Does "gay rights" mean denying a commercial photographer the freedom to choose what she will photograph? The Volokh Conspiracy reports that after Elaine Huguenin refused a lesbian couple's attempt to hire her to photograph their commitment ceremony, the New Mexico Human Rights Commission held that this violated state antidiscrimination law covering sexual orientation.
Huguenin says she exercises political judgment-hers-in deciding what to photograph (for instance, she also won't accept assignments to take photographs that positively portray abortion, pornography or nudity).
Writes law professor Eugene Volokh,
"…the New Mexico government is now telling Huguenin that she must create art works that she does not choose to create. There's no First Amendment case squarely on point, but this does seem pretty close to the cases in which the Court held that the government may not compel people to express views that they do not endorse."
Aside from the legal merits of violating Huguenin's liberty, just what do the offended lesbians who brought this action hope to accomplish by forcing Huguenin to work for them? It's the kind of totalitarian-leaning nastiness in the name of the self-righteous promotion of "equality" that would make Robespierre proud.
29 Comments for “Involuntary Servitude in the Name of ‘Equalty’?”
posted by Amicus on
Works of art? Pluz.
What if the UPS guy decided he wasn’t going to deliver packages to Asian houses? What if muslim taxi-cab drivers decided that they were not going to pick up people with alcohol? What is hotels decided that they weren’t going to rent rooms to anyone with a Jewish sounding name?
If you are advertising to the general public, holding yourself out for services, you probably should be willing to work for most anyone who can pay the fee, right? That’s the American way: we’re all green as money.
posted by Avee on
So amicus, I guess you also believe a gay freelance writer who advertises his services should be forced, by the state, to accept an assignment writing an anti-gay tract?
The photographers rejected the assignment based on its content, not on the client’s sexual orientation per se.
But under liberal fascism, forcing people to violate their beliefs in the service of progressivism is, after all, for their own good. The state, of course, knows best.
posted by Regan DuCasse on
I think it WAS a mistake to sue or otherwise make a federal case of this photographer’s refusal. If she also doesn’t photograph other types of situations, then that IS her choice and she should have it.
I am a struggling photographer, but I refuse to engage in stalking and following the celebrities around town and becoming papparazzi. Some photographers DO have a line. I work with the LAPD as a forensic photographer and we cannot and would not expose the photos to the public in any way.
This lesbian couple could have simply gone to another photographer and perhaps refused to recommend the photog who refused their business.
I know there are photogs who refuse to work with animals, and some who specialize in pet portraits.
Photogs have all kinds of different preferences. They are pretty endless actually.
And there are LOTS of us in the sea.
To this couple I would just say, throw the fish back, it’s not worth the complaint and it’ll make you look vindictive more than the photog look bigoted.
There is freedom to put the word out that the photog refuses to shoot gay couples and let the market do what it will.
Especially because there are so many more options to take than the one they did.
posted by NG on
I really don’t have an answer for this. I can see situations where people shouldn’t be forced to do things that they find morally objectionable, but I can also see situations where that “moral objection” could be misused for actual bigotry.
In this particular case, I think that the photographer has a right to decide which events she will photograph and which ones she won’t.
posted by Jorge on
Usually I side with the “hate the sin, not the sinner” argument, but not this time. This is definitely small potatoes, but the precedent is important. The whole point of civil rights is that people must not be discriminated against based on things that they are born as, for reasons that have no basis in reality and that are prejudicial. And more to the point, that the social system of judging and classifying people as greater or lesser based on these characteristics must be eradicated. A doctor should be treated as a doctor, a mother as a mother, regardless of skin, religion, or in this case sexual orientation.
If Ms. Huguenin were just some small-bit photographer working out of her home, I’d say fine. What private people do is their business, but anybody who’s licenced, anyone who benefits from public (government) recognition has an obligation to offer their services to all members of the public equally, unless there’s a reason not to that actually makes sense. Otherwise that means gay people have a harder time getting a service the government regulates. That’s the government saying gays should have a lower quality of life–you can’t be sure when you want a certain quality of photography you’re going to get it, and it’s just because of who you are. That’s making gays second-class citizens, and that’s not acceptable.
