I wanted to comment briefly on Elane Photography vs Willock.
The case is pretty simple. Vanessa Willock emailed Elane Photography asking if they’d photograph her and her partner’s same-sex commitment ceremony (New Mexico law doesn’t recognize gay marriages). Elaine Huguenin emailed back saying “we do not photograph same-sex weddings, but again, thanks for checking out our site! Have a great day.”
Vanessa Willock did not, it seems safe to infer, have a great day. In her later testimony, Willock reported feeling shocked, angered, saddened, and fearful by Huguenin’s response. She couldn’t bring herself to contact other photographers, because she was anxious that she’d get a similar response. (She did eventually hire a photographer recommended to her by a friend.)
Willock eventually complained to the New Mexico Human Rights Commission, asking for an injunction ordering Elane Photography to stop discriminating against same-sex ceremonies. Willock refused to ask for any “actual damages,” but asked for and was awarded her attorney’s fees, which were about $6000. (You can read the New Mexico Human Rights Commission’s ruling here, in pdf form.)
* * *
A few points about this case.
1) I’ve often seen Elane Photography cited as an example of why we should oppose marriage equality. That argument makes no sense. New Mexico doesn’t have marriage equality; therefore, lack of marriage equality will not prevent legal conflicts of this sort.
2) I agree with Eugene Volokh, who argues that the decision should be overturned on First Amendment grounds: “It seems to me that the right to be free from compelled speech includes the right not to create First-Amendment-protected expression — photographs, paintings, songs, press releases, or what have you — that you disagree with, even if no-one would perceive you as endorsing that expression.”
3) It’s wrong for Ms. Huguenin to discriminate against same-sex ceremonies, but this isn’t a wrong that should have a legal remedy. I’d say the same if Ms. Huguenin was discriminating against Jewish weddings, mixed-race weddings, or weddings of fat people. Artists, even commercial artists, have a legal right to decide what to say (or not say). The proper remedy for Ms. Willock would have been to let her friends and family know that they shouldn’t hire Elane Photography and why.
4) Those in favor of this decision tend to invoke a slippery-slope argument: “if photographers are allowed to refuse to photograph same-sex ceremonies, then we have to allow hotel owners to refuse service to gay couples, doctors to refuse to treat gay patients,” etc. This argument assumes, mistakenly, that it’s not possible for the law to make some sensible distinctions in this area. For example, most state anti-discrimination laws define “public accommodation” more narrowly than New Mexico’s law does, and this hasn’t led to any of the predicted “slippery slope” effects.
Sigh. I was really hoping the court would rule the other way on that one. Every gay rights group around should have been submitting amici; this will do way more harm than good IMO.
Wow, this case is a disaster. How on earth is this supposed to be enforced? If a photographer says they are too busy/not available on that day, are they going to be required to prove in court that they weren’t declining the job merely because they disapproved of the client? And if the photographer is forced to take the job, but the pictures turn out to be only mediocre, is that actionable?
It’s one thing to say you shouldn’t be homophobic, to say that society looks down on that. It’s a whole ‘nother kettle of fish to declare it illegal.
Well, if a photographer refused to do Jewish weddings, would that be legally actionable? I think that’s actually a pretty interesting question.
On the one hand, private contractor gets to make private contractor decisions. On the other hand, we have stuff like the Civil Rights Act for a reason — market forces tend to promote, rather than diminish, discrimination and bigotry. If businesses get to serve only majority clientele, they generally will. And this is all regardless of personal animus, which is its own affair.
Essentially, you get an environment where gay wedding photography is a special service, and thus costs more / is of lower quality. Like “black grocery stores” in the pre CRA south.
“Human Rights Commission”, eh?
When people start layering on extra courts and special commissions, instead of using the courts that already exist, look out.
