So you’re saying Ansel Adams and the poorly dressed, pimply-faced kid with the puppets and the pungent pits at the JC Penney portrait studio are artistically equivalent? Oy. Well, to each their own, as the kids say nowadays. Regardless, if you carefully reinspect my post you’ll discover that I don’t claim photography is not artistic work. I instead pointed out that its artistic nature did not make it in some way exempt from the laws under which such businesses must operate in the state of New Mexico.
The government didn’t step in and force the staff at Elane Photography to photograph the ceremony. The government simply penalized the company for violating the law, which is sort of what we hired them to do.
Keeping with the wedding theme wouldn’t this then exempt from non-discrimination the hairdresser, flower arranger, invitation printer, table arrangement… arranger, and the band? Along with any wedding planner?
Allowing a business exemption on the basis of “art” when it is a service for hire (rather than an artistic good) would seem problematic to me.
No, they shouldn’t. And reasonable people who don’t believe in invisible men in the sky who want to choose not to sell hamburgers or comic books or manicures to Christians and other bigots in order to punish them for being evil should also not be forced to compromise their own beliefs. I’m sure you’re fully on board with that freedom of conscience too, right?
Must the pictures be displayed in a museum or in a magazine for artistic expression to exist in a photograph? I think this principle is untenable. What does displaying the photograph in a museum and magazine have anything to do with the question of expression in the picture? So, we have two photographers, A and B. Both A and B go to Africa and take pictures. They controlled who was in the pictures, how the people appeared in the pictures, what appeared in the pictures, the lighting, and editing over the pictures. Person B’s photographs appeared in a magazine but A’s did not.
Now, according to you, B’s photograph have expression on the basis they appear in a magazine but A’s do not because they do not appear in a magazine? The only thing distinguishing the pictures is B’s photographs are in a magazine but A’s are not. This does not make a lot of sense.
A parallel speech argument would be two people write a manuscript for a book. Person A is successful in having his manuscript published as a book but B is not. According to your reasoning, Person A has engaged in speech but person A has not, on the basis Person A had her manuscript published but person B did not.
Whether there is speech or expression in some work, such as photographs, writings, etcetera, is not based upon this untenable notion the speech or expression has to have some public exposure in a magazine or museum.
Well, it might, because the 1st Amendment Free Speech Clause prohibits speech compulsion. The state and federal governments cannot force people to speak, cannot force them to engage in expressive conduct, and certainly cannot force them to speak or engage in expressive conduct when they disagree with the message. If taking photographs constitutes as expressive conduct on behalf of the photographer, then this law compels her to engage in expressive conduct, to speak, which is not permitted under the 1st Amendment Free Speech Clause.
Wooley v. Maynard, 430 U.S. 705
West Virginia v. Barnette, 319 U.S. 624
Pac. Gas & Elec. v. Pub. Util. Comm’n of Cal., 475 U.S. 1
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557
The exemption is not because it is “art” but because it is speech, expressive or otherwise. The 1st Amendment Free Speech Clause prohibits the federal and state governments from forcing people to speak or engage in expressive conduct. If taking these pictures constitutes as expressive conduct on behalf of the photographer, which I think it does, then she cannot be forced by this law to take pictures when she disagrees with the message and does not want to speak the message.
A parallel example would be the KKK requests the services of a black photographer and his business to photograph a clan rally. The black photographer refuses on the basis they disagree with the message and expressive conduct of the KKK. The KKK alleges it is because of race, and in this instance the black photographer is known to dislike white people and belongs to an organization espousing black superiority. Now, in my opinion, the black photographer cannot be compelled to take those pictures because doing so constitutes as speech and expressive conduct on behalf of the photographer and he cannot be compelled to speak or engage in expressive conduct, especially ideological/speech on important societal issue.
Someone at the NM chapter of a gay rights organization decides they want a new brochure to distribute in a fundraiser. The chapter president sees an ad in the yellow pages and calls up a business which advertises services as a freelance creative writer. The gay right group representative requests a quote for writing the copy designing the mailer.
Can the copy writer refuse the job citing conflict with deeply held religious beliefs?
How is this substantially different, if at all, than the issue with the photographer?
OK, so which constitutes “speech, expressive or otherwise”? The hairdresser, flower arranger, invitation printer, table arranger, band, and/or wedding planner? (Non-American, non-lawyer question; just interested to know).
If I provide the band with a list of songs to play and pay them to play are they engaging in their speech or my speech? If I give the printer the words to put on the invitations? Or ask the cake decorator to write “Congratulations Bob & Steve”?
Are flower arrangements speech? (Not being facetious; it seems reasonable to me that a message could be sent using flowers and their traditional meanings… and that’s aside from any advertising suggesting that I should “say it with flowers”).
Does is matter if I tell the florist what I want, or conversely just ask them to “do something they think I’d like”?
I can see what you’re saying about not compelling speech… I guess it just seems that this could easily lead into a wide range of businesses claiming exemption from non-discrimination laws on those grounds.
You know what? - the way in which the question is framed turned out to be significantly affecting my view - IMO:
“Should Christians be forced to photograph gay weddings”
is just not the same question as:
“Should businesses be punished for having discriminated against customers on the basis of sexual identity”
And I’m not making a 'rich and poor can sleep under bridges… etc" argument here, but rather, the notion of whether the law will forcibly compel someone to follow through with a specific course of actions, or penalise them after failing to do so, is an important factor, at least in my emotional and intellectual grasp of the arguments.
It can be argued, of course, that penalising someone for not doing something is somewhat equivalent to forcing them to do it - and I guess if the penalty is absurdly large, that’s maybe true.
