of that, your supporting it pretty much confirms the allegations of SOCONs that the point of gay marriage is to destroy marriage, doesn’t it?

            There is no point in arguing the merits of such a system. Your answer to that depends on what you value. Regardless of its merits, “we are the party that plans to destroy the entire concept of legally recognized marriage” is probably the quickest way I can think of to ensure no one votes for or pays any attention to what Libertarians have to say.

            1. your supporting it pretty much confirms the allegations of SOCONs that the point of gay marriage is to destroy marriage, doesn’t it?

              Destroy something that should have never existed in the first place. Other than to exert ungranted power over the citizenry, what is the government’s function in marriage?

              The government should be the arbiter of contractual disputes or legitimate criminal matters. Other than that, their involvement does nothing except give them more power.

              1. Good for you Fransisco. But again good with the “we plan to destroy any legal recognition of your marriage” platform. The fact that so many Libertarians would do just that just shows that Libertarians love to lose.

                Beyond that, government arises and exists for the service of the people who create it. There is nothing wrong with government recognizing the institutions of those people. Government doesn’t exist nor should it exist to recreate society. Love it or hate it, people get married, value marriage and want their government to recognize such. They have every right to do that. Libertarians only disagree because they are fanatics who view government as some alien being that exists outside of the people who created it.

                1. Bla, bla, bla…

                  Red Tony is off his meds again.

                  1. I’m still confused why he thinks something being unpopular has any bearing on it being right.

                    1. He makes these arguments, precisely because he has no principles.

                      He IS the Tony of the right. He disagrees with the “will of the majority” argument when Tony makes it, then uses it when it suits him.

                    2. You only think I have no principles Fransisco because you are a simple minded idiot who can’t think past buzzwords and absolutes. If you were not, you would make an argument rather than just screaming insults.

                      Your do realize every time you scream Red Tony, you are just admitting you have nothing to say and I have won the argument?

                      I like hopeless causes. So I will continue to kick your ass in these discussions until you learn how to think better and more clearly. Call me an optimist, but I really think some day you will learn to do better.

                2. The fact that so many Libertarians would do just that just shows that Libertarians love to lose.

                  More like we’ve accepted it. Kind of like being 12 games out of postseason contention with 8 games left.

                  But I’ll be damned if we’re going out quietly. And there’s always next year.

            2. I would vote for that party!

              Fuck marriage.

        2. Did you sign a contract together? OK, then it stipulates how to dissolve it. If you didn’t, there’s nothing to dissolve. What you decided to call the agreement is irrelevant to that.

          1. Since when is contract law simple or not a reflection of the values of the society that passes it? Suppose I sign a contract that says if my wife has an affair or flirts with another man, I can beat the shit out of her and send her home to her father. Is that contract enforceable? I would hope not, but a court would have to find as much. And once courts get into the business of deciding what contracts are valid and what ones are not, we are right back to having the same debates we have now. We will just do it through contract law rather than family law. A state that hates gay marriage could ban it just as easily under a contract system as they can now. They would pass a law saying marital contracts are only enforceable in court if they are between a man and a woman.

            Just because you use the magic word “contract” doesn’t mean it is going to look like you want it. Contracts are only good if you at least have the threat of suing and getting a court to enforce it. Without that, they are just aspirational, which you can get under any system.

            1. Suppose I sign a contract that says if my wife has an affair or flirts with another man, I can beat the shit out of her and send her home to her father. Is that contract enforceable?

              I’d uphold it in my court.

              1. You would, others wouldn’t. That is the whole debate and why calling marriage a “contract” doesn’t settle anything.

        3. you separate it to the point that the state’s only role is when disputes arise, as with any other contract. There is a difference between conflict resolution and determining which consenting adults can voluntarily enter a contract and which cannot.

          1. See above wareagle. The issue of “what contracts are valid” raises all of the same issues that regular marriage raises.

            Beyond that, people like to be married and they like that the government recognizes such. People are never going to agree to a system where the government won’t recognize their marriage. So it is a pretty pointless and counter productive position to take.

            1. “people like to be married and they like that the government recognizes such”

              People are simple. “French fried taters” simple.

            2. The ones that people signed without threats of violence.

            3. People were fine getting married without government recognition for centuries. Millinia actuaaly.

              Marriage licenses are relatively recent.

              1. Sure they can. But they can’t go to court and settle their differences unless a court is willing to hear it.

                You miss the point Rob.

          2. Well, there is always going to be a significant number of people who will not take the time to properly contract. So then when you have two people living together claiming marriage and with children and they fight over the kid or one of them dies without a will, what will be done?

            1. Exactly Bo. Contract law is just as messy and full of government interference as family law. And it implicates the exact same issues; namely what is and is not a “marriage” and what does the existence of such mean.

            2. Divide the child in half?

              1. 38th trimester abortions.

      4. Amen! “The federal government and the States shall make no law respecting marriage.” Sounds good to me as an Amendment to the Constitution.

    2. two sides eager to use the state’s monopoly on violence to fuck the other.

      All I see, at this point, is the gay activists trying to enlist the jackboots in their cause.

      As far as public accomodation goes, nobody is looking for mandatory discrimination/Jim Crow, so I don’t see the other side trying to enlist the jackboots.

      On the other issue, which is really unrelated in many ways, of gay marriage, I’m just not seeing any jackboots on either side.

