Brad is exactly right in his distinction. This case is easily distinguishable
from the case of the taxi cab driver (which has been previously discussed on
the list) or other services for which there may be no other reasonably
available substitute. Nor is it similar to those cases in which it may be
challenging to protect the conscience rights of the individual while
guaranteeing that the particular service is still available (as discussed with
regard to pharmacists and nurses). Every indication is that there were plenty
of photographers in New Mexico who would have willingly taken pictures of the
same-sex wedding ceremony. From the factual description in the opinion, it
appears the photographer was very polite in expressing her religious views and
why she would not photograph the ceremony (and even thanked the plaintiff for
inquiring about her services). Thus, it is clear that the only reason the
photographer was pursued was
because the plaintiffs were insistent upon using the law to force her to
actively participate in a ceremony which violated her religious beliefs.
I find it intriguing that the NM Supreme Court made a point of saying that
although public accommodation businesses must comply with the New Mexico Human
Rights Act, "such businesses retain their First Amendment rights to express
their religious or political beliefs. They may, for example, post a disclaimer
on their website or in their studio advertising that they oppose same-sex
marriage but that they comply with applicable antidiscrimination laws." How
far does this reasoning really go? Does it mean that a photographer is free to
express her religious and political viewpoints as much as she wants in a
business context so long as she still provides the photography service? For
instance, what if a wedding photographer expresses his/her religious beliefs by
prominently posting the following in the studio:
"Our owners and photographers are faithful _________ [fill in the blank:
Christians, Muslims, Orthodox Jews etc.]. As part of our religion, we firmly
belief that homosexual / same-sex sexual behavior is immoral and sinful. We
believe that marriage is the union of one man and one woman and that any event
claiming to be a "marriage" between two people of the same sex is an
abomination. That being said, we are required by the terms of the NMHRA to
photograph even ceremonies we consider abhorrent. However, because photography
can convey the message that a photographer consented to or approved a
particular ceremony, we reserve the right to include a disclaimer on each and
every photograph that we take disclaiming any consent or approval of the
particular ceremony and stating our religious positions. We also reserve the
right if photographing outside the studio to publicly display signs and wear
clothing expressing our religious convictions and
disapproval of the ceremony. The rights herein reserved are not limited to
same-sex ceremonies but specifically cover any type of event to which the
photographers have a religious or political objection. Photographs on which
the photographer choses to place a disclaimer may not be displayed or otherwise
used without the disclaimer included at all times."
The opinion appears to bless such an approach when it says that "Elane
Photography is free to disavow, implicitly or explicitly, any messages that it
believes the photographs convey." The NMHRA prohibits a public accommodation
from "mak[ing] a distinction, directly or indirectly, in offering . . . its
services." So is any disclaimer or similar message ok under the Court's ruling
solely provided that the photographer actually takes the pictures? Or do
others interpret the Court's language on this point differently?
Will
Will Esser --- Ad Majorem Dei Gloriam
Private Practice
Charlotte, North Carolina
________________________________
From: Brad Pardee <bp51...@windstream.net>
To: 'Law & Religion issues for Law Academics' <religionlaw@lists.ucla.edu>
Sent: Friday, August 23, 2013 12:06 AM
Subject: RE: New Mexico Supreme Court Rules Against Wedding Photographer
Who Discriminated Against Gays
This is not correct. The issue is neither the customers' identity or the free
market. It is about the merchant being required to participate in events that
they cannot participate in by virtue of the tenets of thier faith in order to
engage in commerce. As I wrote, "If the photographer refused to take school
pictures, Christmas card photos, etc., of homosexual individuals, then there
might be a question of discrimination." That is not an issue here.
The Christian Scientist as doctor is a false parallel. The two are mutually
exclusive. The cases of the photographer, the baker, and the psychologist are
not at all cases of mutual exclusivity. Photographers and bakers are fully
able to take pictures and bake and still be live in accordance with their
religious beliefs. The number of Christians who have successfully practiced
psychology without violating the tenets of their faith proves that this is not
mutually excluesive either.
This is most assuredly an infringement of liberty by the state with the clear
effect of expelling anyone who does not line up with the "party line" from the
profession. That's no concept of liberty that that means anything that I'm
familiar with.
Brad
From:religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Thursday, August 22, 2013 10:20 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: New Mexico Supreme Court Rules Against Wedding Photographer Who
Discriminated Against Gays
That's right, Brad, if you want to have a for-profit company in a free market
economy, you shouldn't be able to choose your customers based on race, gender,
sexual orientation, or religion. Isn't that how the market works best-- being
fueled by products and price, rather than purchaser's or seller's identity?
