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New Mexico Wedding Photographer Case

A while back, I blogged about the pending New Mexico case in which a wedding photographer who refused to photograph a gay commitment ceremony was sued for violating the state's antidiscrimination laws.  The case presented the question whether the application of antidiscrimination laws prohibiting discrimination on the basis of (among other things) sexual orientation to a photographer who is morally opposed to same-sex marriage violates the photographer's First Amendment rights.  

The New Mexico Supreme Court today issued its decision, holding that the First Amendment does not prevent a state from enforcing antidiscrimination norms against businesses that hold themselves out as open to the general public, even when those businesses offer services (like photography) that are artistic or expressive in nature.  Although I might have written the opinion a little differently, I think it reaches the correct result.  More details after the jump.

The photographer's most interesting argument was that her business is intrinsically expressive and that, as a consequence, requiring her to photograph same-sex couples amounts to government-compelled speech.  The court rejected this argument -- correctly, I think -- by observing that the enforcement of antidiscrimination laws neither forbids the photographer from speaking nor requires her to send any particular message.  The owner remains free to express her opposition to same-sex marriage or homosexuality in general.  

The photographer argued that third parties might think that, by photographing a same-sex commitment ceremony, the photographer was endorsing homosexual relationships.  But, as the court suggested (though I wish it would have been more explicit on this point) , this argument has a self-fulfilling quality.  If the law allows an owner to discriminate, observers are more likely to think that service constittutes endorsement.  (Even then, the court correctly observed that "[i]t is well known to the public that wedding photographers are hired by paying customers and that a photographer may not share teh happy couple's views on issues ranging from the minor . . . to the decidely major.") The possibility that observers will misunderstand service on equal terms for endorsement is diminished, however, when the law compels equal service.  That is, the existence of antidiscrimination law prevents the risk of the very consfusion the photographer was worried about.  As I said in my earlier post, one of the purposes of antidiscrimination laws is precisely to ratchet down the expressive significance of these kinds of commercial interactions.  Doing so both protects minority groups from, in the court's words "humiliation and dignitary harm," and protects the expressive freedom of those providing the service by emptying the service of expressive content.

The case leaves some interesting questions unanswered about the intersection between free speech and antidiscrimination norms.  For example, although the court said that the photographer remains free under the New Mexico antidiscrimination laws to express her opposition to same sex relationships, it seems likely that expressing those views in certain ways would amount to a denial of service on equal terms.  If, for example, she showed up at the commitment ceremony wearing a t-shirt that said "God Hates Fags," I think that would be the same as refusing to provide the service in the first place.  Or is she hung a sign with the same message on her door,  I think the same reasoning would apply, even if accompanied by a sign indicating that the shop complies with state antidiscrimination laws.  Whether the First Amendment protects either of these hypotheticals is an issue the court in the case did not get into.

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Commenting Guidelines

I recommend reading Judge Bosson's concurring opinion on pages 27-30 of he document linked in he original post. 

Let's give thanks that a bishop didn't file an amicus curiae brief in favor of the photographer.

From the concurring opinion: "The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead."

From the 1st Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Does the phrase "in their personal lives" appear in the 1st Amendment?

Your right to swing your hands and fists stops at the beginning of my nose.

Here's an article about some of the issues in this case.  Yes, I think there are many issues.  The question is:  which should be considered paramount?  I haven't made up my mind yet.  The argument about an animal-rights photographer photographing having to photograph hunting and taxidermy has  merit, I think.

http://www.christianitytoday.com/ct/2012/juneweb-only/is-it-legal-to-ref...?

The argument about an animal-rights photographer photographing having to photograph hunting and taxidermy has  merit, I think.

