When the Persecuted Become the Persecutors

by Stephen H. Miller on September 15, 2012

George Will reflects on the case of a New Mexico commercial photographer being sued for refusing, on religious grounds, to accept a gig photographing a same-sex commitment ceremony. Says Will of Vanessa Willock, the lesbian brining the suit:

Willock could then have said regarding Elane Photography what many same-sex couples have long hoped a tolerant society would say regarding them — “live and let live.” Willock could have hired a photographer with no objections to such events. Instead, Willock and her partner set out to break the Huguenins to the state’s saddle.

Concludes Will, “Perhaps advocates of gay rights should begin to restrain the bullies in their ranks.”

Those of an activist-statist bent, who see government power and coercion as the road to the great new dawn, will not be appeased. Like the mayors who threatened Chick-fil-A with persecutory implementation of zoning laws over its chief executive’s opposition to same-sex marriage, cases like this are a detriment to our advance toward equality under the law.

{ 31 comments }

Tom Scharbach September 15, 2012 at 9:25 am

Perhaps advocates of gay rights should begin to restrain the bullies in their ranks.

I wonder how George Will thinks that those of us who are “advocates of gay rights” are supposed to go about doing that. The last time I checked, none of us has any power to restrain individuals.

Walker September 15, 2012 at 10:20 am

Don’t be silly, Tom. Will isn’t suggesting that we imprison them. He’s suggesting that leaders and other activists oppose and discourage such bullying. You know, like when liberal editorial pages reprimanded the mayors who threatened legal action against Chick-fil-A. Or when William Buckley denounced the John Birch Society, which led many conservatives to stay away from them.

If HRC, the Blade, and Barney Frank said “this isn’t what gay rights are about; freedom means freedom for everybody,” suits like this would be less likely. And moderates would see that this isn’t what gay rights means.

Doug September 15, 2012 at 11:52 am

I’ll back off bullying when the right wing backs off trying to shove “their” down my throat and stops trying to pass laws and constitutional amendments that make me a second class citizen.

Doug September 15, 2012 at 11:54 am

Should read: when the right wing backs off trying to shove “their” god down my throat. . .

Houndentenor September 15, 2012 at 12:40 pm

It’s kind of funny really to think that Will is implying that there is any real organization or leadership regarding gay rights. Organizations an “leaders” but none with any real power or authority. Surely people on the right have people that they’d rather didn’t file certain lawsuits or make ridiculous statements that are repeated in the press or in the blogosphere. Why can’t they rein them in? The same reason. They just don’t have the power to do so.

Will knows better. He’s just pandering to the religious right who love to act as if they are being persecuted any time they can’t force everyone else to play along with their hypocrisy.

Tom Scharbach September 15, 2012 at 4:37 pm

Don’t be silly, Tom. Will isn’t suggesting that we imprison them. He’s suggesting that leaders and other activists oppose and discourage such bullying.

I wonder if “bullying” is the right term for individuals bringing a lawsuit to enforce a law that gives individuals the right to bring the lawsuit.

But I do understand what Will was suggesting — the Church Lady treatment. I was, in part, making fun of him because of his choice of words, but also making a larger point that the Church Lady treatment almost never works.

The “movement”, if that is the right term for what gays and lesbians have been up to for the last forty-odd years, has always been a bottom-up movement, driven and defined by individuals pushing for equal treatment under the law.

At just about every stage in the process, “gay leadership” has played the role of Church Lady, twittering that whatever action is being taken is “too soon, too radical, too dangerous, too offensive” and likely to accomplish nothing more than to bring on a “backlash” from moderates.

A prominent recent example is the Prop 8 litigation. Almost without exception, the “gay leadership” — from HRC to several contributors to IGF — denounced Olsen and Boies, grimly predicting that the lawsuit would fail and set the struggle for marriage equality back a decade or more. Only when it became absolutely clear to all and sundry that Boies and Olsen were dead serious and going to go forward on behalf of their clients did the “gay leadership” reluctantly sign on.

