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N.M. Supreme Court: Photographers Can't Refuse Gay Weddings

Quick! Somebody alert Bob Schieffer before he misses this story too.

In a closely watched case on gay rights, religious freedom, artistic freedom, the speech rights of businesses, and a host of other legal hot button issues, the New Mexico Supreme Court today ruled that wedding photographers could not refuse to shoot gay ceremonies.

"When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the [New Mexico Human Rights Act, or NMHRA] in the same way as if it had refused to photograph a wedding between people of different races," the court said in a unanimous verdict.

The court rejected each of photographer's Elaine Huguenin's arguments, particularly one in which Huguenin had argued that her refusal did not discriminate against same-sex customers. Huguenin had argued that she happily photograph gay customers, but not in a context that seemed to endorse same-sex marriage. Likewise, she said, she wouldn't shoot heterosexuals in a context that endorsed same-sex marriage.

The court rejected any legal differentiation between homosexuality and homosexual conduct.
You must comply is the new tolerance.

This is what it comes down to and with more and more legal recognition of SSA, the impetus to force faithful Christians to comply grows every day.

This is a great battle of our day.

*subhead*Of course.*subhead*

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40 comments:

K T Cat said...

We are a competing religion to the State.

Ron said...

The court also gave them a smarmy little lecture about the importance of compromise in a pluralistic society, reminding them that they are free to practice their faith in private but not in the civic arena. That's America in 2013. (And, by the way, the decision is being HERALDED by the Catholics over at Commonweal.)

Tom said...

This is free exercise of religion in modern America . . . your "free exercise" is to believe what you want, but keep it private, to yourself. Take your faith into the closet and keep it there. How ironic.

Proteios1 said...

Pushing Christians into the closet. Maybe we could find ways to do business with each other and avoid giving our money to others who clearly will use the money to promote values we disagree with. Sorta the reason I don't use amazon, Starbucks, eat Oreos, etc. why give money to those who will use it to suppress me? Seems stupid.

Proteios1 said...
This comment has been removed by the author.
Sophia's Favorite said...

So...they're being compelled to accept employment with a particular person, by force of law?

Yeah, uh, that violates the 13th Amendment. "Compulsory labor" has a shorter name, it's called "slavery". If you are not free to refuse a particular contract, you are not free at all.

overcaffeinated said...

Unfortunately, the court does seem to have ruled correctly based on the law. From its ruling: "The NMHRA prohibits discrimination in broad terms by forbidding 'any person in
any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services ... because of ... sexual orientation.' Section 28-1-7(F)"

It then explains how the US Supreme Court "has rejected similar attempts to distinguish
between a protected status and conduct closely correlated with that status." So there's not really any getting around that, is there? I don't think we should expect the court to rewrite the laws or overturn Supreme Court decisions when it sees fit.

However, there is also this: "[Businesses] may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws." So there is that.

A commenter above said a Commonweal blog post "HERALDED" the decision. That post, written by a law professor at the University of Chicago, did express agreement with the decision but is written in a fairly calm and rational tone. Conservatives need to toughen up and learn how to beat people at their own game, instead of whining when things don't go their way. Again, this decision seems to be correct based on existing law and precedent. To suggest that those things be overturned by judicial activism just because you don't like them is immature. You need to argue either: (a) the decision is wrong in light of existing law, or (b) the existing law is wrong. And why. Whining about the big bad gays forcing us to do something just sounds weak.

Ron said...

Eduardo Peñalver has made his hostility to Catholic teachings on sexual issues the hallmark of his presence on the Internet. If he came across to you as "calm and rational" in his post on this court decision, overcaffeinated, that's because it gave him yet another chance to stick it to serious Christians with a hearty "I told you so."

The logic of his response was very like the logic Commonweal Catholics use to defend abortion: It's really for the best that we all go-along-to-get-along in our beautifully pluralistic world. In fact, I suspect Peñalver would be equally sanguine about the matter if the court had ordered the Christian photographers to document an abortion (which, like gay marriage, is "sacred ground" for elitists like himself).

Mary De Voe said...

That the court equated same-sex attraction to homosexual behavior leaves me speechless. The defense was that all persons will be served but not when they do something that offends the business owners. God discriminates against gay marriage. Gay couples cannot consummate the marital act. Now, we are all forced to lie about it and say that they do.

overcaffeinated said...

Mary, again, in the interest of rationalism maybe refer to the decision of the US Supreme Court that was cited. Being speechless doesn't help matters.

Tom said...

@overcaffeinated:

"Conservatives need to toughen up and learn how to beat people at their own game."

While I generally agree with you about the need to focus on more rational forms of argument, it is extremely difficult in our system of government to "beat" a US Supreme Court decision and to defeat those who have made it their focus to pursue their social/cultural agenda through the courts. Just ask the opponents of Dred Scott.