 

Ann,

I disagree. Hunters and taxidermists are not members of a class the state has found to be discriminated against and passed legislation to protect. Gay people are. An animal-righs activist and videographer would be perfectly free to refuse a job filming men hunting or taxidermists stuffing animals. That example has no bearing whatsoever on the case of the wedding photographer. I don't even see how it constitutes an argument. There are obviously many possible scenarios of the state forcing someone in a particular profession to take on a job that we would quite reasonably object to. That has nothing to do with antidiscrimination laws. In this particular case, there was a law prohibiting discrimination against gays and lesbians, and the photographer wanted to be exempt from that law, thereby providing an example of discrimination against gays and lesbians

I remember a story here in New York from quite some time ago when a landlord refused to rent an apartment to a lawyer, because "they're nothing but trouble." The landlord sued, and lost, because lawyers are not a protected class. The government doesn't take on the job of making sure that nobody discriminates against anybody. It doesn't take on the job of guaranteeing that hunters and taxidermists can hire any videographer they want. Government steps in when there is enough evidence that it decides a certain group needs legal protection. If hunters, taxidermists, or lawyers start suffering from real discrimination, then the time may come that they are made into protective classes. When that time comes, we'll have to wrestle with the issue of whether an animal-rights activist and videographer should be required to film hunting and taxidermy. But for the moment, the question is totally irrelevant.  

Why can't we just live and let love? Jimmy Roland says it best in his Gay marriage song Partners For Life in the HuffPost article: http://m.huffpost.com/us/entry/3497134

I've just realized that this is a decision by the New Mexico Court of Appeals, which is one level below the New Mexico Supreme Court.  The lawyer for the photographers says they will appeal to the state Supreme Court 

Wrong again. It is the Supreme Court decision. 

The Christinity Today article referenced above is from June and reported on the Court of Appeals decison issued in May. The Supreme Court has now upheld that decision. 

Well now, everytime I think I've finally just about gotten my morality barometer working well a topic like this one comes along and I am forced to wonder.  In as much as one is not required to have photographs taken at a wedding and the only important issue at a wedding is how the couple feel about each other.....well, I get confused easily.

Clearly Eduardo grasp is well beyond mine.  Perhaps that's one of the reasons he is blogging here and I am not?

Consider this question I read somewhere else today:  if one of the gay grooms was a photographer, and if he was asked to photograph the wedding of an anti-gay couple in a fundamentalist Christian ceremony, should the gay photographer have the right to refuse?

if one of the gay grooms was a photographer, and if he was asked to photograph the wedding of an anti-gay couple in a fundamentalist Christian ceremony, should the gay photographer have the right to refuse?

Ann,

How will answering your question above shed any light on the New Mexico case? Is the premise that if a gay photographer is permitted to refuse to work for anti-gay people, gay people don't have any right to sue anti-gay people who turn downjobs photographing gay weddings? For what it's worth, a gay wedding photographer should not have the right to turn down customers based on their religion alone, even if that religion teaches that homosexuality is wrong. But why specify Christian fundamentalists? The Catholic Church is anti-gay, too. 

 David N. --

ISTM this case revolves around a conflict between the political right of the gay spouses versus the religious right of the photographer.  The gay couple is basing their demand on their legal right to be served under the Civil Rights Act founded on the 14th Amendment while the photographer is claiming his First Amendment right to follow his religious conscience.  Because the religious right is included explicitly in the First Amend. while the right to be served is not explicitly in the 14th, it would seem to me that  the First Amendment  religious right would trump the other.  (Notice, I'm just considering what I understand is the law here.)

But what is the morality of this case?  (Does morality ever enter into legal decisions when the law is not clear?)  How much of a moral duty does one person have to respect the religious rights of another person?  In the present case it is not a question of respecting the other person's religion -- it's a question of respecting *him* and his *right to practice* his religion.  Is  this case simply a matter of  who is ingured the most or of whose feelings hurt most -- the person who has to go agains his religious conscience or the gay spouses who feel insulted by the photographer?  

