Whether you can or can’t is contingent upon the law in your state.
However, under NM law you may and likely would violate the statute.
any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services . . . to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation[,] or physical or mental handicap
It would seem to be you are refusing your services on the basis of religion by refusing to photograph a wedding of Pentacostals, Baptists, Muslims, Protestants, or some other religious denomination or people belonging to a different religious denomination.
You may even be refusing service on the basis of religion by refusing to photograph the weddings of non-religious people, such as atheists.
“I’m not forcing you to do anything, but if you DO offer to do it and then decide not to (for a discriminatory reason), I’ll kick you in the nuts.” doesn’t sound too bad to me.
I mean, that’s what we’re actually discussing–people voluntarily offering a service (in this case even making a contract for same, and then at some arbitrary point cancelling it) but refusing specific customers because of a legally actionable discriminatory reason.
No one’s being forced to do anything they wouldn’t ordinarily do. They are being forced to do it FOR someone they wouldn’t ordinarily want to, who differs from a customer they would accept in a way that should not matter in the slightest. It’s a subtle but absolutely crucial difference.
There was no contract in this case. They asked the photographer if she would shoot their commitment ceremony, and she refused because it was a same-sex couple.
Yes, that is in fact how a person would determine which photographer to hire. Do you believe that any monkey with a camera is just as good as any other?
Let me ask you this, suppose this Elane Photography went to the site of the ceremony before hand and sets up cameras. Suppose a timer is set to take a picture every few minutes. When these random shots are developed, they are delivered to the client. Would you say they have fulfilled the contract, or is a more personal (artistic/expressive) service required?
I maintain that this is a mirror image of censorship. Censorship would be a punishment for including certain elements in some artistic work. This Elane is being punished for excluding certain elements. Without making any subjective judgement on the artist or the art produced, I can’t say I like the general compulsion in art production.
Well, given the context in which you made the remark, your reasoning strongly suggests it. If you want to clarify or qualify your original remark, fine, but given the context in which you made the original remark you certainly do suggest what I provided as a parallel example.
We aren’t discussing mere artistic endeavor but speech and expressive conduct. Some people have qualified this as artistic speech or artistic expression but this does not diminish the elements of speech or expression. Whether ceremonial photographs by a hired professional are or are not primarily an artistic endeavor is irrelevant. The issue is whether the photographs constitute as speech or expression by the photographer or if there is any speech or expressive conduct at all.
Quite possibly, yes!!! When people see amazing pictures they are known to think or comment, “Wow those are fantastic pictures!!! Who took these pictures?” Or they may think or comment, “Wow, that is a fantastic shot. The photographer did a great job of capturing (whatever it is in the photograph).” When our friends viewed our engagement and wedding pictures they commented about the quality of the photos and inquired of us as to who took our engagement and wedding photos. We gave them the name of the photographer and they used the same photographer for their engagement and wedding photos.
I think you missed the point I was making in citing those cases. I didn’t cite them because they decide this precise factual issue for us. I cited them because each of them affirm the principle the government cannot compel people to speak or engage in expressive conduct and this is especially for for speech or expressive conduct the person disagrees with.
If Elane Photography does engage in expressive conduct or speech when she takes engagement or commitment pictures, as I believe she does, then the government cannot compel her to take these pictures to comply with the anti-discrimination law. Unless, of course, the Court or some appellate court finds A.) State/government has a compelling state interest in prohibiting discrimination in public accommodation, including public accommodations in which people would be forced to engage in expressive conduct/speech and B.) The law is narrowly tailored. (This assumes we have expressive conduct by the photographer but I believe we do and hopefully, the federal courts, and the U.S. Supreme Court, will decide this issue for us).
I haven’t read every single post in this exchange, but this seems like a warped reading of the situation to me. She’s not being punished for leaving out certain elements in her artwork. She’s being punished for refusing to do business with certain groups of people. The issue would be the same if she were a tax attorney, plumber, or non-artistic profession of your choice.
I can’t say that she does refuse to do business in general with gay people. She does not wish to accept the commission for this particular type of ceremony. I also believe that since photography is an inherently artistic endeavor, it is different from a non-artistic profession. Art is expression.
IMHO - while I might appreciate the artistic quality of the photographs, its going to take quite a leap (in a wedding/ceremony situation) to decide that the quality is somehow indicative of that persons ‘feelings or position’ on the subject at hand - gay marraige./commitment, etc.
IOW, I will judge the competency of the photographer based on the content of the photos, but I do not think I would - usually - judge what the photographer ‘believed or supported’. (unless they clearly went to some length to make the quality of SSM photos clearly worse/better than photos at a ‘traditional’ wedding)).
Clearly, there are some cases where teh quality/type/content of a photograph specifically speaks to the artists voice - but those are generally not the ones done for “hire”.
None, as far as I’m concerned. I’ve been to nearly 40 weddings in the last 10 years and looked at just as many wedding albums and they’re all more or less identical. Including mine, although my wife is of course much hotter than any other woman in the world.
That’s beside the point, though; a hotel is just as capable of expressive conduct as a photographer. Why should the latter get special treatment?
Her exact words were “we photograph tradiitional weddings” and “we do not photograph same-sex weddings.” You are insisting on a distinction without a difference here.
She and her husband are photographers for hire. Clearly there are both artistic and non-artistic elements here.
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No, but I also don’t think Motel 6 is as good as the Waldorf-Astoria. The same is true of any commercial enterprises; some are better than others.
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Either any monkey with a camera is as good as another or they are not. :dubious:
Please see my post #445 for a hypothetical, and let me know what you think.
She can express herself any way she wants. It’s when she decides to exchanges services for money that she stops being an “Artist” and starts being a “Artist for Hire”. Once you do that, you make an agreement with society at large. You are free be discriminating in the jobs you take, but NOT based on a few clearly defined factors like race, sex, religion and sexuality. If you can’t suck it up and accept jobs without discriminating on those factors, don’t go into business.
Nobody is forcing these people to be professional photographers for hire, it is their choice.
There are artistic photographers who go out into the world and take images of things/people, and then sell these photographs to the public.
There are commercial photographers who contract with a client to take pictures of a specific person, item or event. These photos may or may not contain artistic elements, but the primary purpose is to document the person, item or event.
These folks fall into the latter category. They offer a service to take photographs of an event/person. If they refused to take photos of a gay person in the course of artistically photographing things/people in the world for later re-sale? No problem - it is their free choice.
However if they offer a commercial service to the public, and refuse service to someone in a protected class because they are members of that class? No. They cannot do this, as it is against the law.
That it’s not just art, it’s also business. She’s not being required to photograph things a certain way or take particular pictures. She’s being told her business cannot discriminate against classes of customers. This would be a non-issue if there were no commercial aspect to her business and she was taking pictures at weddings only because she enjoyed it.
They had a contract?