  3. Nobody has the right to compel the labor of another person. The New Mexico supreme court fucked this up, and the US supreme court is derelict in their duty by letting this stand.


  4. You aren’t free unless you can take someone to court for saying “No.”

  5. Free will means nothing.

    1. But Free Willzyx means shooting whales to the moon.

      1. The moon does have a distressing shortage of whale oil.

        1. Whale Oil Beef Hooked

  6. Yep, drive the bigotry underground. Now a gay couple, instead of dealing with a business that wants their custom, will be faced with the last minute hassle caused by “Oops, sorry, our oven went on the blink last night and your cake was ruined.”

    1. I don’t know about that, since the reputation of the baker could take a blow in that scenario, but what I could easily see is litigation based on this decision for perceived slights, actual mistakes, etc.

      1. This. It’s going to be an aggrievement lawyer bonanza.

    2. We lost our pianist yesterday. Six days before the wedding.

      Flaky college kids are flaky.

      We have a new one, but the pianists name was already printed on the programs…sigh.

      1. Clearly discrimination. Sue.

        1. I don’t think robc falls under any protected classes, does he?

          1. Oh, I’m sure we can come up with something.

          2. I keep forgetting that only some of us are protected. Thanks for the reminder.

            1. There’s always age and/or disability.

      2. I will tell you what I told a friend when I was Best Man at his wedding.

        “You still have time to get out!”

        Best of luck!

          1. “Abandon hope, all ye who enter here.”

            Twenty nine years with the lovely Mrs. Almanian this year. Where does the time go 🙂

    3. I always find the idea that you would force someone who hates you to take your money pretty ridiculous. Why would you want bigots to have more money?

  7. “Heavy Duty Revisions”?

    Was it “elimination of the concept”?

  8. This news has been posted on the Web site of The Washington Blade. The comments are not of the weak of stomach, so let me summarize them for you:

    1. Proof by asssertion: You have no religious right to run your business as you see fit because I say you dont.

    2. Appeal to ridicule.

    3. The CAPS LOCK of TRUTH.

    1. 3. The CAPS LOCK of TRUTH.

      Heh, I’m stealing that one.

    2. Let me try:

      The only way you could support this baker is if you too ARE A BIGOT.

      1. Meh, replace baker with photographer

        1. I was talking to someone whose wedding photographer had taken an almost perverse glee in cropping out heads and only offering them awkward action pics. I forget why, but it involved some sort of contract dispute. Eventually, they got all of their money back and still had no wedding pictures.

          1. Well, that sucks.

            1. Yeah, but the point is that angry service workers do poor work and your recourse is probably not equivalent to not having good work done on your special day. If you are very, very lucky you’ll get someone who is more devoted to their work than to fucking you, but I wouldn’t bet my wedding on it.

              1. This, and all of this. I mean, how fucking hard is it to find a gay baker or photographer. I would think not hard at all.

                1. Especially if you’re already a member of the gay community.

      2. You either support SSM or you hate homosexuals. Those are the only possibilities.

        1. I hate everybody, so I’m okay with that.

          1. Ha! Thanks for the laugh. I also hate people, mostly because of my years in retail.

        2. A lot of people are not even cognizant of the idea that government could and should be out of the marriage business altogether. For those people they naturally see two positions, one denying gay persons the right to enter into what many see as the cornerstone or capstone of a ‘good life’ and see animus.

      3. The only way you could support this baker is if you too ARE A BIGOT.

        You’ll fit in just fine.

    3. The Constitution protects your freedom of speech only as far as your very nose.

      Um, ok. I bet this person jumps up and screams every retort whenever their feelings are challenged.

  9. If you are going to say that the SCOTUS should stay out of the New Mexico case because it is state law, then fine. I don’t agree with that, but that is one way to do it. If you want to do it that way, then people need to shut the fuck up about Arizona and Mississippi passing laws the other way or just admit the whole point of gay marriage is to compel acceptance and make it illegal to object to it.

    Good for Shakford for being consistent here. And shame on the rest of Reason for having a fit about Arizona and Mississippi. The rule seems to be “this is up to the states provided the states do exactly what we want them to do”.

    1. haven’t you learned anything, john? It’s only a good idea for SCOTUS to honor a state ruling when it’s the “right” ruling. This obviously does not apply to kochtopus tentacle states like AZ and MS.

      Curiously, intellectual consistency is even more rare than intellectual honesty. It just never dawns on people that my agreement or disagreement with something does not equal a desire to force everyone else into compliance.

      1. Or that my saying “you suck and that is a stupid thing to do” means I don’t recognize your right to do it.

    2. “Good for Shakford for being consistent here. And shame on the rest of Reason for having a fit about Arizona and Mississippi.”

      You actually complained heavily against Shackford for his stance on Arizona, which was that the bill was unnecessary and badly motivated, though everyone should have the right to refuse service. You said that if they were exercising their rights then why would Reason criticize them? I wonder if you complained similarly about the people here complaining about the Mozilla CEO.

      Did you complain as

      1. Shakford is being consistent here and he was clearly wrong about Arizona. I don’t why Shakford has changed his mind. You will have to ask him. Regardless, unless your position is that every state much force businesses to serve gay couples, you can’t say the New Mexico law ought to be left untouched and then bitch and moan about Arizona and Mississippi going the other way. It is either a state issue or its not.