Ann Olivier, in explaing the New Mexico decision, Judge Bosson pointed out that the laws that used to forbid interracial marriages were also based on sincerely held religious beliefs:

 

The Lovings, an interracial couple, had been lawfully married elsewhere and wanted to live openly as husband and wife in Virginia. For their honesty, they were prosecuted and convicted; their prison sentences were suspended on condition that they leave Virginia and not return for 25 years. The Virginia trial judge, in justifying the convictions, drew strength from his view of the Bible:

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with this arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” 

 

Whatever opinion one might have of the trial judge’s religious views, which mirrored those of millions of Americans of the time, no one questioned his sincerity either or his religious conviction. In affirming the Lovings’ convictions, Virginia’s highest court observed the religious, cultural, historical and moral roots that justified miscegenation laws....

There is a lesson here. In a constitutional form of government, personal, religious, and moral beliefs, when acted upon to the detriment of someone else’s rights, have constitutional limits. One is free to believe, think and speak as one’s conscience, or God, dictates. But when actions, even religiously inspired, conflict with other constitutionally protected rights—in Loving the right to be free from invidious racial discrimination—then there must be some accommodation. Recall that Barnette was all about the students; their exercise of First Amendment rights did not infringe upon anyone else. The Huguenins cannot make that claim. Their refusal to do business with the same-sex couple in this case, no matter how religiously inspired, was an affront to the legal rights of that couple, the right granted them under New Mexico law to engage in the commercial marketplace free from discrimination...

The New Mexico Legislature has made it clear that to discriminate in business on the basis of sexual orientation is just as intolerable as discrimination directed toward race, color, national origin or religion.... The Huguenins today can no more turn away customers on the basis of sexual orientation—photographing a same-sex marriage ceremony—than they could refuse to photograph African-Americans or Muslims.

All of which, I assume, is little comfort to the Huguenins, who now are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views....

In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship. I therefore concur.

http://www.nmcompcomm.us/nmcases/nmsc/slips/SC33,687.pdf

Judge Bosson dicusses other issues that I've skipped over in these excerpts, so you might want to read his concurring opinion on pages 27 to 30.

 

 

"There is a lesson here. In a constitutional form of government, personal, religious, and moral beliefs, when acted upon to the detriment of someone else’s rights, have constitutional limits."

JOhn Hayes --

I recognized that.  However, sometimes such conflicts are resolved on the side of religious freedom and sometimes they are resolved on the side of the other constitutional guarantees.  My question is:  how does the judge decide which side to come down upon?  Just repeating that sometimes religious rights must come in second does not answer *why* they must sometimes come in second.  Just to repeat that religious rights are sometimes limited does not base the decision on a principle of law.  What is the principle of law that tips the balance?

John Hayes --

Thank you for that quotation from the judge.  It makes the matter clearer for me.

In trying to weigh the two rights in this case, I ask myself:  what are the consequences for each side? It seems to me that the consequences for the two sides are *both* commercial -- if the gay couple loses they have to make a phone call to get another one, costing them 30 cents (?), while if the photographers follow their religious conscience they must give up their whole business.  It seems to me that clearly the latter would be a much worse outcome, so that the judge should find for them.

Again, this is a prudential judgment. 

Ann Olivier, it's a decision the state legislature made when it added "sexual orientation" to the state law defining classes protected from discrimination by a "public accomodation." The couple didn't argue that it had a right under the federal constitution to have its wedding pictures taken. 

21 states have similar laws. 

In this case, the photographers stipulated that they were a "public accomodation" otherwise, the judges would have had to decide that. 

Because of the state law, the photographers must do for a same-sex couple anything they offer to do for a heterosexual couple. 

 

The New Mexico State law says

 

28-1-7. Unlawful discriminatory practice.

It is an unlawful discriminatory practice for:

...

 

F.     any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation;

if the gay couple loses they have to make a phone call to get another one, costing them 30 cents (?), while if the photographers follow their religious conscience they must give up their whole business. 

Ann,

Why in the world do you say the photographers must give up their whole business?

