What’s the distinction between a photographer and a dress store?
It’s not clear that that’s the argument she’s made. Anyway, that’s only part of the question. See above.
Is the dress store engaging in expressive conduct which is protected as free speech under the First Amendment?
Perhaps a dress designer (Vera Wang et al) could argue that there is some particular artistic expression involved in their work? The argument would be that being hired to design a dress is different from selling a dress off a rack. Right? Wrong? It’s up to the courts to decide.
Of course it was not First Amendment grounds that SCOTUS relied upon in upholding the Civil Rights Act. They leaned on the Commerce Clause to uphold the authority of Congress to implement the law. The litigants made arguments based upon Fifth and Thirteenth Amendment grounds, but not First. The test cases revolved around restaurants and hotels.
Expecting that existing law be enforced is not a political statement.
Only inasmuch as accepting illegal discrimination and doing nothing would also have been a political statement for this couple who simply wanted their celebration photographed.
Well put.
This is the part that some folks in this thread just don’t seem to be able to grasp; the distinction between a business that serves the public and a business that does not serve the public, but rather caters to a specific restricted group (eg church congregation)
That’s not the point. There is no federal statute at issue here. The question is whether the state law is valid as applied to the photographers. The underlying case was decided under the provisions of the New Mexico constitution.
In a sense, yes, but this whole artistic expression issue is a non-starter.
Well, I hope NM takes a page from its own playbook, since they’ve been rejecting same-sex marriages for the last 5 years (since it’s been at play in NM politics). Or the last 150. Whatever.
The OP asked of Christians should be forced to photograph ‘gay weddings’. It wasn’t even a wedding.
The state of NM is asking Elane Photography to do what it refuses to do itself, and that, to me, aids in the ‘compelled speech’ argument. That’s why I said the commitment ceremony was in itself political (to the photographer). If there is a government interest in making Elane Photography cater to everyone, then perhaps they should start handing out marriage licenses to same sex couples.
New Mexico isn’t forcing anyone to do what it won’t. It isn’t requiring qualified officiants to perform gay weddings. Moreover, the state is itself required to provide accommodation to citizens without regard for sexual orientation, just as it is requiring this business to do.
I agree that as a point of logic it makes little sense to deny marriage rights to gay people while granting them protected status in other areas, and more than likely one of its courts will soon apply the relevant provision to fix that.
Feel free to read the NM Constitution, then.
But to say that New Mexico can circumvent the U.S. Constitution is just wrong.
Huh? Of course they should. What bearing does that have on enforcing their existing anti-discrimination law? You remain consistent in arguing that New Mexico shouldn’t enforce their anti-discrimination law, and now you’re saying that you hold that position because they don’t yet have marriage equality. So, until a state has marriage equality, they are wrong to provide any protection against discrimination towards LGBT people?
Your “argument” (and that term is a very generous one) has descended into flat-out incoherency.
But Elane Photography was asked to film a commitment ceremony.
One not recognized by the state.
And even if it were, you’re still compelling her to speak, which would be a violation of the First Amendment. And businesses do enjoy First Amendment rights, as do photographers. What will happen with the courts as this proceeds remains to be seen, but it’s not inconceivable that it won’t end up before SCOTUS.
I’m sorry if you’re failing the comprehension test, mister nyx. It would appear this isn’t your thing. The irony aids to my irritation, but again, you seem to be missing the very valid point that the state of New Mexico has quite possibly violated Elane Photography’s First Amendment rights.
You can’t act an anti-discrimination law that violates the other liberties of citizens without a vested governmental interest. What’s the governmental interest here? Compelling Elane Photography to speak for something that doesn’t exist?
So what? The state doesn’t recognize any commitment ceremony. If you lived in New Mexico and had a commitment ceremony, there would be no formal recognition of that, either (I’m assuming you are heterosexual).
I agree, as I said above, that this could be deemed “compelled speech”. I don’t agree that it is, for reasons I’ve also outlined in detail above.
I did, thanks. I’m fairly certain you have misunderstood both my and Iggy’s posts in the discussion you are quoting from, but out of curiosity, what federal statute do you think New Mexico should be applying that it isn’t?
Since no one’s come up with a particularly compelling argument for that – and it seems to me it would have come up in the court decision had the photographers’ lawyers thought it to be a plausible argument given that the several states are bound by the U.S. Constitution – I am perfectly happy to ignore your personal, private interpretation of the Constitution.
To paraphrase myself from another thread, you’re basically saying, “If only the Constitution said what I wanted it to say, this would be totally unconstitutional!”
One more try…
Elane Photography was asked to take photographs of an event. They are in the business of taking photographs of events. They advertise this service to the public. “Hey public, we will take pictures of your events for a fee!”
This means they are a public accommodation.
From here it follows that they are not allowed to deny their public services to someone in a protected class.
They denied their services to someone because they were in a protected class.
They are therefore in violation of the law.
The First Amendment is not applicable here, no matter how much you keep saying it is.
First - she’s a photography business. Second, Civil Rights law does not say that every black person must always be served or every female must always be served. It says you can’t deny them on the account of their sex/race/etc. There’s a fine line there.
While that’s not the most compelling argument (though it was made by Elane Photography)* the fact that photography has been regarded as speech is. Not surprising, it’s also an argument of Elane Photography’s lawyers. They may be Christian and they may vote differently than us, but they aren’t morons. You can object to the morality of the laws or injustice, but that’s not the point here.
Whether a higher court will reject a lower court’s opinion is yet to be seen. You can say, “I’m right and you’re wrong, NEENER NEENER!” but the issue is not clear.
That’s your opinion. I disagree. I’m not going to revisit this another 100 times, however. If you’d like to have the last word, go for it.
The defendants’ lawyers did argue it, and it was discussed in the decision:
[QUOTE=New Mexico Human Rights Commission]
Elane Photography additionally argued that it was exempt from the application of Section 28- l -7(F) ofthe NMHRA to it, because the provisions of First Amendment of the United States Constitution relating to the right to free exercise of religion and speech, a s well as similar provisions of [NM law], took precedence over the NMHRA in this instance. Elane Photography asserted that, in refusing to provide photographic services to Ms. Willock… [it] was acting in a way which was consistent with her religious beliefs and was exercising her right to free exercise of religion and expression under the First Amendment ofthe United States Constitution… and, thus, Elane Photography was exempt from the [NMHRA].
[/QUOTE]
<snipped some bits from the above section for clarity and brevity>
By way of explanation, this was an administrative proceeding, not a judicial one (administrative tribunals are part of the executive, not the judiciary). Administrative courts generally do not have jurisdiction to consider constitutional questions, where state or federal. In other words, this court doesn’t have the authority to strike down laws on constitutional grounds, so it doesn’t need to consider them, other than for purposes of the record.
Their decisions are reviewed on appeal by state appellate courts (or, less commonly, state trial courts). Constitutional issues raised in the underlying proceeding are considered there, if appropriate.
The court did address the SCOTUS holdings I discussed before, that this law is of general applicability and justified by a compelling state interest.
And New Mexico should recognize same-sex marriage. So should every state. That’s not relevant to the issue, though. The issue is that the business is discriminating against gays and lesbians.
A line Elane Photography stepped across when they confirmed “we do not photograph same-sex weddings.” That’s a denial based on the identity of the participants rather than, say, other business commitments or a lack of available photographers.
Interesting, thanks for the info.
Same sex weddings don’t exist in New Mexico. Of course they don’t photograph them.