This breeds understandable frustration in a people who adhere to "We the People...", and not We the Courts, as the legitimate expression of self-goverance.

Joe said...

Could an African-American photographer refuse to photograph a KKK rally? I understand that a Klan rally isn't fundamentally connected to being white, but neither is gay "marriage" fundamentally connected to being gay. The respective relationships between the two identities and behaviors seem reasonably enough equivalent.

overcaffeinated said...

Tom, okay, but being frustrated doesn't do anything. As far as I can tell (IANAL), the decision was correct based on the law. It was NOT based on the whim of the court, as you seem to suggest, but on the law, particularly the NMHRA. If you disagree, then your disagreement is not with the court, but with the law, which was enacted by elected representatives of the state of New Mexico. As the court noted, "In 2003, the NMHRA was amended to add 'sexual orientation' as a class of persons protected from discriminatory treatment." That is the problem, not court decisions based on the NMHRA.

In order to protect religious liberty, we need to work within the framework of the rule of law. We need to argue that sexual orientation is a dubious category for nondiscrimination. Or, argue that acts can legitimately be distinguished in this case from identities. Or, most difficultly, argue that nondiscrimination laws are inherently inimical to a free society. But just sitting around being outraged and speechless makes us look like sad losers.

Andrew said...

So....conversely, a gay caterer in Topeka must service weddings at the Westboro Baptist Church?

Unknown said...

Andrew and Joe: Per the appeals court ruling, the KKK and Westboro Baptist aren't protected classes. Some animals are more equal than others. Dave P.

Mary De Voe said...

The Court said: "When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the [New Mexico Human Rights Act, or NMHRA]" The Court referred to a "same-sex commitment ceremony" to respect the photographer's religious beliefs about "so called same sex marriage" A photographer, a wedding photographer, does not have to photograph something that is not marriage or a real wedding. Even the Court recognizes that same sex commitments do not consummate the marital act. Marriage is the consummation of the marital act. One half of a consummation is no consummation, in the same manner that one half dollar is not one dollar. Do not make me lie that it is using my tax money.

Mary De Voe said...

@overcaffeinated: "In 2003, the NMHRA was amended to add 'sexual orientation' as a class of persons protected from discriminatory treatment." That is the problem, not court decisions based on the NMHRA." When a wedding photographer refuses to photograph "ceremonies" and the court decides he must, the court criminalizes the freedom of the photographer to choose to follow his calling. It is more than likely that the photographer NEEDS to photograph real weddings to remain sane, In which case, the court and the law is discriminating against a sane person. The church forgives sins, the state prosecutes crime: separation of church and state. For the state to redefine sanity as a crime is criminal.

Mitchell Hadley said...

I'm no constitutional scholar, even though I took it in college (which was way too long ago, given how the law seems to be interpreted nowadays), but a query: if, per the decision, "[Businesses] may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws," would a business be within its rights to include in that disclaimer that 100% of the proceeds from such a transaction would go directly to organizations dedicated to fighting same-sex marriage?

Would that be considered hate speech? Would it discourage same-sex couples from going to such a business, knowing that their money will be subsidizing a cause antithetical to their own? Would that possibility further complicate things for the business in question?

Merely curiosity as to whether or not this would be viable alternative, and apologies if it's been previously raised.

Elizabeth said...

Since they're being literally forced to do something against their conscience, spiteful as this may be, I suggest they take the absolute worst "pretend wedding" pictures one can imagine. They can simply plan ahead of time that the day's wages will be lost. Accomplish anything? No. But since they're being forced against their will, do it.

Mary De Voe said...

By not taking any compensation for photographing same-sex celebrations, the photographer avoids any liability for the end product for surely these same sex practitioners are insatiable.
@Mitchell Hadley: "We only HONOR OUR MOTHER AND FATHER" as in the Supreme Court chamber. If the Supreme Court can post it surely citizens can.

elm said...

Perhaps a change in the business "shingle" to Holy Matrimony photographer would give an out to photoing something that is a mirage.

Sarah said...

If someone identifies himself as homosexual, chances are he doesn't see homosexual acts as unnatural and perverse, and he's more likely to BE an active homosexual (given the opportunity). I wonder why this woman honestly thought she could photograph people who blithely identified themselves as homosexuals and not find herself in a situation like this down the road. One of her homosexual customers might have thought, "Hey, we'll just call Elaine! She knows I'm gay, and she seemed cool with it last time ..." only to find out, while she seemed perfectly okay with their being homosexual, she does sees a problem with homosexual "marriage." And she should. But why even give the homosexuals the impression that we're cool with their perversion. I realize she was probably trying to avoid a lawsuit by acting nonchalant about their open admission to being homosexual, but homosexuality doesn't deserve nonchalance or niceness.
If someone suffers from same sex attraction, it IS something to be ashamed of. The Catholic faith is not.