The Church Lady treatment almost never works. It is beyond me why Will, who purports to be a historian, would look at the “movement” and miss this fact.

If HRC, the Blade, and Barney Frank said “this isn’t what gay rights are about; freedom means freedom for everybody,” suits like this would be less likely. And moderates would see that this isn’t what gay rights means.

I don’t know about you, but I don’t want to see the HRC, the Blade, and Barney Frank — or anyone else, for that matter — start telling individual gays and lesbians “what gay rights are about”, imposing “correctness” and political expediency at the expense of individuals.

Maybe it is just that I can’t stand Church Ladies, but it goes deeper than that. It seems to me that we are better off hold true to the principle that “freedom means freedom for everybody”, including those in the “everybody” who we think are ill-advised.

Mark September 15, 2012 at 11:50 am

There seems to be a pretty important difference between the NM case and the mayors’ Chick Fil-A case. In the latter, the mayors, threatening to act under the color of law, would have violated the First Amendment. In this case, it’s the photographer who’s violating the law.

I always had thought that “what gay rights means” is that gays and lesbians would have the same legal rights as everyone else. Just as anti-discrimination law means that the NM photographer couldn’t refuse service to someone because of his race, or gender, the photographer (at least in a state like NM where gays and lesbians are included in anti-discrimination law) can’t refuse service because of someone’s sexual orientation. Or is it the Will/Miller/Walker argument that requiring a public accommodation that has a moral objection to racial equality to serve black people would also constitute “bullying”?

Granting a “moral” objection for private businesses to anti-discrimination law–as Will, at least, seems to want–would render these laws all but meaningless, since any business, other employer, or even landlord who wanted to refuse service/discriminate/fire against a gay or lesbian customer/renter/employee could simply cite their “moral” objection.

Houndentenor September 15, 2012 at 12:37 pm

I think it’s interesting that Will thinks that any gay “leaders” have any power to convince individuals not to bring such lawsuits. Personally, I wouldn’t have sued. I’d have found a photographer who wasn’t a bigot and made sure everyone I knew was aware of what the photographer said. I wouldn’t have sued, nor would I have encouraged anyone to do so. But it’s not as if I or any other gay person has the power to keep any other gay person for suing when they face discrimination.

Mark September 15, 2012 at 3:34 pm

I wouldn’t have sued in this circumstance, either, partly because I wouldn’t want to have anything to do with a company like Elane Photography and partly because I wouldn’t have wanted to give talking points to groups like NOM.

But what neither Will nor Stephen appear to want to address is whether they think anti-discrimination laws like New Mexico’s should simply be abolished. Do they believe, for example, that a public business should be able to deny service to someone simply because the customer is black? Gay? A woman?

Jorge September 15, 2012 at 10:37 pm

The article is under a registration firewall for me.

Could someone explain to me how a photographer refusing to accept a gig is a violation of the law?

If New Mexico’s anti-discrimination laws do not have a religious objector exemption robust enough to respect those who do not believe in gay marriage, I think those laws should be overturned.

And if that requires a finding that the Civil Rights Act itself is unconstitutional, I say people should back off of fights that are likely to lead to that conclusion.

Houndentenor September 15, 2012 at 11:36 pm

Many of a libertarian bent, Rand Paul for example, have stated that they don’t think these nondiscrimination laws are Constitutional. They believe that people should have a right to discriminate. It’s not that they are racist (or sexist or homophobic or whateverist) as much as they believe that 1) most business people are happy to accept money from potential customers and clients and wouldn’t discriminate and 2) those that do would face social pressure to stop that practice. I find this naive, but then I grew up in the south earlier than a lot of the people who will read this and I know that there are people who still wouldn’t serve African Americans or hire them or have anything else to do with them if the law hadn’t required them to. I don’t think that would be terribly common but it would happen. But if people who believe those laws should be repealed really believe that, then they should propose that and run for office and see how popular that is. I think most people are smart enough to realize that they belong so some group that would face discrimination as many groups (the Irish, Catholics, Mormons, African-Americans, asians, older people, and on and on) actually have in the past.