As a liberal, who considers justice and equality more important than freedom, I take a folk-Kantian (and possibly slippery-slope) approach: permitting one person to discriminate is tantamount to permitting them all to discriminate (since there’s no way to make it legal for some but not all to). So the question is, then, is wedding photography in the category of services that should not be completely unavailable to someone, by law? I don’t think it is. This is the sort of malefaction for which the law may not be the best remedy.
But don’t interpret any of that as opposition to the tort of IIED.
[Quote from deleted post, deleted.]
Being an asshole is not illegal. And it should not be illegal. I am glad that we do not live in a country which makes assholery illegal, even though I continue to despise folks who act like assholes.
If you want to make more assholery illegal, then you are, IMO:
1) insufficiently scared of government; and/or
2) vastly overestimating the degree to which the imagined laws would actually stop what you dislike; and/or
3) vastly underestimating the unintended consequences of the laws on things you DO like; and/or
4) assuming that your own morality and preferences will not, in the future, end up on the “banned” list.
[More deletion. –Amp]
[shrug] There’s a cost to the [Civil Rights Act]. In terms of its (very limited) application it is justified at the moment. But any time that you use the CRA, you’re making a legal judgment that “____’s interests are morally superior to ____’s interests.”
Many folks (including folks like me, who are certainly not republicans) see the inherent threat in that formulation. Sure, we can live with it so long as there are really really strict limits to keep the benefits above the costs. The CRA is good; that doesn’t mean an expanded CRA would be good at all.
At a comment-writer’s request, I’ve removed his comments from this thread. Which seemed to require removing two responses to him, as well.
I’ve asked him to reconsider; if he does, I’ll put his comments back up, and also the two responses.
Sorry about this!
Why have you allowed yourself to be co-opted by the so-called Family Scholars site? Don’t you know who they are? Don’t you know that Robert George is behind it? Don’t you know how they ban anyone who challenges their Catholic worldview? You want might want to reconsider allowing them to use your name and reputation to give themselves credibility.
This case falls under anti-discrimination laws. Orientation is a protected class in AZ. Nothing to do with marriage equality. Unless you think it right that Jews should again be banned from country clubs you can’t refuse to photograph lesbian weddings. I have a business. I follow the laws. That’s what the law says. End of story.
For me, I simply can’t escape the fact that if the photographer had said “We do not photograph Jewish/interracial/non-white weddings”, then there would be general support for the court’s decision. Which means that the fact that there isn’t in this case is reflective of the fact that prejudice against homosexuals is still culturally ingrained in all of us (including myself, as I needed some time to realize this, while it should have been automatic).
I agree, there would be general support for such a decision — but that general support would be wrong, in my view.
I also agree that the difference in public reaction reflects still widespread homophobia.
But although being anti-homophobic is extremely crucial to me, so are some other values. In this case, I think the importance of autonomy and free speech for the photographer outweighs the very limited good that would come from having the government attempt to compel photographers to take photos they don’t want to.
And although I can’t know for sure, I think I’d say the same about an antisemitic photographer, a racist photographer, an antifat photographer, etc.
I don’t think the government should be allowed to compel photographers to take photos they don’t want to.
I think the government should be allowed to compel businesses to use non-discriminatory language when dealing with their customers.
What’s wrong here is not that the photographer refused to take the picture, it’s that they responded with a general statement about an attitude towards same sex weddings. If they had simply said “we are not available”, without explanation, then there would have been no legal issue here.
That may not be true, actually.
Let me describe what happened in this case in more detail:
First, Willock directly asked the photographer if she would take photos of a same-sex ceremony. The photographer responded with some mealy-mouthed stuff about being traditional, but didn’t directly answer Willock’s question. Willock then followed up, asking directly a second time. This time the photographer said she wouldn’t do a same-sex ceremony.
Willock then investigated further, by having her partner contact the photographer and ask about having the ceremony photographed, but this time without saying it was a same-gender ceremony. This time, the photographer expressed eagerness to be hired. Having gathered that evidence, Willock consulted a lawyer and then reported the incident to the NMHRC.