Scotty8775 said...

She should have shot the wedding and put a disclaimer on each and every photo! Don't the rights to the photos belong to her?

John C. said...

There is a precedent being set by the gay lobby now. If this case is upheld, the gay militants have a powerful arrow in the quiver. Homosexuals are truly tortured souls. We must pray and love them also. I understand the angered comments, but also wonder if other forces are behind the push? The problem began when psychiatrists stopped tthe DSM description of homosexuality as disordered, like pedophilia and necrophilia. Again, I truly believe its still psychologically "off" -and knoe its disordered when thought, and gravely deprived when acted on. Pray for them

John C. said...

There is a precedent being set by the gay lobby now. If this case is upheld, the gay militants have a powerful arrow in the quiver. Homosexuals are truly tortured souls. We must pray and love them also. I understand the angered comments, but also wonder if other forces are behind the push? The problem began when psychiatrists stopped tthe DSM description of homosexuality as disordered, like pedophilia and necrophilia. Again, I truly believe its still psychologically "off" -and knoe its disordered when thought, and gravely deprived when acted on. Pray for them

John C. said...

There is a precedent being set by the gay lobby now. If this case is upheld, the gay militants have a powerful arrow in the quiver. Homosexuals are truly tortured souls. We must pray and love them also. I understand the angered comments, but also wonder if other forces are behind the push? The problem began when psychiatrists stopped tthe DSM description of homosexuality as disordered, like pedophilia and necrophilia. Again, I truly believe its still psychologically "off" -and knoe its disordered when thought, and gravely deprived when acted on. Pray for them

Mary De Voe said...

@Sarah: "If someone suffers from same sex attraction, it IS something to be ashamed of. The Catholic faith is not." Same sex attraction is like any other disability, being armless or footless, neither being a sin or shameful. Acting out unnaturally, pretending that sodomy is a sex act or the marital act is first and foremost A LIE, PERJURY IN A COURT OF LAW, lacking any standing in a court of law. Had the court heard our Pope say that acting out sodomy is disordered, the judges might have understood the truth about sodomy. Before the American Psychiatric Association was forced by the North American Man Boy Love Association to diagnose same sex attraction as "NORMAL" , the psychiatrists had diagnosed ssa as "ARRESTED DEVELOPMENT". NAMBLA is legally forcing the adaptation of pedophilia without allowing informed sexual consent of minor children. Supreme Court Justice Ruth Bader Ginsberg supports legal informed sexual consent at fourteen years of age for minor children. I say, perhaps it would be nice to legalize Phds. for minor children without college.

Subvet said...

So what happens if, instead of playing the game set up by the proponents of gay marriage, a Christian photographer agrees to take their business and then proceeds to take the absolute WORST pictures imaginable? Seems it would be more difficult to prove "discrimination" in that case.

I know it poses other possibel problems such as the implicit endorsement of gay marriage by accepting their business. But in these times avoiding a head-on confrontation in the courts where legal precedent would be set for the further persecution of Christian believers might have merit.

Just wondering.

Gail Finke said...

Most of us don't know enough about the case to really comment. Overcaffeinated says that they made the correct decision according to the state's law, but I'm not certain this is true. The SC all ruled that the business was a "public accommodation" and so has to serve gay people because they are a protected class. But the business DOES serve gay people. What was in question was the business's refusal to cover a particular event.

Event photographers do not have to photograph every event they are queried about. These photographers could legitimately say "we don't photograph soccer games" but may not, SC says, say "we don't photograph gay commitment ceremonies."

Now the question is, why are those things different? The lawyers say it's because it's a GAY commitment ceremony, but surely the photographers may say, "we don't photograph outdoor weddings" or "we don't do weddings at this or that venue" or "we only photograph Saturday weddings." The latter are all things that wedding photographers actually do say.

You're allowed to say the latter but not the former, because the former is about "sexual orientation" and not practical considerations. But event photographs are not products one purchases, they are services performed by people who must attend the event to provide them. How is it that one class of people are apparently able to compel a business to provide custom services at the location of the customers' choice, while other classes of people are not?

Also, the case was actually on First Amendement grounds -- for SPEECH, not for Freedom of Religion. Lawyers argued that photographs are artistic speech, and that compelling photographers to produce photographs was in essence making them endorse the event they photographed as a good thing. I find this an odd argument. The SC, unconvinced by it, decided it had nothing to do with speech and was simply a matter of the business accommodating the public.

The bases for legal decisions are really important. You aren't really discussing cases unless you discuss the bases for rulings.

Gail Finke said...

overcaffeinated is right about the problem being "sexual orientation" being including in the NM laws prohibiting discrimination, and many people would very much like it to be in the federal Equal Opportunity law as well. Most people who support this think vaguely of wanting to protect people against being fired, or not allowed to rent an apartment. But what it would actually do is far broader, and this is just one example of how.

