Can you decline their business if you are a photographer? Evidently not, in New Mexico.
Attorneys for a Christian wedding photographer say they will appeal a New Mexico court decision that ruled she violated anti-discrimination laws by refusing to photograph a lesbian commitment ceremony.
The controversy began in 2006 when Elaine Huguenin, co-owner of Elane Photography, refused to photograph a "commitment ceremony" for Vanessa Willock and her partner. Huguenin claims her refusal was rooted in her Christian faith that views marriage as a sacred union between one man and one woman.
The Thursday (May 31) decision by the New Mexico Court of Appeals upholds a 2008 ruling by the New Mexico Civil Rights Commission in favor of the same-sex couple that was subsequently upheld in district court.
New Mexico law does not recognize same-sex marriages or civil unions for same-sex couples, but its Human Rights Act requires that places of public accommodation not discriminate on the basis of sexual orientation.
Some background information is needed here. Vanessa Willock emailed Elaine Huguenin, a professional photographer, in 2006 to ask her if she would photograph Willock's same-sex "commitment ceremony." Huguenin replied that she only photographed "traditional" weddings. Willock's partner then emailed Huguenin the next day, asking her if she could photograph her "wedding," with no mention of what the ceremony actually would be. Huguenin replied, via mail, that she would and sent the partner a brochure of packages and their prices. Willock filed charges against Huguenin two months later in New Mexico's Human Rights Division, claiming as her harm that she received an email from Huguenin stating, "we do not photograph same-sex weddings."
What I can take from this case is two-fold: first, "insult" is the moral and legal equivalency of "harm." Willock was not "harmed" in that she suffered a personal injury. Albuquerque is a good-sized city and it is reasonable to believe that there are a fair number of professional photographers who could have shot Willock's ceremony. Is it discrimination? Well, yes - and so what? People discriminate all the time; the difference is what or who is recognized by law to be "protected." So Willock's sexual orientation is protected but Huguenin's exercise of religion is not, although both statuses received strict scrutiny in violations thereof under the US Constitution.
Harm? Photography for a wedding ceremony, gay or straight, is hardly the denial of life's necessities. Compare to the Civil Rights Act of the 1960's - what people might nor remember is that it was passed by Congress not under any "equal rights" claim but under Congress' authority through the Commerce Clause of the Constitution to regulate interstate business, and so it specifically addressed the lunch counters, diners, and motels where segregation was practiced, since food and shelter is considered a necessity. Evidently, New Mexico considers a solo photographer to be a "place of public accommodation." By that logic, everyone and every business is a "place of public accommodation" and subject to being fined for refusing to transact business for various reasons. Including a church, temple, or mosque that would refuse to conduct a same-sex marriage or blessing for religious reasons.
Hypothetical: I am a lesbian wedding caterer, and consider myself a feminist. I have been approached by the parents of a 15-year-old Latina who ask me to cater their daughter's wedding to her 32-year-old boyfriend, an illegal alien from Mexico, whose child the teen is carrying. I find such a practice abhorrent. Believe it or not, such a situation would be legal in New Mexico. If I refuse, does the bride or groom have recourse under New Mexico's Civil Rights Act? Discuss.
The second thing I take from this is the economic factor. Going back to the reasons for the Civil Rights Act, there is an argument to be made that a person must not be denied basic necessities due to their status as a person of color, a Jew, a lesbian, or whatever label garners protection. But what about a small business selling . . . auto transmissions? What about a law firm? A baker? A wedding photographer? At what point do any of us have a right to transact business with whom we please - and avoid those people with whom we don't want to do business? I think there is an argument that there is a First Amendment right of association issue here - should I be forced into a business relationship under the threat of monetary penalty? And what impact would that have on small businesses? While people will point to banking as an example of where deregulation led to abuses that led to economic crisis, is such regulation of small businesses needed? I used to have my own law and mediation practice. There could any number of reasons why I would not take a client - sometimes I could just see the "crazy" and realize that if I allowed this person to sign a retainer, they were likely to become an accounts receiveables nightmare. But if I am subject to such threat - and Huguenin must pay fines in excess of $6,000, which is not pocket change for many businesses - what does that do to me as a business owner and my business? I do not like the idea of the marketplace being overly regulated to the point where a simple business transaction becomes fraught with worries about liability. It is simply not good for business and that is not good for our economy. Let a photographer's liability be contained to equipment failure, bad talent, and hysterical brides and their mothers - and if they choose to refuse business for whatever reason, then let that business become the profit of another photographer who would be glad to have it (I have to think, is there some gay photographer who thinks, why didn't Willock seek one of us in support of the LGBT community?.
I suppose the easiest thing to do is to lie. I admit, I have done it. I have not denied services to a gay person, but I can tell you I have refused services to someone I just didn't like, whether it was their attitude or I felt our values did not mesh - like a woman who wanted to "take the kids away" from her husband because after the divorce, he came out of the closet, despite all evidence that he was a good father. While in times of candor I may simply say, "I don't like you, period," at other times my caseload was too heavy or I simply did not have the time I thought a case might need . . . and I would refer them to another lawyer.
I hope to go professional with my photography. I am not sure if I would shoot weddings, not because of who might be marrying, but because wedding photography does not appeal to me. But let's say two men come to me and want me to do their engagement pictures before they run off to a state or country where they will be legally married (I still find it amusing that Huguenin does not have the right to refuse to photograph a same-sex commitment ceremony at the same time the State does not allow same-sex marriage, but so be it). My first reaction is to pick up my camera - two people wish to memorialize their relationship, so what? But my second reaction, closely following on the heels of the first, is t6o question whether I am encouraging sin according to my Catholic faith. I will have to think about that. But to say simply that I would not photograph anyone based upon their sexual orientation? Nope. I want my photography to enhance people, and a person's sexual orientation just does not matter - their humanity does.
When I acted as an extraordinary minister of Holy Communion at my former parish in Santa Ana, St. Joseph, I was instructed to offer Communion to those who sought it, unless otherwise told by the priest not to give a person Communion (of course, a small child who might come up and ask for it would be denied if they had not made their First Communion). So if Mark and Peter, an openly gay couple in the parish came up for Communion, they got it. After all, reasoned the pastor when I spoke to him about this, he does not know for certain what they do in the privacy of their home or whether they had made a full Confession before coming to receive. Indeed, there is validity in that argument - a minister would not know whether anyone presenting themselves to receive Communion is in the right state to do so. Only the communicant knows that. And since it is between them and God, I presumably am not part of the equation if a sin is to be committed. But what if my conscience is screaming at me - say, if I see a man whom I know has had a long-time affair with another woman while married to another, get in my line (not unthinkable - after all, I heard a lot of "confessions" as a lawyer)? For someone who is not religious, this may seem trivial, but not for me.
BTW, for the hypothetical above, as a caterer, I would refuse the gig and let the chips fall where they may. Why didn't I make it a photographer in the hypo? Because in most states, photographers are mandated reporters for child abuse - and as a photographer, I would have filed a report of a minor pregnant with an adult male's child, cultural differences be damned.