Now suppose instead that the photographer had done as you suggest, and refused to answer Willock’s question when Willock asked point-blank if she’d photograph a same-sex ceremony.
In that situation, it’s plausible that Willock would have suspected (rightly) that she was being discriminated against due to being a lesbian. Willock might then have invested further in exactly the same manner, and then made the exact same complaint to the NMHRC.
Amp, I think you’re right from a freedom of speech angle. Someone shouldn’t be legally compelled to create something against their will. And I do think that wedding photos *can* be seen as implicitly endorsing the ceremony, in that it’s speech that acknowledges those two as a couple. For someone who believes that a same-sex wedding/commitment ceremony is totally outside the definition of marriage, yeah, I can see the problem.
I think “no one would view the photographer as endorsing that expression” is actually not true. I mean, One Million Moms keeps freaking out when JCPenney acknowledges that gay families exist. They’re certainly assuming that that expression is supported.
If you show a group of anti-gay conservative Christians a wedding photography website that includes 5-10% same sex couples and 90-95% opposite sex (in keeping with the overall population of each), a significant number of them would assume the photographer endorsed same-sex marriage.
No, there’s no requirement that she put them on her website, but the point is that her taking the pictures is seen by a lot of people as an endorsement. Certainly she sees it that way.
I think Elane was wrong, and I think she was being a homophobic bigoted jerk, but I don’t think she was being a jerk in a way that should be legally prohibited.
I’m also not sure “businesses may not use discriminatory language with their customers” works here, both because, like Amp said, it could still be an issue and because a legal right not to be compelled to create speech you disagree with should include the right to say that you don’t agree with it and why that is.
Well, if a photographer refused to do Jewish weddings, would that be legally actionable?
I should hope not.
I mean, One Million Moms keeps freaking out when JCPenney acknowledges that gay families exist.
Actually, the absurd part of that ad is thinking that gays would actually shop at J. C. Penney’s.
First, let me say that I was wrong to invok legal issues, since I do not properly understand the law or the full situation in this particular case.
And clearly, my earlier post about the use of discriminatory language being the main problem was both ill-informed and, above and beyond that, not very well thought out.
But, having thought about this more, I think free speech is a protected right of individuals, but cannot be applied in the same way to businesses. A wedding photographer supplies a service, and I think it’s both fair and appropriate for the law to require this service to be supplied without discrimination. I agree with Amp’s original post that the “slipper slope” argument is flawed as the law can make a distinction between essential services (like doctors or schools) and inessential services (like wedding photographers). But I don’t think that’s the right place to draw the distinction. What if a coffee shop decided it would not serve homosexual couples? Or a bookstore? Neither is essential, but there is a reason a large focus of the civil right era was ensuring that retail and food shops do not discriminate. What is the essential difference between a wedding photographer who will not accept homosexual customers, and a malt shop that will not serve African Americans?
Businesses are run and owned by people. People have rights; ergo, their businesses have “rights”.
What is the essential difference between a wedding photographer who will not accept homosexual customers, and a malt shop that will not serve African Americans?
Briefly, the restaurant buttresses a constitutional right (travel) and the wedding photographer does not.
There are some kinds of services which are critical to the enjoyment of our (actual, enumerated, Constitutional) rights. The reason that “public accommodations” are not allowed to racially discriminate (while other kinds of businesses are) is that in the Bad Old Days it was impossible or extremely difficult for black people to travel, because they couldn’t use most housing or dining establishments and because the usual remedy for discrimination (go to a different business that wants your custom) isn’t often available when traveling; there’s one Motel 6 in Dead Cow, TX and if they won’t let you stay there you’re fucked. Private discrimination amounted to a de facto ban on travel; but travel is a Constitutional right. Ergo, there is a justification for slightly oppressing one class of businessman (hoteliers, restaurant owners) by taking away their rights to be assholes.