If you want to allow people to use religion to discriminate in these matters, I would remind you that people used to cite religious reasons for racial discrimination, sex discrimination, anti-Catholic, anti-Mormon and all sorts of other discrimination that is illegal now under the law.

Jorge September 16, 2012 at 11:15 am

Many of a libertarian bent, Rand Paul for example, have stated that they don’t think these nondiscrimination laws are Constitutional…

But if people who believe those laws should be repealed really believe that, then they should propose that and run for office and see how popular that is.

That’s not how laws get declared unconstitutional.

But since you bring it up, I think people should run for office to support the religious exemption. Of course, this is unlikely to carry the day. The minute people became convinced a stronger religious exemption is needed, they would start to become swayed by the Bush route, overturning it by popular vote or even Constitutional amendment. The support for a stronger religious exemption would have to come from the left as a means of heading off a right-wing victory.

Getting back to the topic I raised, I did not grow up in the south. But I do know that the nation’s only black Supreme Court Justice has written that he believes the need to uphold affirmative action in universities would disappear in 25 years–because it is not constitutional today! I do know that the most conservative Supreme Court Justice has stated that employment non-discrimination is not in the Constitution. For some reason, the constitutional anti-discrimination protections the courts have given for blacks are stronger than for gays, even though the courts have found that both have been victims of invidious discrimination. But gays are discriminated against far more severely these days. So the idea that the US Constitution supports progressive civil rights policies at the expense of some free choice because of a history of invidious discrimination has some weaknesses, and is gradually coming under doubt.

Mark September 16, 2012 at 12:10 pm

SSM is illegal in New Mexico, so even if NM’s anti-discrimination law had a “religious objector exemption robust enough to respect those who do not believe in gay marriage,” the exemption would not have affected this lawsuit, since the event for which Elane Photography was solicited was a commitment ceremony, not a marriage.

I’m not aware of any state that has an anti-discrimination law that provides an exemption based on the religious beliefs of people who own public accommodations. Imagine how such an exemption would have worked in the late 1960s South–a Southern Baptist restaurant owner could have cited sincerely-held religious beliefs to justify refusing service to black people. Since almost any form of anti-black, anti-woman, or anti-gay discrimination can be justified with some claim to religious beliefs (however insincere), allowing the sort of religious objector objection that Will and Stephen appear to want would effectively gut the anti-discrimination law. Perhaps that’s a good thing. But if so, people like Will and Stephen should be candid about exactly what they want, and why they think there shouldn’t be laws preventing discrimination in public accommodations based on race, gender, or sexual orientation.

Jorge September 16, 2012 at 6:01 pm

Okay. Well, I can see why I felt the need to ask a question.

So what law was violated?

Houndentenor September 16, 2012 at 2:14 pm

Laws can be repealed by the legislatures and by Congress. It happens all the time.

About race as a factor in admissions, I’m against that. I do think certain factors should be taken into account, and schools may well want a diverse student body. And honestly the straight A student with high test scores from a poor neighborhood and less than first-rate schools seems likely to go out and do something that will provide bragging rights for the school in years to come. That might factor in over someone from a more privileged background with the same grades and scores. It’s why most schools require an essay. They are looking for an interesting personal narrative. Human beings cannot be reduced to a set of numerical metrics.