Subvet: I dont' think it would be at all difficult to prove discrimination in that case. Taking terrible pictures on purpose? While also being juvenile and detrimental to the photographers' careers, it would also lead them open to fraud or similar charges.

Pat said...

@Mitchell: Rather a brilliant suggestion.
@John C: Don't fight science. It's not a disease or a disorder or a handicap and we certainly dont want our scientists to say it is. Scientists also no longer recognize "female hysteria" as a treatable disease/disorder. (If it were, a few of the commenters here would be in big trouble!)

Subvet said...

Gail Finke: you may be right. But I know there are a lot of incompetent people in all walks of life, some come with surprising high recommendations from supposedly trustworthy sources (don't ask, long stories. caveat emptor always applies).

So I wonder how high the bar of proof for discrimination in such cases could be.

As for being detrimental for business, everybody has an "off" day. I'll cheerfully cede "juvenile", you got me there!

Sophia's Favorite said...

Actually, Pat, no new research prompted its removal as a disorder from the DSM, it was simply political fiat. Look it up.

The little research that has been done seems to suggest that it is, in fact, a maladaptive coping mechanism for childhood sexual abuse. So it probably is a disorder. Don't fight science.

Also, no serious ethologist considers homosexual interactions to be remotely comparable to opposite-sex ones. Homosexual ones are at best a secondary sexual behavior—often a pathology triggered by various stresses. It's no more comparable to "mating", from a scientific standpoint, than a dog licking his crotch.

Don't fight science.

Pat said...

Sophia, you are delusional. "Political fiat"? Please. Are you telling me that the thousands of medical professionals who are members of the AMA, the APA, the AAP, the ASA (Oh, please don't make me list them all) disagree with this conclusion and have been just sitting silent for 30 years? Please.

Your second and third paragraphs are ridiculous and offensive to critical thinkers everywhere.

Me thinky you just don't like the gay.

Potty mouth.

Sophia's Favorite said...

It's Sophia's Favorite, not Sophia, Prat. And no, I'm telling you that most members of the various organizations simply assumed there was a good reason the DSM was changed, they didn't bother to look for the rationale (and thus find that there hadn't been one). Let us leave to one side that those various associations generally only account for a fraction of their profession—or did you not know that?

My second and third paragraphs are merely reminders that human beings are animals, and that therefore their behavior can be analyzed by evolutionary criteria—criteria by which homosexual behavior can barely even be analyzed, so comparing it to mating (which is evolution) is a joke. And "critical thinkers"? Please, how would you know what critical thinkers are offended by, or find ridiculous?

You are a hard-wired brainwashed little fanatic, overcome with an attack of the vapors when something in science threatens your irrational dogmas.

Your last line...is that supposed to be funny, your sad attempt at Chinese Pidgin (the only pidgin that adds a "-y" after a consonant)? Because aside from being racist, you didn't even get it right; Chinese Pidgin uses "My", not "me", for the first-person pronoun, e.g. "my can catch them you three days".

Jackass.

Pat said...

Soph-

I bet you're a real joy to come home to after a hard day at the office.

-Patrick

Sophia's Favorite said...

Not only racist but misogynist, I see.

But I'm a dude.

Come to think of it, if you could read, you'd have realized that "Favorite" has a neuter implication, and "Sophia's" is an adjective.

Then again, considering that you've just demonstrated you would address someone using the handle "Billy's Mom" as "Billy" and assume they were male, I suppose we should just be impressed that you've managed to get this long without eating from a bottle with a skull on it, and not get too annoyed that you can't formulate a meaningful thought.

Sand Mama said...

Everybody is clear that this is just the opening salvo, right? All the re-assurances that nobody is going to be 'forced' into doing anything they don't believe in went right out the door with DOMA. Churches need to start thinking and talking strategically about changing the way they handle marriage (provide ONLY a sacramental marriage?) because it is just a question of time before the lawsuits begin.
In the UK, a male couple is gearing up to sue the Church of England so they can have a church wedding (http://www.cbn.com/cbnnews/world/2013/August/Gay-Couple-Sues-to-Wed-in-Church-of-England/). We are minutes behind...

Pat said...

Soph-
This is boring.
Misogyny? Hmm, I guess in your world only men work outside the home. Well, at least that's consistent with the rest of the picture you've painted of yourself.

Pat said...

Oh, and Soph? I misspoke when I said its been 30 years. It's been 40. FORTY years.

ALL major medical and mental health organizations agree that homosexuality is not a disorder, including but not limited to:

American Psychological Association
American Psychiatric Association
American Medical Association
National Mental Health Association
American Counseling Association
American Academy of Pediatrics
American School Health Association
National Association of School Psychologists
American School Counselor Association
National Association of Social Workers
School Social Work Association of America

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