No such justification exists in the case of wedding photography. Wedding photography is not a public accommodation in any sense, it is relatively easy to avoid a business which discriminates and to find one that does not, and the consequences of some combination of circumstances where you cannot find one that doesn’t discriminate are relatively trivial. Your right to travel > my right to be an asshole; my right to be an asshole > your right to compel me to memorialize your union with fluffy, overpriced button-pushing. Have a parent or a friend do it. It isn’t rocket science.
Ergo, rejoice homophobic wedding photographers of the world: You can be as big an asshole as you want. The court is wrong, laughably wrong, and if the photographers appeal (as I imagine they will) the decision will be kicked to the curb and beaten savagely.
If the private wedding photographer has the right to not create speech she doesn’t agree with, does the photographer at Sears Portrait Studio have that same right? I can think of two reasons why not — first, the photographer at Sears is representing Sears, not just herself; and second, Sears Portrait Studio provides a service for anyone who walks in, rather than negotiating on a per-job basis — but I’m not certain that either of those would be a legal distinction.
Don’t sell yourself short: you’re right. When you are an employee, you lose your ability to complain about First Amendment issues. If you take a job handing out Nazi pamphlets, you can’t then refuse to hand them out and still keep your job.
What Robert is eliding here is that different states have different definitions of what constitutes a “public accommodation.” (also, that these rights are not explicitly enumerated in the Constitution — the basis of anti-discrimination law is the Civil Rights Act.) New Mexico’s definition is very broad, broad enough that, in this case, the court believes it includes wedding photographers.
Generally speaking, as an artist one has a first amendment right not to create some sort of art. But, additionally, the state has a valid interest in protecting minorities from discrimination, and so has generally required service-providers to serve minority clients even if it’s a hassle or even if they would get a market benefit from being segregated (as has been the case in the past.)
I think that the varying reactions here are, partially, whether one considers wedding photography to be a creative act or a generic service. This is interesting to me: coming from a family of photographers, I’m biased to see photography as art. Nonetheless, my instinct in this case runs in the opposite direction, and I am seeing wedding photography as a generic service.
It occurs to me that this discussion is conflating three points:
1) Whether or not this ruling is just.
2) Whether or not this ruling is wrongly decided.
3) Whether or not this ruling will, eventually, be overturned.
Maybe we could all be clearer about that? I’m trying to argue that this ruling wasn’t wrongly decided.
yrs–
–Ben
Robert sez: “… but travel is a Constitutional right.”
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Is that in the same section of the Constitution where the right to abortion is? Or in a different section?
If you’re looking for specifics: Do you mean “wrongly decided” as in “from a legal perspective, the ruling is an accurate reading of the Arizona and United States constitutions” or “wrongly decided” as in “it was a really fucking bad idea?”
G&W – you are the second person to mention Arizona in this thread, but the state in which this happened was New Mexico.
I don’t understant this. It’s being enforced, they were taken to court and there’s an order for $6k costs. If they don’t pay the order they’ll send bailiffs in.
I think there’s a sense in which a homosexual wedding celebrates homosexuality, while selling a black person soda in a Malt shop doesn’t celebrate their race. Would he still have discriminated against her if she’d had been marrying a guy, but they were still gay? That’s probably the relevant question.
Religion’s a good analogy here. I can see the benefit from not being able to discriminate in the provision of an incidental service on the basis of religion, but should I have to take actions which will actively promote something I fundamentally disagree with?
Eytan, thanks for the acknowledgement of having made a mistake before. That’s distressingly rare on the interwebs. :-p
It’s actually not established that this photographer wouldn’t accept homosexual customers. I think it’s plausible that if a lesbian had come to hire her for her straight daughter’s wedding to a man, for example, she would have accepted the commission. Similarly, I assume that if the heterosexual mother of a lesbian tried to hire Elane Photography for her daughter’s same-sex ceremony, the photographer would have turned that job down.