The original incident took place in 2006, and Elane Photography has been in court over it ever since, losing at each successive stage. To the best of my knowledge, they are still in business and no other cases have been brought against them. The original "fine" of about $6000 was not a fine at all, but the lesbian couple's lawyers' fees. When the couple won, they did not seek any punitive damages, but asked only that they be reimburse for the money they had spent on on legal fees. Also, to the best of my knowledge, there have been no similar cases brought against wedding photographers in New Mexico or anywhere else.   

Your position seems to be that people who claim a religious objection should be exempted from antidiscrimination laws protecting gay people. John Hayes has listed the New Mexico statute above. What other protected categories do you think should be subject to discrimination based on religious objection to the law? Should white supremacists Christians be able to refuse to photograph African-American weddings? Should Christians be able to refuse to photograph Jewish weddings, and vice versa? Does <i>everyone</i> who says, "I seek an exemption on religious grounds" about <i>anything</i> have a right to get out of whatever it is they claim to object to? 

I think it is not perhaps the court decision you object to, but antidiscrimination laws that protect people because of their sexual orientation. Surely when the New Mexico statute was amended to include sexual orientation, the legislature was aware that it was very likely that if there was anti-gay discrimination, it would come from religious objectors. 

The New Mexico Supreme Court wrote:

Enforcing the NMHRA against Elane Photography does not violate the Free Speech or the Free Exercise Clause of the First Amendment or the NMRFRA.

As a practical matter, and aside from the award of attorneys' fees, what has been enforced as a result of this case? Since the case began in 2006, I assume that the marriage has taken place by now or has been canceled for other reasons, and that Elane Photography did not photograph it. Does this decision make it more likely that punitive damages would be assessed against the photographers for a second violation with other prospective clients? If not, what behavior changes?

John Prior, I think the message is that anyone who discriminates against same-sex couples is going to spend years in court and, at least, may have to pay the other side's lawyer's fees. If they are lucky, the ADF or Becket will be there to represent them, free, so they don't have to pay their own lawyer's fees. 

I haven't looked up what penalties there are under the law. If they are simply fines, there may be supporters who would subsidize them the first few times but I would guess that source would dry up, eventually. 

The court said there is no reason that they can not post their objections to same-sex marriages on their website - i could imagine  something on the order of "We are Christians and we believe that same-sex marriage is wrong. We are concerned that if we photograph a same-sex wedding some people might think that we support it. Therefore, we hope that you will respect our views and not ask us to photograph a same-sex wedding. However, the state requires that we treat all couples equally and, if you do ask us to do that we will photograph your wedding on he same basis as any other."

"I think it is not perhaps the court decision you object to, but antidiscrimination laws that protect people because of their sexual orientation."

David N. --

You're reading stuff into what I said.  My argument is only about conflicting rights, not about anti-discrimination laws of any sort.  I  support anti-discrimination laws.  But I also respect the First Amendment, and where the two clash it seems to me that one mustn't automatically enforce the lesser law -- and the civil rights acts are all on a lower level legally thana the FA.  

Also, morally I think it would be wrong to ask someone to violate their conscience to assist me when there are other people who would assist me in good conscience.  It would show a disrespect of their consciences, no matter how ill-formed they might be.   

Ann O.,

It does seem that the issues in this case have had a thorough airing. I don't know the legislative history of the New Mexico Human Rights Act, but it is likely that when it was amended to prohibit discrimination on the basis of sexual orientation, the proponents of the amendment offered evidence that such discrimination was significant enough to require a remedy. The legislature and presumably the governor agreed.

Then the issues in this specific case were argued at the New Mexico Human Rights Commission and all over again in three state courts, including the New Mexico Supreme Court. In particular, the protections for speech and religious exercise afforded by the First Amendment were discussed at length and found not to exempt Elane Photography from its obligation as a public accommodation. Maybe the case will go on in the Federal courts, possibly even reaching a different outcome. But so far, I think, no one can fairly say that the defendants have not been given a careful and thoughtful hearing.