I just had a thought about this entire topic. I am often contacted about gigs that I just don’t want to do. Very rarely will I come out and tell someone that I can’t stomach a Catholic service these days. So I usually just pass and if pressed will claim that I have a prior engagement. (They don’t have to know that this prior engagement is watching Battlestar Gallactica on Netflix. lol) So I’m surprised that the photographer actually told the couple that he wouldn’t photograph their wedding because they are gay. He could easily have said that he’s already booked for two weddings that day and by the time that day rolls around that will probably be true. They’d have never known and he’d never have been sued. I suppose some would morally object to such a lie, but such little white lies are told every day to avoid being outright rude. I’m not going to tell the music director of the local Catholic Cathedral that I’d rather starve than sing for people who continue to support and aide child rapists. It’s TRUE. But there’s no point in being rude to someone who’s just trying to find a tenor for next Sunday’s services. For the same reason there’s no reason to be rude to someone just looking for a photographer. But I suppose some people feel their religious belief allow them to treat other people as if they are sub-human. Not that this is anything new.

Jorge September 16, 2012 at 6:08 pm

Telling a potenital client you have a policy of not playing in Catholic institutions is not rude. Telling him you’d “rather starve than sing for people who continue to support and aide child rapists” is.

Similarly, it is not rude to say you don’t do same-sex weddings for religious reasons. Stating that those religious reasons entail a distaste for facilitating eternal damnation of sodomites is. Compare and contrast Sean Hannity with Michael Savage.

clayton September 16, 2012 at 9:01 pm

@Jorge
I believe the law in question is one having to do with public accommodation. A person running a hotel is supposed to provide rooms to all customers. A person running a restaurant is supposed to serve all people wanting a meal. And a photographer who specializes in taking pictures of public ceremonies is supposed to do it for everyone. The race, gender, or religion of the clients is not supposed to be a factor. Since the NM law covers sexual orientation, the plaintiffs have a case.

Mark F. September 16, 2012 at 1:59 pm

Should be black photographer be compelled to photograph a white supremicist event? As I read some anti-discrimination laws, that could be the case.

Houndentenor September 16, 2012 at 2:16 pm

It’s hard to imagine a white supremicist group hiring an African American, but your point is well taken. Are we allowed to impose our own personal prejudices on other people at their inconvenience.

Doug September 16, 2012 at 2:54 pm

No the point is not well taken. Anti-discrimination laws outlaw discrimination on the basis of race, creed, color, national origin, religion, sex and sexual orientation. White supremacist do NOT fall into any of those classes.

Houndentenor September 16, 2012 at 5:11 pm

True.
Where I am sympathetic, however, is to the idea that I would have to violate my own principles and accept work for a client I found despicable. In my case I have drawn a line at anti-gay and anti-women Christian denominations. Others draw their own lines. I certainly wouldn’t want to be forced to participate in something I found morally reprehensible even if I were getting paid a reasonable rate for doing so. Of course I have already said how I get around doing that without being rude.

Jorge September 16, 2012 at 6:10 pm

Sure they do. Religion, race, and creed.

Doug September 16, 2012 at 6:30 pm

Get real Jorge. A white supremacist is not a protected class under anti-discrimination statutes.

Jorge September 17, 2012 at 8:57 am

Uhhhhh, race, religion, and creed aren’t protected classes? Are you kidding me?

Doug September 17, 2012 at 5:06 pm

Yes, Jorge Religion, race and creed are protected classes. A white supremacist is NOT a protected class and that would be the basis for choosing not to do business with that person.

esurience September 16, 2012 at 2:28 pm

It doesn’t make sense to blame “gay advocates” for this. Gay people are not responsible for the existence of anti-discrimination laws. Yes, gay advocates have been successful at getting sexual orientation added to the list of what is protected (in many jurisdictions), but we’re not responsible for what the law actually makes illegal and what the remedies are.

If you have a problem with anti-discrimination laws, or the way anti-discrimination laws are applied in particular cases, make that argument, but don’t blame it on gay people.

What I am absolutely against is any sort of “gay-exception” to anti-discrimination laws, where someone would be allowed to discriminate based on sexual orientation, but the same act of discrimination would be illegal if it were based on race.

Houndentenor September 16, 2012 at 5:13 pm

Would it okay for the photographer to decline a job for a heterosexual couples whose marriage he didn’t approve of? A mixed race marriage? Or a mixed religion marriage?