Politics isn’t good enough. The photographer should claim religion.
posted by NG on
What private people do is their business, but anybody who’s licenced, anyone who benefits from public (government) recognition has an obligation to offer their services to all members of the public equally, unless there’s a reason not to that actually makes sense.
So how far do you take that reasoning? Should she be forced to take photographs at a nudist wedding? Who decides what is reasonable refusal of service and what is not?
Forcing her to take the photos doesn’t guarantee that the lesbian couple will get equal treatment either. She could just as easily sabotage her own work, call in sick at the last minute, or say that she’s too busy.
Realistically, there is only so much that the law can do to guarantee equal rights and proving that someone broke those laws can be very difficult. If the photographer hadn’t admitted why she was refusing the service, there is nothing anyone could have done about it.
posted by ModerateGay on
Jorge: There is a reason not to that makes sense, in this case. You just don’t like it. Your position is like making people slaves because you decide when they have to work.
Plus your position just isn’t true. Licensed professionals (but we haven’t agreed Ms. H is one) refuse people service all the time, for any reason they like. A lawyer doesn’t have to take same-sex marriage cases if she doesn’t want to, for instance.
posted by Richard on
This seems rather odd. Most civil right laws that include sexual orientation have an exemption for religious organizations.
Civil rights laws in general tend to exempt small businesss, and non-profits.
posted by Richard on
Also, civil rights access to health care, for example, is probably a bit more important then getting a photographer.
If a doctor refues to treat gay patients, that might just be a bit more serious then if a photographer refuses to photograph a gay person.
Although, if the photographer had already agreed to work for the couple, and then backed out she would probably have to refund their money or fullfill the contract.
posted by Michigan-Matt on
Stephen, here in Michigan we had a similar case in Ypsilanti. A gay group approached a mom & pop print shop for some flyers to be printed about an upcoming circuit party. The owners said no, take your business elsewhere. The gay group pursued it with the city’s human rights dept. The dept directed the printers to do the work… the owners sued… etc etc.
Of course, the gay group claimed to be outraged! Discriminated against beyond reason. Of course, there were dozens of other printers to do the job… let alone all the self-service shops available in the area. No, the gay group wanted the known-Christian shop to do the work.
By the time the press got a hold of it, all sorts of details came out about the administrative purview of the city dept, the targeting of the printer by the gay group, lots of other remedies available… it was a PR nightmare and the mom & pop woners made great sympathetic “victims” for the press by these “unreasonable, rabal” of gay extremists.
Like with that case, I think you example comes a lot closer to “gays being idiots and unreasonable” than anything like activists advancing our community’s agenda in the face of bigotry and hatred.
We need less of these “cases” if we’re going to move the ball forward on bigger issues.
posted by Amicus on
…gay freelance writer who advertises his services should be forced, by the state, to accept an assignment writing an anti-gay tract?
Nevermind the state. As a writer, freelance or otherwise, you certainly should be able to write about a whole range of topics. Do we expect writers who are Democratic not to ever write about Republican politics with care, tact, and skill? If you don’t believe in bio-fuels, does that mean you could never write a piece that explains the viewpoint of those who do? If you are not Sikh, does that mean you never hire one?
There is no expectation that you would be forced to write and sign an editorial or something, right?
…rejected the assignment based on its content, not on the client’s sexual orientation per se.
I don’t know enough about the facts of the case to say.
Intuition suggests that someone said something to piss someone off, rather than politely decline, sub-contract the work, or provide a reference to someone who could handle it better …
posted by Amicus on
No, the gay group wanted the known-Christian shop to do the work.
Not to condone pointless confrontationalism, but what would have happened in your area is someone refused to print a Christian retreat flyer on the grounds that “Jesus sucks”?
Would it have just rolled off everyone’s shoulders?
posted by Amicus on
Civil rights laws in general tend to exempt small businesss, and non-profits.
What about small town attitudes?