As for your last paragraph above,

Also, morally I think it would be wrong to ask someone to violate their conscience to assist me when there are other people who would assist me in good conscience.  It would show a disrespect of their consciences, no matter how ill-formed they might be.

Elane Photography itself apparently did not see fit to offer that argument, so there was no question of a court considering it. And whether it was possible to find another photographer of equal ability and offering similar terms is not in evidence.

Also, morally I think it would be wrong to ask someone to violate their conscience to assist me when there are other people who would assist me in good conscience.

Ann,

Would you make the same argument if you were discriminated against on the basis of race, color, creed, or national origin? There were many people (still are!) who have religious objections to racial integration and intermarriage. Was almost 2000 years of anti-Semitism acceptable because Christians sincerely believed the Jews were collectively responsible fo deicide? Suppose I believe today that Jews are responsible for killing Jesus. Would you exempt me from antidiscrimination laws if I refused to photograph (or bake a cake for) a Jewish wedding? 

Also, is the government always obliged to exempt people from legal obligations if they say, "This obligation violates my religious beliefs?" What would government in the United States be like if each religion, or each person who claimed to be religious, got to decide which laws to obey and which laws were violations of conscience?

It would show a disrespect of their consciences, no matter how ill-formed they might be. 

So if someone believes he is saving thousands of lives by killing abortionists, we should show respect for his conscience? 

Peter’s response to the authorities who demanded that he stop preaching about Christ: “We must obey God rather than men.” (Acts 5:29)

 

Perhaps one day our government will learn its proper role.  Until then it seems Christians must actively resist this overreach.

Ann, it was Justice Scalia who wrote the opinion setting the standard that would be applied if this case went to the US. Supreme Court:

 

" We have never held that an individual's religious beliefs  excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940):

 

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

 

(Footnote omitted.) We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said,

 

are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Id. at 166-167.

 

Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a 

valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0494_0872_ZO.html

 

i believe Justice Scalia would say that the government is free to write a religious exemption into the law if it wishes, but it is not required by the Constitution. 

Here is Justice Scalia's explanation of limitations on actions that would not be permissible:

But the "exercise of religion" often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a state would be "prohibiting the free exercise [of religion]" if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of "statues that are to be used  for worship purposes," or to prohibit bowing down before a golden calf.

David --

When I was young (before ecumenism)  many Southern Protestants thought that Catholics were the devil incarnate.  Some even believed that Catholics literally had tails and cloven feet.  In those circumstances would I have pushed a bigoted Protestant to serve me against his/her conscience?  No, I certainly would not.  I'd have found somebody else and prayed for the bigot.

Yes, we do have to respect other people's consciences.  No, we should not respect what their consciences tell them to do or not do, but we must respect the fact that they are *obliged* to act according to it.  Yes, if someone thought he ought to slaughter Christians we should stop him from doing so.  But we should respect him for having the courage of his convictions.  

Perhaps one day our government will learn its proper role.  Until then it seems Christians must actively resist this overreach.

Bruce,

What about, "Render to Caesar the things that are Caesar's, and to God the things that are God's"? What about, "My Kingdom is not of this world?" 

I don't thhink it is overreach for the government to pass nondiscrimination laws involving public accommodations. No one demanded that Elane Photography not preach about Christ. 

Yes, if someone thought he ought to slaughter Christians we should stop him from doing so.  But we should respect him for having the courage of his convictions.  

Ann,

You can't be serious. Should we have respected Eichmann for having had the courage of his convictions? Should he have been put on trial and executed? That was certainly unnecessary, since he wasn't going to kill any more Jews in the 1960s. Why execute a man for having the courage of his convictions? Isn't that disrespect for conscience? 

But we should respect him for having the courage of his convictions

Yeah, pretty sure we shouldn't.

David N. ==

Of course I"m serious.  It boils down to respecting and even loving people with misformed consciences.  