JohnInCA September 17, 2012 at 3:09 pm

“yes” if the “didn’t approve of” fell outside of the lines of protected classes, no, and no.

On that note, however, a religious officiant for a ceremony *can* object on any lines they want. A civil officiant has a more restricted rule-book though.

Don September 17, 2012 at 2:02 pm

The reason for anti-discrimination laws is not to protect the smaller group from the larger group. It is to protect the larger group from destroying collective society as a whole with its in-group/out-group impulses. If no one will hire you because you are in an out-group, then you will have to steal or starve. If a restaurant refuses you service, you’ll likely vandalize their business out of retaliation. This leads to increased costs of police protection. Which leads to further resentment along in-group/out-group lines. This fuels the underlying problems and never gets resolved. The in-group really doesn’t realize it has created the problem.

A photographer denying lesbians a wedding album isn’t going to decay society in a New Mexican town. But if a group gets the right to deny service based on religious beliefs, societal breakdown begins. Whenever one group can isolate and condemn another based on an unchanging characteristic, then the smaller group has no choice but to abandon that society or retaliate against it.

This is why fundamentalists focus on the malleability of sexual “preference” rather than orientation. It is generally accepted as good to condemn bad societal choices, the exception to the rule of ostracizing. If enough pressure is brought to bear on an undesirable choice, societies effectively correct an individual’s bad behavior.

This is the nature of the debate. I, for one, am uncomfortable with litigating personal choices. But mob justice against immutable characteristics frequently happens in societies (not just ours). And the mob doesn’t understand it is creating the crisis. This is why I reluctantly support such legislation. Individuals should not make these bad choices (mob discrimination) but they frequently do. I am unaware of a better mechanism to circumvent such impulses, but would be happy to hear them.

Most libertarians think “I would never do that” and they wouldn’t. But they seem to miss the fundamental nature of humans that most of us will and we’ll think we’re doing a good thing when we do.

JohnInCA September 17, 2012 at 3:07 pm

Hrm. Haven’t heard that argument for anti-discrimination legislation before. Have to remember that one.

Regan DuCasse September 20, 2012 at 12:04 pm

Don is making the most important and salient point here. Gays and lesbians have no way of knowing what the religious background of a person whose services they contract is going to be. It’s the gay couple that has no way of avoiding certain services. This isn’t just about photographers. But it’s pharmacists, physicians, hotel owners, civil servants. And it cannot be emphasized enough, their religious objections are SELECTIVE.
These same religious people don’t use their religious objections against OTHER people who’d meet their religious criteria.
ONLY gay people are getting this kind of treatment. If this photographer had taken a deposit, and then refused to return it on these same grounds, then of course, this couple has a case.
Members of the public, have REASONABLE expectations for service from businesses and companies that work with the public.
It may not seem like this couple is HARMED by this photographer’s refusal to serve them.
But this photographer shouldn’t be emboldened to treat a customer in this fashion.
If a religious put up a sign on their business who they wouldn’t serve, then they BETTER be consistent.
They better not also serve, the divorced.
The divorced and remarried. The marriages to non virgins, the list goes on.
I think we’d all know what would happen to these businesses if their prejudice and objection to provide service WAS consistent so someone knew where they stood with them.
But, they don’t do that.
And that’s the reason why.
Our nation has many different religions, different groups under the same laws.
Jehovah’s Witnesses don’t accept blood donations. But they can’t demand wholesale bans in anywhere for other people, nor can they complain it’s against their religious freedom when they can’t oppress others with THEIR religious choices.
The photographer has a choice with her religion. She won’t get arrested or harmed by serving gay people.
But she can harm the gay couple by refusing service. Especially if she’s the only business convenient to their location. Some places don’t have that many options for gay people to move on.
So Don is right. This is a break down in civil interaction which is vital to the efficiency of getting along and getting along intelligently.

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