The market driven by religion that Hobby Lobby and Elane's Photography would
like to occupy is driven by identity, not the fair market.
A Christian Scientist can't be a doctor. If you can't fulfill the obligations
of a trade due to your religious beliefs, you can't. That is not an
infringement of "liberty" by the state; it is an infringement of liberty by the
religious belief/organization. No constitutional violation.
Marci
Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
On Aug 22, 2013, at 10:36 PM, "Brad Pardee" <bp51...@windstream.net> wrote:
The problem with this rationale is that the religious liberty issue is about
being forced to be an active participant in a specific event. If the
photographer refused to take school pictures, Christmas card photos, etc., of
homosexual individuals, then there might be a question of discrimination. But
a wedding photographer is an active member of the wedding party and an active
participant in the wedding activities. The parallel to a wedding between
people of different races is flawed because discriminating against people whose
skin is a different color makes no more sense than discriminating between
people whose hair is a different color or whose eyes are a different color.
The difference between males and females, however is quite substantive and not
merely a matter of appearance.
>
>It's the same situation as in the recent story out of Oregon where the state
>Attorney General is investigating a bakery that would not make a wedding cake
>for a lesbian couple. Unless the bakery refused to sell cookies, pies, other
>cakes, etc. to homosexuals, there might be a question of discrimination. But,
>much like the wedding photographer, the bakery that provides the wedding cake
>is an active participant in the wedding activities.
>
>We have now established that, if your faith does not allow you to be a
>participant in a same-sex wedding, you are not permitted to be a wedding
>photographer for anybody. You are not permitted to bake wedding cakes for
>anybody. We had a lengthy discussion here some time back about a woman who
>was, if I recall correctly, kicked out of a graduate psychology program
>because of what her faith teaches on the subject of sexual orientation. And
>this is what passes for "religious freedom" in today's climate.
>
>Brad Pardee
>
>From:religionlaw-boun...@lists.ucla.edu
>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Joel
>Sent: Thursday, August 22, 2013 2:28 PM
>To: religionlaw@lists.ucla.edu
>Subject: New Mexico Supreme Court Rules Against Wedding Photographer Who
>Discriminated Against Gays
>
>
>New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated
>Against Gays
>Jonathan Higbee | August 22, 2013
>
>The New Mexico state Supreme Court has ruled against a photography business
>that refused to photograph a gay couple's commitment ceremony because THE
>BIBLE.
>Advertisement
>
>From an ACLU press release:
>
>The New Mexico Supreme Court ruled today that Elane Photography illegally
>discriminated against a same-sex couple by refusing to photograph their
>commitment ceremony due to the business owner’s religious beliefs.
>
>The opinion stated: “We conclude that a commercial photography business that
>offers its services to the public, thereby increasing its visibility to
>potential clients, is subject to the antidiscrimination provisions of the [New
>Mexico Human Rights Act] and must serve same-sex couples on the same basis
>that it serves opposite-sex couples. Therefore, when Elane Photography refused
>to photograph a same-sex commitment ceremony, it violated the NMHRA in the
>same way as if it had refused to photograph a wedding between people of
>different races.”
>
>“When you open a business, you are opening your doors to all people in your
>community, not just the select few who share your personal beliefs,” said
>Louise Melling, deputy legal director of the American Civil Liberties Union.
>“The Constitution guarantees religious freedom in this country, but we are not
>entitled to use our beliefs as an excuse to discriminate against other people.”
>- See more at:
>http://instinctmagazine.com/post/new-mexico-supreme-court-rules-against-wedding-photographer-who-discriminated-against-gays#sthash.NqCIsH37.dpuf
>
>
>
>
>Joel L. Sogol
>Attorney at Law
>811 21st Ave.
>Tuscaloosa, Alabama 35401
>ph (205) 345-0966
>fx (205) 345-0971
>email: jlsa...@wwisp.com
>website: http://www.joelsogol.com/
>
>Ben Franklin observed that truth wins a fair fight - which is why we have
>evidence rules in U.S. courts.
>
>
_______________________________________________
>To post, send message to Religionlaw@lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see
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>
>Please note that messages sent to this large list cannot be viewed as private.
> Anyone can subscribe to the list and read messages that are posted; people
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_______________________________________________
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_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
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Please note that messages sent to this large list cannot be viewed as private.
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