What about that group of people who say to themselves (and each other), “You [gays] can do what you want, but I don’t have to like it”, and then proceed to use what power they have in their sphere of influence to exclude, complicate, saddle the objects of their disaffection at will?
posted by matt on
Dear Lord! Get another photographer! It’s the photographer’s right to be a bigot whether we like it or not. Even if she hates us that is her right. She is not hurting anyone by not taking photographs of the lesbians.
posted by JimmyD on
I agree that the ruling is over the line, but we need some sort of “involuntary servitude” to protect against housing, employment, and medical discrimination. It all works off of the same principle, but the line should be drawn at the point of threatening a persons’ life or livelihood.
posted by Jason D on
from what I understand, she was refusing pricing information, a slight legal difference there.
Couple things to consider:
1) What qualifies as public accomodation?
2) Huguenin owns a company, and if the law applies to companies, how does it NOT apply to Huguenin?
3) Does Huguenin make it known in her advertisements and other materials who she will work with and who she will not work with?
4) Would we feel the same if Huguenin was refusing her services to an interracial couple? A disabled couple? An elderly couple? A Jewish couple? An Atheist couple?
Personally, I think this is one of those superfluous cases that really doesn’t help us out at all. Kind of like those folks who tried to sue eHarmony —although I sympathize somewhat in the eHarmony case, I filled out their long and exhaustive survey only to get to the end and find out they don’t deal with gay matching — something that should’ve been stated up front.
Elaine could’ve gotten around all this by saying she was not able to handle any more clients at this time, or by saying she was busy on the day in question. She chose to explicitly deny services to a lesbian couple that appears to put her in violation of the law, which states: “Public accommodation? means any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment which is by its nature and use distinctly private.”
I would’ve just found a different photographer.
posted by ModerateGay on
2) Keep in mind that even if the law applies, it can still be unconstitutional.
4) yes, if she offered the same justification – moral conscience. Her conscience may be awfully wrong but it is still hers. Don’t force her conscience or anybody’s. Because yours might be next.
posted by Keori on
I agree with several of Jason D’s points. The lady runs a private business. Unless a photographer is running a studio with store space easily accessible to the public, there generally isn’t an assumed public accommodation that she needs to provide. Members of the public must go and seek her out and solicit her skills. It’s not like walking into a 7-11 that’s easily accessible to anyone in a two-block radius. The rule of thumb is if ADA isn’t applicable, public accommodation isn’t either.
That a lawsuit was filed is absolutely ridiculous. It’s a waste of time, money, and it makes the couple look vindictive and mean. They should have just told this woman, “Thanks for your time and honesty. We’ll be sure to discourage our friends and family from utilizing your business,” and left it at that. The beauty of free markets is that word-of-mouth advertising does a hell of a job.
posted by matt on
It’s a private business; she can choose who she wants to service, no matter if we like it or not. Don’t get me wrong, she is a deftly wrong on this matter…but it’s her prerogative not mine.
posted by Richard on
You asked: What about small town attitudes?
Yes, this can possibly be a problem if you are dealing with essential services with, because of the small size, have few or no alternatives.
If you only have one clinic in town, then letting them not treat gay patients would obviously cause serious problems.
Yet, photographers are not essential services and most small towns often have more then one person capable of being a photographer.
posted by Richard on
Civil rights are not set up to regulate every possible economic interaction between people.
They are set up to ensure equal opportunity and treatment in essential services; i.e. life and livelyhood.
A photographer is not really an essential service, is probably a fairly small business and their got to be some one in the community or region more then happy to take photographs.
posted by Amicus on
Commerce is the province of civil society, not religious belief and quite seldom to just private “clubs”. Civil society has an interest in and regulates commerce, accordingly. If we built our society around everyone’s interpretation of what they should do, it’d be a disaster, as I intimated above.
“Civil Rights” are essentially a quest for a just and fair society.
As for civil rights *laws*, there probably doesn’t need to be a lawsuit about everything, but a few decisions might have the desired effect on those people who … probably *should* feel some push-back.
The effort to describe some things as de minimus (non-essential) doesn’t seem right to me. I’d rather have the vendor bear some burden that they were unable to provide services (eHarmony had special research and methodology that didn’t apply to GLBT, arguably, although they fail to disclose that …).