Which brings me to one essential difference between a wedding photographer and a malt shop, which is the First Amendment. A photographer has (or should have) a right to decline to take photos expressing joy in an occasion she disagrees with. I don’t think any such right applies to a malt shop refusing to serve a customer.
By the way, I’m not sure that the difference between a business and an individual is at all clear in this case. Elane Photography consists of one photographer, and her husband who keeps the books. I don’t even know if its incorporated, or if it’s just the name they do business under. But the business vs people distinction, in this particular case, seems like a distinction with little difference.
Curious:
“Is that in the same section of the Constitution where the right to abortion is? Or in a different section?”
In brief, no.
james @23: If you are firmly opposed to interracial marriage, should you be allowed to refuse to serve interracial couples at your malt shop?
I haven’t read the opinion yet, but I’m assuming (based on what Amp says) that the issue is that photography, unlike (say) serving malted milkshakes, is artistic expression. If this had been a wedding caterer rather than a photographer, presumably it would have been a non-issue. Though I’m waiting for a bigoted chef to argue that the preparation and presentation of food is artistic expression so it’s totally OK for them to refuse to serve certain people.
Re making assholery illegal, if you don’t want to make more of it illegal, IMO, you’re either assuming that all existing efforts are counterproductive, or you’re OK with the kind of assholery that’s currently legal. Or you’re a defense attorney. ;)
That wouldn’t have anything to do with the content of the expression, though. I mean, I can see the expression argument extending into not making cute little fondant cake toppers representing two brides, but the artistic expression of a wedding cake itself isn’t going to change whether it’s for a same-sex couple or an opposite-sex couple.
But the ruling is that the photographer can’t refuse to photograph the wedding. To enforce it, she must be made to photograph the wedding. This isn’t a case of “there’s a fine for discriminating against homosexuals,” it’s that she isn’t allowed to not take a specific action. Fining her isn’t bringing her into compliance with the law.
I’m both, for what it’s worth. I think efforts to make people nicer are pointless and ineffective, and I’m honestly okay with the general level of douchebaggery currently in existence. I only want things like violent crimes motivated by that douchebaggery (and those that aren’t, for that matter) banned.
@A Gay, the law frowns on “specific performance”, which is what forcing the photographer to take pictures would be; it uses money damages instead. If you read the order Amp linked to, you’ll see it doesn’t say anything about Elane Photography being forced to do anything.
The order is a little odd because normally Willick would be awarded money damages as well as attorney fees, but apparently she said she didn’t actually want money damages – just the principle of the thing and pay her lawyer, apparently.
I’m not a legal scholar by any means so I can’t tell if wedding photography is an essential service where their clients need protection against discrimination or not. What I’m thinking is that such a ceremony is (one would hope, or at least I hope people participating in a commitment/wedding ceremony are serious about making a lifetime commitment even though I understand that life happens and it may not be a permanent commitment after all), is, as I was saying, a once in a lifetime moment. The point of having a photographer is to commemorate and remember this special time and gathering of family and friends. As such, having an good and enthusiastic photographer who is motivated to do a good job seems like an essential thing. Forcing a photographer to take photos is dangerous because it would be all too easy to frame shots poorly, miss important moments (the first kiss, cutting the cake, etc.), do a poor job with lighting and settings such that pictures come out over/under exposed and out of focus. Suing after the fact might help to ruin a bigoted photographer’s business as a bit of revenge, but nothing is going to give a couple new pictures at a later date if it is screwed up at the “happy moment”. This is a major difference between a wedding photographer and Sears family picture studio. The family picture studio session is a posed event for the purpose of making the picture, rarely anything more. If the pictures turn out to look like crap then don’t buy any prints and have a new set of pictures taken elsewhere. I guess there could be especially meaningful studio photos (last pictures before someone dies/leaves town/whatever), but in this day of digital photography where a customer can review and pick pictures before they leave the studio, even in such a case it would be easy to insist on additional photos being taken if they all turn out to be unusable. Thus, I can see it being actionable to complain about a pattern of poor service to whichever clientele the photographer doesn’t like in the setting of a studio, this is more of a straightforward on-demand routine service. In the case of a wedding photographer, it isn’t worth the risk of getting a disgruntled photographer who doesn’t want to be at a service due to personal prejudices. Find someone who is enthusiastic and let the world know to avoid the prejudiced photographer, but it is pointless to try and force a prejudiced photographer to photograph an event unwillingly, whether legally discriminated against or not.