        As far as Mozilla, I have argued much to the chagrin of nearly everyone on this board that economic boycotts, while certainly legal and should remain legal, are idiotic and terrible for our society. Mozilla should succeed or fail based on how good of a product it makes not its position on gay marriage.

        Think of it this way, suppose the other side succeeds in its own counter boycott and runs Mozilla out of business. This is unlikely in this case but there is nothing to say it won’t be in others. What if Mozilla is a good company that makes a valuable product? Can anyone say it is a good thing for it to be run out of business because of some culture war fight? That is nuts and why I think economic boycotts over politics are stupid and ultimately inconsistent with a free society and a good economy if they ever became really common.

        1. So Shackford and Reason saying ‘hey, while people should have the rights the AZ bill pushes this pushing is done for a bad motive’ are wrong but people saying ‘hey, Mozilla should have the right to disassociate itself from anyone they want, but this firing was awful’ are right?

          1. Those two points have nothing to do with what I said. First, the people who question the Arizona bill because of the bill’s movtives are either engaging in ad hominym or begging the question. Who cares what the “motives of the passers” are? Either the bill is something the state can do or it is not. If the people who objected to the Arizona bill think the government should compel people to do business with gays, then they should say so. But that is not what Reason did. Reason claimed that they supported the idea that people shouldn’t be compelled to do commerce but then complained about the government “affirming that right”, as if governments affirming rights is something they would object to in any other context. It was a dishonest and pathetic argument. The existence of the New Mexico case shows that. If New Mexico can decide one way, Arizona is within its rights to pass a law affirming they want to go the other way. The only reason to object to that is if you think going that way is wrong.

            1. You can think a right is a good right but criticize a specific exercise of it. For example, a Nazi has a right to hold a rally spouting Nazi philosophy, but I can at the same time defend his right and condemn his exercise of it, his motive for the rally, and what he says at it. Likewise Reason can say ‘everybody should be able to refuse customers, but these AZ legislators are just doing this because they hate gays, which is deplorable.’

              Likewise one can say ‘Mozilla has the right to fire their CEO, but doing so for that reason is deplorable.’

              1. You can think a right is a good right but criticize a specific exercise of it.

                Sure you can. But saying “this is wrong” is not the same thing as saying “you shouldn’t pass a law protecting it”. The latter is you saying it shouldn’t be protected by law. The former is just you saying you disagree.

                Reason claimed that although they think no serving gay couples is wrong they believe the government shouldn’t force people to do otherwise. Then they criticized Arizona for passing a law that did just that. Really, they were lying when they claimed that they support people’s right to do it.

                1. But you can not say ‘there should be a law, but the one being pushed now is being pushed for deplorable reasons?’ And especially when, as Shackford argued, the law is unnecessary?

        2. worse than boycotts is the precedent being set. Eich’s contribution was six years ago and I don’t think he was CEO at that time or even with Mozilla.

          Basically, it’s a litmus test. Can’t imagine how well things end when companies start poring through campaign finance records looking for something. Or, when CEO’s troll the parking lot looking for bumper stickers that annoy them.

        3. First, Mozilla has no “position” on gay marriage.

          Second, if a company makes a product which is good and people want and buy it, how can they be “run out of business” other than by government action?

          1. Second, if a company makes a product which is good and people want and buy it, how can they be “run out of business” other than by government action?

            By the mob deciding not to do business with them. If they show up and burn down my business or threaten my employees such that no one will work for me, they can run me out of business. The effect is the same regardless of whether the government is involved.

            1. You’re now moving the goalposts. No one is burning down businesses, they’re just acting butthurt (no homo).

              If people want and buy a product, the business can ignore pressure from a small number of noisy activists. If the activists don’t buy the product, who gives a shit? That leaves the other 99.5% of us.

          2. First, Mozilla has no “position” on gay marriage.

            I think they do. Their position seems to be that if you oppose gay marriage, you will be fired. Just because they are too cowardly to say this out loud doesn’t mean it isn’t, in fact, their position.

            1. More if anyone gives them pressure on this type of issue, they will fold. In other words, they gave OKCupid veto power over their executive hiring.

    3. I don’t support the government being involved in marriage at all.

      BUT, if they are going to be involved in marriage, I want to make goddamn sure that marriage entitlements are not granted to Polacks. I propose a constitutional amendment defining marriage as the union of a non-Polcak to a non-Polack. Because Polacks getting married is obviously not what the Spaghetti Monster intended.

      Let me be clear. All you Polacks have the right to exist and do all your Polack stuff. Hell, you can even have Polack civil unions, so long as you don’t call it marriage. You see that’s our word. Any attempt by the Polacks to participate in OUR entitlement program using OUR word is in direct violation of the law of the Spaghetti Monster and since this country was founded on the Spaghetti Monster ethos, we have every right to treat you differently.

      1. If you consider ethnic distinctions to be the same as being gay, then you are right. But that is the entire question, is being gay something that should be protected from discrimination or is it like any other preference and something we should be free to discriminate against. You think it is like ethnicity. Good for you.

        You find this post clever because you are too stupid to understand how it begs the question. There really is something about this particular issue that just makes you and a few other people on this board profoundly stupid.