As to Eichmann, if you're against capital punishment, which I am, then he should not have been executed either.  (But note -- you seem to be *assuming* that he honestly believed that he was doing right.  I say that given the enormity of his crimes that the best evidence is that he was terribly, terribly guilty.)

What happens when consciences conflict?

In 1964, when one could still buy a Colored sign at a local hardware store in Virginia Beach, lunch rooms on the other side of the tracks in cities and towns across the South offered burgers and milkshakes that were probably every bit as good as those sold at the "whites only" lunch counter in the local Woolworth's. But some people's conscience told them that they had to sit at the "wrong" counter, even though they knew that beatings and arrests were all they would be served, because the conscience of other folks said they shouldn't sit there. If all sides were being sincere, whose conscience deserved to be upheld? And how should it have been decided?

Bloody confrontation was part of the process, but nothing on the scale of the conflict a hundred years before, when related issues had arisen. This time a more or less orderly course of legal proceedings, backed to be sure by the unchallenged power of the federal government, changed customs and conduct while still leaving all participants free to think as they chose. Today many people believe, and even more profess to believe, that that was a good outcome.

Laws and court cases, being human contrivances, are always likely to be imperfect and are sure to be contentious in a diverse society. But before despairing of them, we might look around the world to see how other nations are settling their differences.

In those circumstances would I have pushed a bigoted Protestant to serve me against his/her conscience?  No, I certainly would not.  I'd have found somebody else and prayed for the bigot. 

Ann, I remember having dinner with a family in Princeton at the time when women students started pressing for membership in the all-male eating clubs. Their very proper daughter said she couldn't understand why any woman would want to go where she wasn't wanted. Clearly, she wasn't going to be on on barricades. My impression was that she didn't think other women should be protesting either. 

My guess is that that when people started sitting-in at Woolworths, there were probably other equally self-identified  "Colored" people who felt they could eat perfectly well at those places John Prior described on the other side of the tracks and didn't see why those other people were trying to get served where they obviously weren't wanted. 

However, I don't think that the fact that some people were willing to live with discrimination entitled Woolworths to keep on discriminating. 

But note -- you seem to be *assuming* that he honestly believed that he was doing right.  I say that given the enormity of his crimes that the best evidence is that he was terribly, terribly guilty.

Ann,

You seem to be assuming that everyone who claims they ought to be exempt from the law on religious grounds is acting in good conscience. It seems to me the nature of prejudice against gay people (and Jews, and African-Americans, and Muslims, etc.) is such that people are in serious danger of taking the inner voice of prejudice to be the inner voice of conscience. Were people who discriminated against Jews, or people justified slavery or racial segregation sincerely acting according to conscience? Or were they confusing conscience and prejudice. 

To give another example of what John Hayes has talked about, before women had the right to vote, many women were adamantly opposed to women's suffrage. Now, what you said about not forcing an anti-Catholic to provide services to you certainly makes a lot of sense. But suppose black people had taken the attitude that they didn't want to go where they were not welcome. Or suppose Martin Luther King had said, "If you can't get served at an all-white business, or you can't get into an all-white school, find a place where you are welcome and go there instead"? 

I should point out that unless we don't know about it (and I am sure we would), in the seven years since Elane Photography refused to do business with the lesbian couple, there have been no other complaints against them. I don't think gays and lesbians are eager for confrontations, nor do I think they will go to places where they know they will be turned away and then spend thousands of dollars on legal fees to bring a lawsuit. The lesbian couple tried to hire Elane Photograph in good faith, not expecting to be turned away. They made their complaint against Elane Photography on principle, not for the purpose of forcing Elane Photography to take their wedding pictures. And when they won the initial case, they asked only to be reimbursed for their lawyers' fees, not to have Elane Photography punished. One can only imagine what the legal fees of 7 years of wrangling have cost both sides. Nobody setting out to plan a wedding, gay or straight, is going to deliberately provoke a situation in which they will have to be in court for years and pay thousands of dollars in legal fees.