Well, I feel shocked, angered, saddened, and fearful by Vanessa Willock’s response to Huguenin’s response. Ergo, she should retract her opposition to the First Amendment and pay my attorney’s fees.
The malt shop analogy is, from a rights perspective, coming at this from the wrong side.
The rights question is really this:
If you own, operate, work at, invest in, and build your dream malt shop, why should the government have any say at all in who you do, or do not, let in the door? Why can’t you refuse to serve people who are Democrats, whites, smelly, goth, tall, fat, short, disabled, Christian, preppie, young, old, male, black, etc.?** After all, nobody thinks that the government should be able to make you room with, talk to, befriend, be polite to, voluntarily assist, work for, sell personal items to, or otherwise deal with those folks. You don’t have to let them in your yard sales; you don’t have to answer their Craigslist ads. What about milkshakes is so darn important that it justifies the government telling you what to do with your milkshakes?
The answer to that is not simple and it certainly isn’t intuitive from a Constitutional reading. It’s not even especially intuitive at all, even from the case law. But it’s safe to say that it’s a lot more complex (fortunately) than “a majority of us don’t agree with the bases for your views” or “racism bad, milkshakes good.”
(actually, there are pretty good arguments against certain aspects of the CRA, when it comes to specialized issues. There’s a big government interest against having %ages of its citizens who cannot find a place to stay, or who cannot enter a supermarket. The government wants you to eat and sleep. But if there’s a Carvel next to a DQ, it’s not simple to explain why one of them couldn’t discriminate if they wanted, at least from a Constitutional perspective.)
It is such a complex and (from a rights perspective) risky area, that it seems very unnerving when the boundaries of those rights appear to be shrinking.
**And of course you can. In many instances you can refuse to serve the young, goth, preppie, republican, and smelly.
@gin-and-whiskey
You know, the Civil Rights Act is not that complicated. If we want to evaluate a law, we don’t try to derive it from constitutional first principles*. We instead say “is society better off for this law, or not?” In the case of the Civil Rights Act, I think it’s pretty painfully obvious that society is better off for the law — huge swathes of citizenry living under horrific conditions were relieved.
Myself, I’m not willing to repeal the Civil Rights Act because someone’s feelings got hurt.
Whether the CRA applies in this case is, of course, a open question. I think that the New Mexico courts enforced New Mexico law to the best of their ability. I would not be surprised, though, if this case lands in federal court and is overturned on First Amendment grounds.
yrs–
–Ben
* In fact, if we could derive all statutory law from constitutional first principles, we wouldn’t need statutory law, right?
No we don’t say that; not at all. That would result in a set of laws which almost universally favored majority groups.
Think of it this way: if 99% of the folks in a country were homophobic, “ban homosexuals” is a society-improving move since it makes almost everyone much happier, and only impacts a few unlucky homosexuals. Obviously, nobody wants that. Sure, one could try and True Scotsman around it somehow (i.e., in order to count as “good society” it has to match your own idea of “good”) but it doesn’t really work that way.
Protecting the rights of individuals is, as a process, contrary to taking a broad societal view. If we could trust “society” to make “good” decisions that protected individuals, we wouldn’t need all those pesky individual rights in the first place.
Wow, you have a strange definition of “society” and “better.” That apparently includes society being worse off, on the whole, for the passage of the Civil Rights Act?
yrs–
–Ben
Ben, maybe I’m being thick, I don’t see where G&W said that or even implied that. Could you clarify or provide a direct quote, please?