        1. Er, John, what about religious groups protected from discrimination?

        2. Yes, treating people with respect is profoundly stupid.

          Government should not have the power to discriminate against ANY citizen, unless said citizen has infringed upon the rights of another. Not it’s function.

          But okay, John, you pick and choose who the entitlements should go to, because only the people YOU approve of should get goodies.

          1. The photographer did not disrespect people involved, the photographer disrespected what they were doing.

            Much of this is that homosexual identity is tied up in behavior that people consider morally wrong. That is not something can be compared with differences in race.

            1. I think Polacks are morally reprehensible…


              I fully support the photographers decision to not work for the couple.

              I also support the rights of gays to marry.

              I also support getting government out of marriage altogether.

              All based on the same set of principles. (The NAP)

              Gays can marry because doing so initiates no force.

              The photographer can choose not to work for the gays because doing so initiates no force.

              The government legislating marriage is an initiation of force.

              1. You might try considering something more than just throwing up assertions. You think gays have a right to marry. Okay. What does that mean? The gays who got married think it means they should have the right to use the government to force people to recognize their marriage just like straight couples.

                The government legislating marriage is an initiation of force.

                The government legislating anything is initiation of force. If you want to be an anarchist, be one. There are lots of them on here. You don’t seem to be that though. Again, why can’t the government decide to recognize marriages and if it does that, why can’t it decide what makes a marriage?

                How is doing that different than deciding anything else? Maybe if you answer those questions you will do more than just scream assertions like that is supposed to persuade everyone.

                Hell I agree with most of what you are saying and still find it annoying because it is so poorly thought through.

              2. My point was that your analogy makes little sense. The photographer did not refuse the service because they were “polacks” they refused to be involved in a polka dance.

                “Gays can marry because doing so initiates no force.”

                It also makes no sense as to why marriage laws exist.

                “The government legislating marriage is an initiation of force.”

                Maybe. But law surrounding something marriage has to exist, because the issues it addresses surrounding the stability of reproductive relationships have to be addresses somewhere. Libertarianism tends to address family structure poorly as it resents even voluntary collective actions that families represent.

                1. Only in your warped conservative mind is that accurate.

          2. I am glad you think that Fransisco. And I generally agree with you.

            Where you and I part ways is that I think maybe you ought to consider having a reason for thinking that is good beyond you like it that way and can sound sufficiently vindictive in saying it.

            You do nothing but just make assertions and are apparently too dim to understand that is not argument.

            And you think I am the one who shouldn’t be taken seriously. The irony burns more than a little bit.

  10. To those of you who bitched and moaned about the Arizona law last month attempting to codify into law a religious exemption to the monstrosity of public accommodation laws for bakers like this, this is why.

    Legislators are best served by a metric ton of salt when it comes to trusting the courts to act with appropriate jurisprudence.

  11. The supreme court will never return freedom of association to normal.

    1. And here I thought I was endowed by my Creator? with such rights, not granted them by the black-robed Gang of Nine.

      Silly old bear me!

    2. How are they supposed to return it with the text they have? There is assembly and petition language, but no association language. The Court has found an association right as a corollary of expression rights for ‘expressive associations,’ but anything further might be hard to argue textually.

      1. where is the enumerated power to force people to not be assholes? They just need to realize it isn’t there.

        1. It is hard to do with the Commerce Clause, 13th Amendment, etc.

          1. The tenth. Without the states part.

  12. I’m updating my comment. Free will means nothing when there is mob rule.

    1. My statement still stands: Free Willzyx means shooting whales to the moon.

  13. So Mozilla has more freedom than this photographer, because they’re Good Liberals?


      Yeah, I don’t even try any more to sort through these fucking angels-dancing-on-the-head-of-a-pin “rulings”. It’s madness. MADNESS!!

    2. New Mexico has a law which does not apply to Mozilla (well, outside of NM).

  14. The photographer should organize a St. Patrick’s Day Parade whenever it caters a wedding – and it should proclaim that “Every Day is St. Patrick’s Day here at Elaine Parade Organizers.” Then they should hold a parade of the wedding party down the street and “just happen” to take photographs.

    According to the Supreme Court, this would be an exercise of free-expression rights and the state can’t force unwelcome people (like gay St. Patrick’s demonstrators) to join the parade.

    Or they could reorganize themselves as Elaine’s Scouting Organization, and proclaim that only men who marry women, and vice versa, can be honorary scoutmasters and den mothers. Then it could take wedding photos of the honorary scoutmasters and den mothers as an incidental part of their membership practices.

    After all, the Supreme Court says that the Boy Scouts, as part of its free expression, can exclude gay scoutmasters.

    Or maybe we can stop drawing these arbitrary decisions and decide to support free expression all the way.

    At some point, an evangelical Protestant troll could demand that a gay florist decorate their church for a (straight) wedding ceremony, and sue the florist for religious discrimination when he refuses. I’m not endorsing such dickish behavior, but under the precedent I see no reason why it can’t by done in New Mexico.

    1. I’m not endorsing such dickish behavior, but under the precedent I see no reason why it can’t by done in New Mexico.

      They’ll argue that Protestants aren’t a historically oppressed group that warrants “strict scrutiny” in EP cases. The robes can contort their logic ad infinitum to get the result they seek.

      1. That is not how that works, legally. The EP bars state actors from unequal treatment, and current EP doctrine is that certain historically distressed groups get strict scrutiny when they are acted against by the state. That is different than statutory non-discrimination laws with enumerated groups protected.

