This is clear bullshit. Not only have you not made anything resembling an actual legal argument, a New Mexico court has apparently decided that this photographer did violate state law, and so your references to the U.S. Constitution and federal law are just weaseling.
You can have your opinions about the merits of the law – and clearly you do – but you have not been making an argument about what the law actually states.
There is no weaseling. It’s perfectly acceptable to mention federal law and SCOTUS cases about the First Amendment. If it isn’t, then someone please take my teaching license away.
Also, if you don’t mind, please provide cites for all of the times you have cited law in this thread. I think about three people have actually cited cases, so I guess anyone who provided cites for things that have passed or posed objections to a thought process must just be weaseling. That’s about 99 of us in a 13-page thread. :rolleyes:
I have already said what I feel the merits of the law are in regards to same sex marriage. I also expressed what I feel the law says now. You, on the other hand, just whined.
No, I don’t. Those are two entirely unrelated issues. Perhaps if you could explain how they’re remotely similar?
You’ve never heard of condoms?
The lack of a federal law on this issue does not mean that a state law can’t exist. If you really, honestly don’t understand that – rather than just having made a lame attempt to weasel out of an argument – than someone really should take your teaching certificate away.
I haven’t made any legal arguments either. But unlike you, I’m not pretending I did. There’s no reason for me to cite the law.
Nope. It’s only the ones who falsely claimed they were making legal arguments when they hadn’t done so. So far, I count one.
You have in no way advanced any sort of argument about what the state law that was applied in this situation actually says. You made a vague reference to U.S. law that is irrelevant as that was not what applied in this situation. If you think you have a legal argument to make, then bone up on New Mexico law and explain why the jurists who made this decision were wrong. Since there is approximately zero chance of you doing so, I can rest in comfortable assurance that when this thread is over and done, you still will have made no semblance of a legal argument.
Pointing out the pathetic holes in your argument is not “whining”, silly.
Well, if you don’t understand that state law isn’t the final say-so, then I’m glad you don’t have a teaching certificate.
Do you think the state law is somehow unconstitutional? Want to elaborate on why you think the state law isn’t the final say so?
My church’s hall is married-in-the-church-building-only…wil that be ok for “Catholic-weedings only”?
Then why do states even have laws? Or courts? Or law enforcement agencies?
I refuse to believe that you are really, honestly stupid enough to think that this is an argument. States laws illegalize many, many acts that are not illegal under federal law. If you don’t understand that, you should not be teaching anything. State and local antidiscrimination laws that apply to LGBT people have existed for years and years. They are not unconstitutional (and if you want to advance the novel argument that they are, you will have to actually make a legal argument. You know, where you talk about the law and stuff.)
This thread actually goes on for quite awhile if you want to have a peek.
Hurley has been tossed about in this thread a lot, and even though the NM court cited it, it doesn’t mean you can’t argue that it shouldn’t have gone the other way. I’m also not sure why you want me to repeat Notre Dame’s posts.
Oh, the “I’m not calling you stupid but I am calling you stupid” thing.
You can start on page 4.
It is possible to oppose law or a decision based on its merits (like my concerns about freedom of religion) and also based on what you already know or understand to be the law (in regards to compelled speech). But while I’m at it, I’m 100 per cent uncomfortable with compelled speech. If I am a painter for hire and you want me to paint a photo of your Flying Spaghetti Monster and I don’t want to, I really don’t want to be sued for it. I really value my freedom of association. I also think there’s a distinction between not photographing same sex ceremonies in a state that doesn’t allow gay people to marry and just refusing to photograph gays, period. I wasn’t aware that I had to cite legal precedent for that. :dubious:
I’m not a lawyer. I said that. I like the Dope because I learn things and I can exercise some muscle. You can see my train of thought throughout the thread.
If you want to make this personal, open up a Pit thread about me.
If you want to be picky about what you paint, don’t set yourself up as a business open to the general public.
For example, I work with concept artists a lot. Each deal is unique. Terms are spelled out in advance, with a statement of the scope of work described in a contract.
Artists like that don’t have a storefront. They don’t have a sign up in the window saying “Pictures painted! $300!”. You can’t just walk in off the street and buy a standard art package off a list. They’re not a public accommodation. And so, they can pick and choose what they work on for any damn reason they want. (Although, in general, since most of them are professionals, they’ll make a good faith effort to deliver on whatever it is the client wants.)
Or there’s this guy I know who’s a food photographer. He had a studio in his house and shoots pictures for magazines. He doesn’t advertise to the general public. He just works with a list of clients that he’s built up over the years. No one can force him to come over to their big gay wedding and take pictures. He’s not operating a public accommodation.
However, if you set yourself up as a service that *anyone *can avail themselves of (even if you’re doing something artistic), then you can’t turn around and refuse work from someone who’s a member of a protected class.
Well, I’ll be taking that license, because as others have explained, we’re not talking about federal law. We are talking about the law of an individual state whose constitution provides protections that the federal constitution does not.
If you want to argue that New Mexico law should mirror federal law on the subject, then you can quote federal law and SCOTUS all you want. However, you aren’t arguing that, as you said yourself in the first quote above.