But yeah, whilst I have said in this thread that I don’t like the idea of government explicitly choosing the products a business must offer, but on balance, I’m OK with government saying “you denied service on the grounds of X, which you cannot with impunity do, if you choose to operate in the real world”
So in summary, Christians should not be forced to photograph gay weddings, but may be penalised for refusing to. That’s not as contradictory as it sounds.
On a side note, I wish I could ask GEEPERS what would be so soul-polluting about watching men kiss one another. If watching Brokeback Mountain is sinful, isn’t it also sinful to watch anything else that depicts murder, adultery, theft, etc. Best just walk around with your eyes shut.
More like having blinders on.
But seriously people, it’s only sex. There are many more significant and damaging ways in which persons interact with the community at large that deserve censure.
I think that refusal to provide services to any reality TV “star” should not only be Constitutionally protected, but actively encouraged.
Of course not. People take amazing artistic photographs all the time that are never published anywhere. However, they are not being paid by a client who answered an advertisement offering that service to take those specific photographs for that particular client’s use. Ceremonial photographs taken by a hired professional are not primarily an artistic endeavor. Consider this: When Mary Q. Public sees the photographs of her cousin John’s wedding, does she think, “Man, that guy Rory von Beecker, MFA, is an amazing photographer?”
You’re right, that doesn’t make sense. It’s also not what I said. Try again.
A more apt speech hypothetical in keeping with the issue at hand would be that A and B have been hired to write your resume. A writes you a concise, professional and descriptive resume which bags you that job as an attorney for Mason, Burger and Tragg. Person B, OTOH, refuses to write your resume at all because you are obviously a papist.*
I’m no lawyer. I have an 8th grade education and a couple years of random college courses, but I’ll do my best. I took a look at the cases you listed and I suppose an argument that this case is similar could be cobbled together by a team of attorneys. However, a team of attorneys seems to be able to cobble together almost anything into an argument, so I don’t think that speaks to its validity. In brief (heh):
[ul]
[li]Wooley v. Maynard, regarding the legality of criminal sanctions on people who cover the “Live Free and Die” slogan on passenger car license plates because it “is repugnant to their moral and religious beliefs.” Halfheartedly, the Court affirmed that the State of New Hampshire can’t prosecute people for covering the slogan. I’m not sure how this is comparable to the issue at hand. License plates are neither a product offered for sale on the open market, nor are they a tool of artistic expression (unless you count vanity plates).[/li]
[li]W. Virginia v. Barnette, regarding whether the school district must stop expelling and prosecuting/threatening to prosecute Jehovah’s Witness students who refuse to recite the Pledge of Allegiance. Affirmed, if I understand this lengthy document correctly, that the activities of the local authorities were in opposition to the First Amendment. (I don’t quite understand if that means they must stop expelling students, though. I’m so glad I’m not in law; it must be exhausting.) The Court did say[/li][QUOTE]
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
[/QUOTE]
I’d have to see the Court affirm that taking a photograph of a subject is tantamount to “confess[ing] by word or act their faith therein.” Do most people believe Nick Ut, who took that iconic photograph of the Vietnamese girl running from a napalm attack, endorses napalm attacks on civilians, or running, or nudity or even :eek: child pornography? I think most people understand that the photographer simply records the event, if they even consider the photographer at all.
[li]Pac. Gas & Elec. v. Pub. Util. Comm’n of Cal., regarding newsletters the PUC ordered PG&E allow to be inserted into customers’ utility bills 4 times a year. As far as I can tell, the California Supreme Court determined that PG&E should not be forced to provide “free space” in their billing envelopes to provide information from TURN (variously meaning Toward Utility Rate Normalization or “The Utility Reform Network: fighting for California utility consumers for over 30 years”), a requirement mandated by the PUC at a rate-change hearing.[/li][QUOTE=California Supreme Court]
The Commission decided that the envelope space that appellant had used to disseminate the newsletter was the ratepayers’ property, defining this “extra space” as the space left over after including the bill and required notices. In an effort to apportion this “extra space” between appellant and its customers, the Commission permitted TURN to use the “extra space” four times a year to raise funds and to communicate with ratepayers with no limitation except to state that its messages were not those of appellant. Arguing that it had a First Amendment right not to help spread a message with which it disagrees, appellant appealed the Commission’s order to the California Supreme Court, which denied discretionary review.
[/QUOTE]
The Public Utility Commission’s ruling was vacated. This decision would only be relevant here if Elane Photography had been required to send its customers periodic missives delineating negative aspects of photographers and/or their studios.
[li]Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, regarding a Massachussets court’s decision that a group of private citizens (veterans’ groups in this case) could not refuse to allow a different group of private citizens (a gay and lesbian group in this case) to march in a parade they had organized. The court held that the state courts could not use the Massachusetts public accommodations law to require private citizens organizing a parade to allow a group imparting a message that the organizers did not wish to convey, finding that such a requirement violates the First Amendment. Their ruling stated[/li][QUOTE]
Parades such as petitioners’ are a form of protected expression because they include marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Cf., e.g., Gregory v. Chicago, 394 U.S. 111, 112.
[/QUOTE]
I think that quote illustrates exactly why this ruling is not applicable in the case under discussion. When you march in a parade, you’re exhibiting yourself on a public stage as being in favor of whatever the parade is about, be it gay pride, honoring the dead, or opposition to sinister medicos creating people out of spare parts. I suppose if Elane Photography included its photos of the commitment ceremony in a public exhibition there might be some parallel, but there is nothing in this case that says they should be forced to do so.[/ul]
This, precisely—and you make it look so easy, Mangetout.
Not saying that you are a papist, of course, or that it would matter if you were, or even that anyone calls other people papists any more.