        1. And watch them incorporate it into EP cases involving public accommodation. One red-appointed vacancy filled this POTUS term, and I’d guarantee it.

          1. I doubt it, it would be a bridge pretty far.

  15. I henceforth from this day forward command that it shall be decreed that all wedded unions shall forever more be started by elopement under penalty of total loss of state marriage bennies.

  16. I wonder if the Court passing on this indicates where they might be going on Hobby Lobby.

    1. If there’s a major, sweeping free exercise decision coming (likely statutory rather than constitutional, unless they just go apeshit), that’s a possibility. I’d be quite shocked if that happened, though, with this court. They don’t like to say no to the government that loudly, as a rule.

      1. Many liberals were already saying that the Hobby Lobby case could be ‘devastating’ to anti-discrimination laws and pointed to Whitlock being on deck as a sign of impending doom. With it off deck it frees up the Court to rule for an exemption, in my opinion. Though yes, with Roberts there is a tendency to be a narrow ruling, likely limited to closely held corporations getting to sue for exemption. Of course that will be enough for many to freak out.

    2. That is a good point. I hadn’t thought of that. I am not sure it means which way they are going on Hobby Lobby. If they rule for the feds in the Hobby Lobby case, then there is no federal right to free expression such that you can’t be compelled to engage in commerce. If that is true, then the New Mexico case is just a state law case with no federal implications.

      No that I think about it, I think you are dead right that they didn’t take this case because it is going to be effectively decided by the Hobby Lobby case. I do not, however, think the failure to take this case says anything about which way the court is going on Hobby Lobby.

      1. I am less sure that they declined because they think the ruling in Hobby Lobby would decide this one, I think they did it for political reasons, they do not want to be seen as dealing two exemption blow to close to one another and/or avoid people referencing Whitlock in order to argue that ruling for Hobby Lobby would lead to a discrimination-a-thon. I think Kenney is leaning for Hobby Lobby after hearing the orals, but he does not want to be the person who is known for undermining anti-discrimination law. Liberty has limits for him.

        1. I don’t see how Hobby Lobby doesn’t settle this one. They are either going to rule that free exercise precludes the government forcing someone to engage in commerce or they will not. The answer to that question effectively decides this case at the federal level.

          1. They are not going to rule on Free Exercise at all, they are going to rule on RFRA, which does not apply to the states.

            1. Or they decide that it really is a free exercise case. Unlikely, but not totally off the table, either.

              1. If it is Free Exercise then they run up against Smith, and Hobby Lobby loses. At orals Clement banked solely on RFRA.

                1. It would require the court to have a major “Fuck, we need to restore the Free Exercise Clause!” moment for anything like that to happen, anyway, which I view as highly unlikely.

                  That said, I think that free exercise is no less important a right than the establishment prohibition, so I’m in the camp that believes the courts have gone the wrong direction, anyway. And, no, I don’t want my kids taught that evolution is nonsense, either, because it most assuredly isn’t nonsense.

                  1. Pro,

                    Your problem with your kids being taught creationism isn’t a problem with free exercise, it is a problem with mandatory public schools. If it wasn’t going on in a public school that you had to pay for and had to send your kid to, people wanting their kids taught creationism wouldn’t matter to you.

  17. “Whatever’s worse for the gays, that’s what I’m for. Freedom to discriminate. Freedom from being fired as CEO. Whatever.”

    –Some of you

    1. Freedom of association means freedom to say “No.”

      Why do you hate freedom?

    2. “Slavery is freedom!”

      – Just you.

      1. “Antidiscrimination laws are slavery”

        –A moron

        1. “Antidiscrimination laws are slavery”

          –A moron strawman


          1. Heh – I maintain that my 12:20 beat your 12:20.

        2. Re: Tony,

          “Antidiscrimination laws are slavery”

          –A moron

          “Slavery IS freedom! I INSIST!”

          — You, insisting.

        3. Why should you be allowed to discriminate in who you allow access to your home?

      2. Yeah, but it’s the *right* kind of slavery. It’s for your own good. Oh, who decided that it was for your own good? Why, me, of course. Funny, that.

    3. “Whatever’s worse for the gays, that’s what I’m for. Freedom to discriminate. Freedom from being fired as CEO. Whatever.”

      –Some of youStrawman


    4. Apparently, what we actually have is the exact opposite if that. How is such a state just?

  18. The government may require a photographer to do the job against his will, but it can’t force him to do a good job of it.

    “Why are all the photos the Christian photographer took out of focus?”

    1. Interesting (and persistent) meme, but that’s a good way to get sued. If they can prove you gave a customer worse service because they’re gay, get ready to pay heavy damages.

      If anything, if the employment law cases are anything to go by, you’ll have to walk on eggshells when dealing with “protected class” members or risk litigation.

      1. if the employment law cases are anything to go by

        We are all well and truly fucked. Employment law has gone mildly insane. When the definition of retaliation includes firing someone for filing false discrimination claims, then all you have to do to keep your job is complain through the appropriate channels.

      2. “I apologize, I have a scheduling conflict” will be the only reason anyone ever declines to take a job in the future.

      3. how would you prove intent over incompetence?