If you want to argue that New Mexico law should be trumped by the Federal constitution, you can argue that, too, and that’s a reasonable argument. Clearly, there’s a balancing test involved. However, this appears to be a religiously neutral law and thus the state need not demonstrate a compelling interest to defend it. Even if it did have to, the State of New Mexico has clearly decided that its public policy is to prevent discrimination on the basis of sexual orientation, which is a pretty damn compelling interest.
This is really no different from a state law prohibiting polygamy without respect to sincerely held religious beliefs on the practice.
What, in your opinion, is “the smaller scope of the law” here?
Re-read my comment…you said “public places” but I did not say “public places” in my quote. You are confused, not me.
If there is any way we could force a few Christians to come mow my grass this weekend, I’d really appreciate it. I’m not gay, personally, but I think the guy down the block might be.
This is not true if you are a photography business like Elane Photography. If you are a photography business like Elane Photography then there is a good likelihood you would be in violation of the NM law. Especially considering language from the decision in which they take a very broad and expansive view of “public accommodation.”
Of course, you can conveniently retort you do not include in your hypothetical the fact you were advertising a photography company for only “Catholic weddings.” Yet, given the context of this thread, which is the facts the decision, you less than well defined hypothetical left much to be desired and of course the reader was forced to fill in the facts. After all, nobody can tell from your hypothetical whether you are discussing a business or not. So, I chose to assume a fact which is fundamental to the case being discussed, a photography business.
You can hopefully forgive me for being too presumptuous in my endeavor to fill in the lack of information in your hypothetical?
Six years is “too long to decide a case” because you say so? No, and the fact is there are a plethora of other reasonable alternate explanations to account for the 6 years. Those alternate reasons are individuals not having the money to initiate a lawsuit, other people not being aware they have a possible viable legal exception to the law, and finally, the passage of 6 years quite simply has absolutely nothing to do with whether a case is “cut and dried” or not.
Your non-sequiter aside, I have never asserted or been pretentious about this case having a clear and easy answer. I have stated, more than once, there does exist “counterarguments” to my position, the Court has never decided this precise issue, and this MIGHT constitute as a free speech violation.
So, despite your unmitigated efforts to strawman me ad nauseum, I’d appreciate it if you ceased making arguments for me and equally stop making incorrect allegations regarding how I have characterized this argument. It isn’t conducive to having a productive dialogue, it isn’t accurate, and a waste of your time and mine in discussing it.
Well, the New Mexico Court of Appeals never asserted there wasn’t speech or expressive conduct under these facts. They admit there is speech. However, they cite cases which do not remotely support their position as they suggest. They reach a rather intringuing and paradoxical conclusion.
As I noted previously, a common theme between the 1st Amendment jurisprudence and copyright jurisprudence for photographs is the element of speech and expression. To receive 1st Amendment protection under the Speech Clause requires speech or expressive conduct and to receive copyright protection, including photographs, requires speech or expressive conduct. In a preceding post I noted the U.S. Supreme Court and federal appellate court decisions listing the factors constituting as expressive conduct by photographers, i.e. the photographer does have an expressive message, i.e speech of the photographer.
Interestingly enough, the NM appellate court mentions some of them but then reaches the odd conclusion it isn’t speech of the photographer.
While Elane Photography does exercise some degree of control over the photographs it is hired to take, in that “it decides which pictures to take, which pictures to edit, and how to edit them[,]” this control does not transform the photographs into a message from Elane Photography.
According to the case law I have found regarding copyright, it most certainly is speech and expressive conduct of the photographer.
Perhaps but this isn’t the issue and it is not germane to what we are discussing.
I’m not sure if I understand what you mean by “married-in-the-church-building-only”.
If you mean that ONLY those who have an actual marriage ceremony in your church (which ONLY marries members of the congregation, or those who share congregant’s religion), and does not advertise to the public are subsequently allowed to have a reception in the Church hall… and if they are consistent in upholding this rule…
Then I think that the Church hall is NOT a public accommodation because it does NOT offer to rent it’s services to the public and does not advertise itself as being available for rental to the general public.
This means they do not have to rent the hall to a couple who were not married in their church.
This seems simple enough.
The is pretty clearly the argument that Farmer Jane has made - 1st Amendment trumps NM law. There should be nothing surprising about the idea that federal constitutional rights take precedence, assuming incorporation under the 14th Amendment. Roe v. Wade found a constitutional right that trumped the state law of many states.
The question for Johnny Roberts and the Supremes is if Elane Photography has a 1st Amendment right not to be compelled to provide their services if their photography is expressive speech.
(Bolding added by me)
I don’t think every, or even many, gay people want to get married as a political statement. That being said, taking a photographer to court to demand their artistic (expressive) services be provided is a political statement. Similarly, refusing to shoot the ceremony is a political statement.
As far as the rights of various minorities, I think that is the issue here. Someone will be denied their rights. Both sides have rights, but one must outweigh the other.
Personally, I do not agree with an artist being compelled to engage in production of any artistic endeavor. There are some claims that their right not to accept some particular job are limited by the fact that they are a business. I can understand that point, to a degree. I would not agree that their right is completely eliminated. I do see a distinction between “I don’t shoot gay people.” and “I do not shoot same sex commitment ceremonies.”
I see that some people disagree, which is fine.