 

You seem to be assuming that everyone who claims they ought to be exempt from the law on religious grounds is acting in good conscience.

 

The problem is that courts cannot evaluate the legitimacy of a person's claimed religious beliefs - it would be an impermissable involvement in religion.

 

There have been disputes about state driver license requirements that had the effect of prohibiting Muslim women from wearing headcoverings when ID photos were taken. Most places have made some accomodation for that.

 

I thought of that when I read this story, today:

A student at Texas Tech University appears to be the first American to have his driver’s license photo taken — and to successfully obtain a driver’s license — while wearing a pasta strainer on his head.

 

The student, Eddie Castillo, pulled off the stunt by claiming to practice Pastafarianism and belong to the Church of the Flying Spaghetti Monster, reports KLBK.

 

Castillo told DMV officials that the silver, metal pasta strainer is a religious symbol for him, and they bought it.

 

“Once she allowed me to put the pasta strainer on my head, I took the biggest, cheesiest smile I probably ever took,” he reminisced to the Lubbock CBS affiliate.

 

Pastafarianism is a satire. Its proponents seek to illustrate their belief that government should avoid promoting any single religion.

"You seem to be assuming that everyone who claims they ought to be exempt from the law on religious grounds is acting in good conscience."

David N. --

I don't know whether "everyone* is acting in good conscience, but the couple at issue does seem to be.  Evidence?  They were willing to pay hard cash for legal representation to live their lives as they seem to see fit. 

The case with Eichmann is totally different.  My point about him is that what he did is so enormously, hideously wrong that only a madmen could not see that it incredibly wrong. Might he actually have thought he was right? Only if he was insane.  He doesn't seem to have been insane (though a good psychiatrist might convince me otherwise), so I assume is is terribly guilty.  True, only God can judge him with absolute certainty

I  agree that people do take prejudice as the voice of conscience sometimes.  And sometimes they take ideology, and self-interest, and what-grandpa said, as the voice of conscience.  But I know from my experience as a very old Southerner that there were people who were brought up to believe on religious grounds (see the Bible on slavery -- some interpretations allow it) that segregation was immoral, and since many of them were uneducated and some were stupid to begin with, there was reason for their prejudice that was not their own doing.  So, no, I don't think they were rotten people.  The were grossly *mistaken* people.

 True, I often complain about Americans giving up the notion of sin and replacing it with the notion of mistake.  But in my experience the best explanation for some objectively wrong behavior is *mistaken* conscience.  And what I'm appealing for here is that those imperfect people's acting according to their (mistaken) consciences be respected because they have done what they have thought was right.  

Granted, if someone's conscience tells him to physically injure others then that cannot be tolerated.  But the photographers in question weren't going to hit the spouses with their cameras.  They are only claiming *a right not-to-do* something, and the photographers refusing to photograph the wedding did not deprive the spouses of their right to have their wedding photographed.

 

".... who were brought up to believe on religious grounds (see the Bible on slavery -- some interpretations allow it) that segregation was immoral"

Oops =  I said that exactly wrong.  There were Southerners who were raised to believe on religious grounds hat segregation was morally *right*.

For a photographer, it doesn't matter in which wedding ceremony he or she is going to be performed. But here we have found a very controversial issue, which a wedding photographer refuse to photograph a gay commitment ceremony. I don't think these kind of unprofessional behaviors are appreciated, we have don't have any rights to hurt anyone's sentiment or emotion. But in my point of view a professional photographer is completely responsible for making a wedding ceremony, engagement ceremony and commitment ceremony special and attractive. For more about wedding photographs we may visit Wedding Photography Las Vegas.

 

 

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About the Author

Eduardo Moisés Peñalver is the John P. Wilson Professor of Law at the University of Chicago Law School. He is the author of numerous books and articles on the subjects of property and land use law.