        1. Extensive discovery. The use of “testers” (one tester says he’s in a straight couple and they have room in their schedule, another tester says he’s gay and get a phony excuse). Statistical analysis (“he didn’t serve any gay couples – this can’t be coincidence!”).

          Is it worth the risk?

          1. Oh, and many of these businesses are owned by religious believers who probably have scruples against lying, so they’ll go right ahead and admit their motives.

            1. And even if you “win,” will you be fully compensated for the time and expense of defending yourself against the charges?

      4. I am amazed that many see the solution is not only the provider is forced to participate but the customer is actually harmed. The way things are now, there is no way for a provider who objects to serving homosexual weddings to make that known beforehand.

        1. Well, you can let people know as it is now, it’s just that you have a lawsuit threat.

          “Will you take pictures of our wedding?”
          “I would prefer not to as I disapprove of homosexual marriage.”
          “You will photograph our wedding or we’ll sue.”
          “Fine, I’ll take the job.” (note to self: turn autofocus off on May 3rd.)

          Most contracts are written such that under-performance can only be punished by withholding or reducing payment. So long as the photographer does not negatively interfere with the wedding he’ll be in the clear.

    2. See above: “Why aren’t our heads in any of these shots except where our expression makes the picture even worse?”

  19. I smell troll? Hey – it’s TONY everyone! Hi, Tony w/no spaces! Look, he’s already pooped! Please don’t engage it. Please…(just a request – SLD, etc.)

    1. Awwww, c’mon, this whole article is Tony bait.

      1. Tony chum? Why yes, yes it is. Clearly Shackford’s post haven’t been generating enough comments so he had to chum the water.

  20. So, if I may, let me ask a serious question. What’s the endgame here? It would seem moral, principled gays would be abhorred at this, especially when acceptance for them has never been higher. It seems like exactly the kind of ruling that a bigot can point to and use as rhetorical fodder. Worse still, when raised as a possible consequence of these laws, gays dismissed that as fear mongering. It wasn’t.

    So, how does this end well for… anyone?

    1. It doesn’t. It’s pretty much the same road that killed feminism in the 90’s. It also feeds the myth that the relationship between gay and straight people needs to be primarily adversarial.

      1. The *name* “feminism” may have a bad odor, but the thing itself is thriving. Just try telling a salesman-and-farmer’s daughter joke at your job. Get ready to start looking at the want ads.

        1. Which is what killed it. Women are studiously excluded especially in the IT field because no one wants controversies or lawsuits.

      2. … as well as the myth that rights are a zero-sum game.

    2. What’s the endgame here?

      You’re looking at it. Initiating government force against people who have improper beliefs was the end game.

      Worse still, when raised as a possible consequence of these laws, gays dismissed that as fear mongering. It wasn’t.

      They were lying.

      1. Sarcasmic, your assertion might have more weight if you didn’t make the same assertion about recycling ordinances and litter laws 😉 (I know, I know: “STRAWMAN!!1!”

      2. Yeah, obviously they were lying.

        I think, when someone tells you that the law won’t be used in a certain way, after you’ve seen in used that way in other very similar contexts for a long time, you need to be suspicious.

        1. A similar thing happened in my state when a voter initiative added homosexuals to the list of protected classes. The proponents poo-pooed people who cautioned that this was a step towards redefining marriage. Before the ink was dry those very same people who were doing the mocking challenged the marriage law as being discriminatory towards a protected class. They won.

          1. I stumbled on this and thought of you…

            Call it left-wing anti-liberalism: the idea, captured by Herbert Marcuse in his 1965 essay”Repressive Tolerance,” that social justice demands curbs on freedom of expression. “[I]t is possible to define the direction in which prevailing institutions, policies, opinions would have to be changed in order to improve the chance of a peace which is not identical with cold war and a little hot war, and a satisfaction of needs which does not feed on poverty, oppression, and exploitation,” he wrote. “Consequently, it is also possible to identify policies, opinions, movements which would promote this chance, and those which would do the opposite. Suppression of the regressive ones is a prerequisite for the strengthening of the progressive ones.”

            Represssive Tolerance. It is beyond Orwellian and pure sociopathy.

            1. Interesting in a depressing sort of way.

    3. The activists want to sweep the boards. The fact that they got so far in just a few years doesn’t give them a lesson in restraint and humility. Indeed, it gives the message that they just have to press hard enough and they’ll get what they want.

      If we recall the success of the SSM movement, and then remember that “anti-discrimination” laws for gays are *even more popular* than SSM, I see no logical reason for the activists to stop with mere govt recognition. They seem to be succeeding in forcing private entities to recognize them.

      From the purely political standpoint, I have to admire their skill in winning so many victories in such a brief span of time. Not only that, but casting their opponents beyond the moral pale in many communities. No way they’re going to pull back now.

      1. You guys are generalizing, not all activists in the gay rights movement approve of this sort of thing.…..r-markets/

        1. It just takes one litigant to trigger government intervention.

          99 people not-suing can’t outweigh 1 person suing.

          1. Fair enough, but all the suing in the world is not helpful unless there is a statute on the books about it, and relatively few states have statutes protecting people on sexual orientation.

            1. Meh, judges decide things.

              There’s a judge out there who’d dismiss this case. You know that. The law is words, and words are interpretation.