To follow our examples for small towns, why should I have to drive to the next town, just because the nearby bank branch gives “attitude” to anyone who has two men’s names on a checking account? [FTR: this is not a problem I’ve ever had personally]
What about Home Depot or Walmart? These companies have driven out the Mom & Pop’s in a lot of areas, so that they are the only show in town. What if you find yourself suddenly having an extra hard time getting someone to help you in the aisles? [FTR: I have seen this happen in a different context, not related to myself or to being gay]?
posted by Jorge on
So how far do you take that reasoning? Should she be forced to take photographs at a nudist wedding? Who decides what is reasonable refusal of service and what is not?
The people decide of course. If we don’t like a decision, we ask our elected officials to pass a law overturning it.
Let me ask the same question toward Richard’s comment: who decides if a refusal of services is “serious” or not, where do we draw the line there? I’m not comfortable saying you can’t discriminate in serious situations like blood transfusions (as happened to the African American who pioneered them) but if it’s a seat at the lunch counter you want then you’re screwed. That’s still impacting people’s quality of life and making them second class citizens. I can’t accept that.
Here’s the difference between a nudist wedding and a gay wedding: partying nude is an action. Homosexuality is a part of a person’s inherant character, something you have no control over and something that is morally irrelevant.
As for regulations covering when licenced or regulated businesses or professionals can and cannot refuse services, my question is when can they discriminate against gay people?
posted by NG on
Homosexuality is a part of a person’s inherant character, something you have no control over and something that is morally irrelevant.
Not according to some people who believe that being gay is a choice. Speaking purely objectively, it has not been proven what causes homosexuality. It is my BELIEF that it is something born people are born with (genetic or early development), but that is not FACT.
posted by John S. on
Sorry guys, but Wal-Mart, like any other business, has the right to refuse service to anyone for any reason. Unlike the “right” to be served in a place like Wal-Mart, this is a true constitutional right.
posted by Bobby on
Creative people (and other people as well) have the right to refuse assignments. A freelance copywriter doesn’t have to write for Focus on the Family or the Christian Coalition. This isn’t a business that serves the public like McDonalds or a car wash or a hotel. The standards are different.
Why should a photographer not have the right to refuse a project?
Huguenin’s not a bad person, she’s honest. Would you prefer to have a homophobe taking pictures at your wedding and then making fun of you?
Forcing tolerance is worse than discrimination.
posted by Amicus on
the right to refuse service to anyone for any reason
These attitudes hold America back, among the civilized world.
Surely, a restaurateur ought to have the means to refuse service to someone not meeting their code for attire or for being raucous, at the expense of other guests.
To fail to seat a gay couple? Ridiculous. To have a ‘blacks only’ luncheon counter. Not acceptable.
Therefore, we can say, “no” to “for any reason”. It’s certainly not unfair or a cumbersome intrusion merely to ask that there be a rational proof of some solid business decision for excluding people in most circumstances.
posted by Richard on
Libertarians want us to believe that all civil rights laws are unconstitutional, but smarter people do not believe them.
Walmart is a large business and thus is more likely to be covered by civil right laws then a small business.
Housing, health care, education, banking, transportation are all essential services in the 21st century. Photography is not.
Even in small towns, their is likely some one willing to take the pictures — their are liberal artists in small towns.
Their is probably some sort of gay community group, even a regular pot luck, in the town or nearby, and they are rather easy to locate.
posted by Bobby on
Amicus, you don’t get it, a restaurant and a photographer are not the same.
A restaurant has to serve everybody, and they can only discriminate on issues such as “no shoes, no shirt, no service,” or they can have a dress code that demands a jacket and a tie.
A photographer specializes in different areas and they choose their clients accordingly. For example, if two people want to get married naked, the photographer can refuse to work with them.
Those lesbians are stupid, all they needed to do was to get a copy of the gay yellow pages and hire a photographer that advertises there.
What’s holding America back is the litigious nature of this society. There are enough real cases of real discrimination, instead the courts are flooded with cases of lesbians that want to join private country clubs as a couple, men that want to join women’s gyms, transexuals that want their own bathrooms, muslims that want special faucets to wash their feet so they can pray at the airport, it’s getting ridiculous.