“Society being better off for this law” may well be a component, even a major one, of the legislature’s motivation in passing a law.
It is totally alien to the courts. The courts interpret whether the law is constitutional, whether it’s being correctly applied, resolve conflicts between competing statutes, etc.
But no American court is empowered to uphold or dismiss laws on the strength of “society being better off”. The very idea is appalling.
Did you miss the “Obviously nobody wants that” part of my last post, perhaps? If so, that would explain your (incorrect) guess as to my worldview.
With respect to the CRA, I’ve said precisely the opposite (see the last sentence of post #6) I’ll say it again: The CRA is (overall) good in the balance. But that doesn’t mean the CRA is problem free. It also doesn’t imply that “more CRA” would be better.
With respect to my odd definitions: I have no idea what you mean. I assume (hope) that you don’t think there’s some superobjective “better” for society, at least not in the context of government: “better” is defined by whatever people want it to be. Whether it’s “hard working” or “church going;” “thin” or “fat” or “covered in tattoos,” defining societal aims is usually the role of whoever happens to be in power.
What do you prefer? What definition do you think I should be using?
So, one of the ways I’m trying to analyze how I think about this is flipping it around. What if the photographer specialized in prom and senior portraits and had refused to do portraits for a Purity Ball? Based on this ruling, they’d be required to do it, wouldn’t they?
I don’t think purity ball adherents are a protected class under New Mexico law. Maybe a better example would be a prom photographing business that refused to take a job photographing a Catholic private school’s prom on the grounds that she didn’t think Catholics should run schools.
If the photographer in question advertised that she only worked with clients if their project matched her interests, and had a history of sometimes refusing clients because their relationships were not emotionally healthy (or whatever non-suspect class based reason), I think she would have had a better argument that her business was not a public accommodation. As it stands, she was running a business photographing events where her only criteria seems to have been: will they hire me and are they not holding a same-sex wedding? If she had a more selective criteria, then she could have argued that her business was like a private club, but private clubs don’t advertise and take all comers except for members of a suspect class.
I think it is worth noting that the photography business in question sometimes used subcontractors for doing the actual photography, so it is not that Elaine Huguenin should have forced herself to take the photos, but that Elaine Photography as a company should have taken the contract. If Elaine had subcontracted it to someone who wasn’t a homophobe, it is hard to see how Elaine Huguenin’s free speech rights to not create artwork whose meaning she opposes would have been meaningfully infringed.
Not as such, but it’s a religious activity that’s considered a big deal to some Christian groups. It could easily be viewed as religious discrimination. I used that particular example because I *am* opposed to purity balls, so it makes it easier to put myself in her shoes than trying for “well, what if I were a bigoted jerk” examples.
Interesting. I didn’t know that she did use subcontractors. That does suggest she could potentially have been able to subcontract it out. Though I wouldn’t be surprised if everyone she uses feels the same way.
Amp, I think I disagree with you on the crucial point that I don’t think wedding photography counts as “speech” for the purposes of the First Amendment. It’s certainly information, yes, and even to some extent creative expression, but that’s not the same thing: a computer programmer creates information and any programmer could tell you it involves significant amounts of creative expression, but computer code is not “speech”.
Why not is a little more complicated, but I feel like it’s because there’s no argument behind it. It’s a photograph of a wedding; it’s intended mainly to document the wedding, not to express the thoughts of the photographer.
The point about artistic freedom vs. business discrimination is a complex one. No artist should be compelled to work for any client, and a freelancer is within their rights to refuse any job for any reason. But at the same time, can a small business be permitted to discriminate among its customers on the basis of protected-class status (race, religion, sexuality, etc.?). And if intervention against business/client discrimination is appropriate, where does the line exist between ‘business’ and ‘artist’?
Beats the heck outta me.
BlackHumor, could event photography be considered work for hire? Thus creative expression on the part of the couple (at least, for First Amendment purposes), not the person actually operating the camera.