              1. Judges have to have some law or cause of action to apply for a suit to win.

                1. As I said, laws are words. If you’re going to argue that a judge has never interpreted a law that was only tangentially related in order to move a case forward, then we’re wasting each other’s time.

                  1. There are limits to that. A judge that, what, tried to fine someone or award damages for something that was not a cause of action would get overturned at a higher level.

                    1. So you agree then that I’m correct that judges can and do interpret the law, and are arguing the scope.

                      As I said, a waste of time

                      “would get overturned at a higher level.”

                      Maybe, maybe not, sometimes definitely not. Again, bad decisions happen and propagate, and last for decades in some cases.

                      There is nothing wrong or incorrect about what I’m saying, you’re simply arguing that it is unlikely.

                    2. No, what you are saying is actually wrong.

                      I guess a lawless judge could decide against someone when there is no cause of action recognized, but it would be overturned with a 99.9% probability.

                    3. “No, what you are saying is actually wrong.
                      I guess a lawless judge could decide against someone”

                      So I’m wrong, but right there you agree that I’m right.

                      “There are limits to that.”

                      And there again.

                      Make up your mind troll, I’m done.

                    4. There is a reason this suit happened in New Mexico and not, say, Georgia. GA certainly has gays, gay activists and business that will not serve gays. But NM has a law on the books prohibiting discrimination in public accommodations on sexual orientation, GA does not.

                    5. Unresponsive to my post.

                    6. It is more than responsive, it is dispositive. Judges can make wild rulings about what falls into or not into laws and causes of action on the books, but they can not just make those up. If they do, they are struck down.

                      So you could walk into any court in GA and plead and argue that refusal of service based on sexual orientation should be remedied by the court, and you could have the few liberal Democrat judges in that state ruling, and you are not going to get any traction. None. That is why we have none of these kinds of cases in states that do no have NM type laws on the books.


                      That’s still the law asshole, save your pleading, your stupid law student schtick got old months ago.

                    8. You are proving my point. That case was about an Executive Order issued by the President.

                      Look, like neener you do not know much about how law works and you have heard someone say that judges sometimes ‘make stuff up’ and you took it literally and simplistically.

                    9. I said

                      “There is nothing wrong or incorrect about what I’m saying, you’re simply arguing that it is unlikely.

                      Your response, which seemingly made sense to you in your stupidity induce fugue, started with this

                      “No, what you are saying is actually wrong.”

                      And your evidence?

                      “I guess a lawless judge could decide against someone when there is no cause of action recognized, but it would be overturned with a 99.9% probability.

                      To admit that is is indeed both possible and unlikely.

                      I don’t see a single thing that shows I’m wrong, you are , again simply arguing that it is unlikely, and frankly, your opinion is worth squat in light of your posts.

                      Go have a taco and shut up now.

                    10. If you want to say your contention rests on a foundation of a .1% chance of occurrence, then I agree with you.

                    11. Why would I do that when it’s your number, and you’ve already admitted to lying in this thread?

                    12. Wow, considering that itself is a lie that is pretty impressive.

                    13. You said I was wrong, then admitted I wasn’t.

                      It’s right there in black and white, I even highlighted it for you. Do you think everyone here doesn’t see it, or know that you see it?

                      How dare you call me a liar when the evidence is right there? You do know, that if you are in fact a real attorney, or plan to be one, that this is all public record?

                      I look forward to the day some enterprising young go getter chases down your posting history and points out things like this.

                    14. For Bo, arguing is masterbation. Best to stay out of range.

                    15. But is it gay masturbation?

                    16. Some realizations come too late, but thank you anyway.

                    17. What is ‘masturbation?’ Is this some slavery riff?

                    18. First, “you’ve already admitted to lying in this thread” does not equal “You said I was wrong, then admitted I wasn’t.”

                      Secondly, you are wrong about how the law works. You think you are right because there might be some slight chance that a judge would lose their mind and make a ruling based on a non-existent cause of action, but that judge would be overturned ‘lickety split.’ So, since nothing is impossible, there is this slight, slight chance, which becomes even slighter when appellate courts come into play, which they do because that is how the law works. In the end you have a claim resting on a .1 x .1 x .1 chance of occurrence, which is like arguing about angels on the heads of a pin.

                    19. First, “you’ve already admitted to lying in this thread” does not equal “You said I was wrong, then admitted I wasn’t.”

                      You’re not the arbiter of that. You don’t decide what a lie is to other people, liar.

                    20. It is bad enough if logic escapes you, but grammar too?

                    21. Anything else?

                      NO more stupid insults, or attempts to forward your assertions as facts while lying about me?

                      Is that it now?

                      Are we done liar?

                    22. Wait, I thought I was lying about me, now you think I am lying about you?

                      You go to some interesting lengths to cover up your ignorance of something.

                    23. Grammar? Really?

                      You should let go of your inner-douchebag. People would appreciate your views more.

                    24. Basic grammar shows those two statements are not saying the same thing.

                    25. “neener neener|4.7.14 @ 1:25PM|#

                      You said I was wrong, then admitted I wasn’t.”

                      “Wait, I thought I was lying about me, now you think I am lying about you?”

                      Thinking was your first mistake, now we know you read for shit too. Is reading that hard for you?

                      So, anything else liar? Any more evidence you want to heap on the pile proving your “competence”?

                    26. You are just flailing around in your trolling now.

                      “You said I was wrong, then admitted I wasn’t.” Even were this correct, which it is not, it is not describing lying, much less an admission of lying.

                    27. Yeah, you’re still doing it. Douchebag.

                    28. I knew you had to switch handles.

                    29. Stop projecting asshole.

        2. So, what are those people doing about it?

          They need to vote and act appropriately, and observational evidence seems to show they aren’t doing that.

        3. the gays who do not approve are either vastly outnumbered or being shouted down. Maybe both. I’m looking forward to the case of the company firing people whose cars have Obama stickers, or something else that the CEO dislikes.

          1. “the gays who do not approve are either vastly outnumbered or being shouted down.”

            And their criticism of the “movement” will be written out of history, like Zora Neal Hurston’s criticism of the mainstream civil rights movement. Hurston is in some places praised as a literary figure, but she hasn’t had political influence in moderating the excesses of The Movement.

            1. What’s the gay version of an Uncle Tom?

              “Self-hating gay”?


              1. “What’s the gay version of an Uncle Tom?”

                St. Paul?

                1. Minneapolis?

      2. From the purely political standpoint, I have to admire their skill in winning so many victories in such a brief span of time.

        As I recall, most of the victories were acheived through the court system rather than through the political process.

    4. The end game is punishment. Foresight does enter the picture.

      1. *doesn’t

    5. It would seem moral, principled gays would be abhorred at this

      Yes, but they don’t get to frame the debate because they aren’t Activists.

  21. So was Elane Photography fined and/or jailed?

    1. Fined (had ‘damages assessed’ against them).

      1. What if Elane Photography refuses to pay the fines; what then?

        1. Sure, like any court case jailing is where it would eventually end.

          1. If the owners of Elane Photography refused to go to jail?

            1. Presumably, the state would arrive at the door and exercise violence to force compliance.

  22. Just now reading the email transcript. Willock sends out an email to various photographers. Elane Photography responds that they only work traditional marriages. Then Willock takes her before the state human rights commission because she felt the statement was hateful. Stonewall this is not.

    1. Hateful did not matter, refusal of service did.

      1. never dawns on people that when they’re told “I don’t want to serve you” that a good idea is to find someone that does. Ultimately, businesses who turn away customers tend to not do well. There is probably some economics principle that speaks to this, but this is about principals.

        1. I do not think they care so much about the actual refusal of services, they care that their group is seen as inferior or immoral and that ‘in this day and age’ they can have service refused for such a reason. I think that is what the civil rights activists thought (at least the later ones, the early ones seemed to be more concerned that the actual refusal causes a hardship).

          1. “… they care that their group is seen as inferior or immoral and that ‘in this day and age’ they can have service refused for such a reason.”

            In other words, they threw a temper tantrum backed by force of law.

            1. They probably see it as ‘invoked their legal rights.’

              1. Kids who throw temper tantrums do so because they feel they are denied something they are entitled to that they are not. That the law encourages such behavior in adults is the fault of law, not a reasonable rationalization.

    2. Note to self. If I am ever in this situation, just say “Sorry, I am booked that day”.

  23. I think, perhaps, gays think they are somehow immune to the backlash if it were to happen?

    Because the US government, with all it’s history of human rights abuses, is going to give two shakes about them if it stops being convenient. Anyone who’s not a fool knows that. So why rely on it? Why set something like this in motion?

    1. Because the monster that you help to create will never turn on you. Never mind that it is already doing that with regard to radical feminist gatherings.

    2. There is nothing to say Progs will always be on the gays’ side. The Progs were the ones who in the early 20th Century classified gays as deviants and mentally ill. When gays started to demand an end to official oppression in the 1960s, they were pretty much alone in doing so. There were not any progs helping them out. The progs only showed up when they figured out that supporting gay rights helped out in their larger war against their political enemies and values. If Progs ever decide supporting gays no longer furthers that, they will turn on gays in a heartbeat. Don’t know if that will ever happen or when if it does. The possibility would give me pause if I were gay however.

      1. “If Progs ever decide supporting gays no longer furthers that, they will turn on gays in a heartbeat. ”

        I’m not suggesting it is happening, but a place with high Islamic immigration numbers could potentially go this way, no?

      2. “The Progs were the ones who in the early 20th Century classified gays as deviants and mentally ill.”

        True, and it was the Progs who pushed the government being able to take action on such ‘expert’ opinions.

      3. We all know how gays were viewed and treated in the various hard-left Progressive experiments in governance during the 20th Century, but does anyone know they were viewed/treated in other, more “democratic” socialist places?

        1. Like shit, mostly. The Soviets were nice for a few weeks, considering anti-gay ideas to be associated with religion, but then stumbled upon the idea that being gay was due to bourgeois western influence so they clamped right back down.

          The DDR was about the safest place but they still weren’t really good.

  24. So, the New Mexico ruling stands, where Elane Photography is legally compelled to shoot the gay wedding. I hope they clarify definitions.

  25. What would be the consequences of a wedding photographer who only took jobs for people who attended marriage counselling conducted by a particular pastor or organization?

    “Sure, I’ll shoot your gay wedding, but it’s our policy to only work for couples who have attended 13 weeks of marriage counselling conducted by Westboro Baptist Church.”

  26. Reading the CNN comments section on this is quite depressing.

    it really goes to show that Americans really do hate freedom.

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