Limits of Expression?

http://jonathanturley.org/2013/08/23/new-mexico-supreme-court-rules-photographer...

This is an interesting, and complicated, case. It touches on the rights of free expression, religious freedom, and the power of the State. Note that the case arose under the State Constitution, not the Federal one.

The author of the blog post eloquently laid out the complications, and I must say that I can do no more than echo his conclusion: "In the end, I remain torn by this ruling. I see the logic and the precedent for the decision. However, I have lingering discomfort with a required expressive act like photography."

That is, I'm not sure just which side to come down on.

This seems to be one of those examples where the freedom of expression and the rights of citizens to equal treatment are set up to come into conflict. I find myself wondering if there aren't alternative approaches we could adopt that would leave everyone's freedoms intact instead of forcing them to clash.

If the photographers had advertised "specializing in faith-based ceremonies" for example, then isn't it likely they never would have been approached by the client?

After all, one doesn't go to a kosher butcher and then demand a massive, non-kosher ham. One doesn't go to a Turkish coffee shop and then bitch that they don't serve wine.

that's not quite the same thing, I know -- people are different from sandwiches. But it strikes me that the reason these situations keep coming to light is because what's considered normative relationships for society has been evolving, and the way people who aren't evolving with it seem to cope is to fall back on Constitutional protections as their first line of defense, instead of their last.

I'm not trying to denigrate the importance of the First Amendment, here. Just wondering at what point we as individuals determine that compromise is not an option and this point is our line in the sand by which we defy all challengers in the name of our First Amendment rights. Does anyone really want theirs to be "I don't want to take pictures of gay couples."?

Well, many cases that helped shape our current understanding of our rights under the Constitution involved people who were, shall we say, less than pleasant.

I agree that drawing a line in the sand for 'not taking professional pictures of gay couples' seems petty; but obviously that was not the case for the owners of the company. They felt strongly enough about it to risk (and lose) a substantial amount of money.

Apparently a photography studio which present itself as serving the "public" thus is considered in the same situation legally as, e.g., a restaurant that poses as serving the public.

Photography business instead of restaurant, sexual orientation instead of race - it is all the law. OK, then, why is there a problem here?

Are any of you in agreement with Rand Paul (before he began to lie about his actual beliefs) that the public accommodations part of the Civil Rights Act of 1964 was wrong and should have never been enacted, because such is unconstitutional, regardless of what the SCOTUS says?

Surely some or all of you aren't that crap-brained, are you?

>4 BruceCoulson: They felt strongly enough about it to risk (and lose) a substantial amount of money.

But not strongly enough about it to make their position clear at the outset, which is what I was trying to convey, perhaps not very successfully. We had a discussion here awhile ago about a story of a woman who was refused service at a barber shop--ostensibly because the owners were Muslim and did not want to cut a woman's hair. It was, from what anyone could tell, the same kind of scenario. The "religious" nature of the company was not in evidence until suddenly the owners didn't want to serve somebody.

They may not have felt the need to make their position clear. Many people tend to not realize that others don't automatically know what their feelings are on a given topic, especially if they associate primarily with similarly-minded people.

Yes, this is a failure on their part. It's a common failure, though.

But it's not often that people are willing to put real money on the line in support of their beliefs.

>6 southernbooklady:: "The "religious" nature of the company was not in evidence until suddenly the owners didn't want to serve somebody."

But once the "religious" nature of the company is in evidence, i.e. by refusing to photograph the gay couple's wedding, couldn't the gay couple take the same approach that they would have if the photography company had said it upfront? After all, that's what you suggest in 3: "If the photographers had advertised "specializing in faith-based ceremonies" for example, then isn't it likely they never would have been approached by the client?"

The focus here seems to be that the people taking the photographs should compromise their views in order to accommodate the wishes of the gay couple. Should we also have the reverse conversation? I.e., should the gay couple compromise their views by accommodating the photographers' choice not to photograph their wedding?

(Again, I want to say that I'm not sure what side to come down on this yet. I can see good arguments for both sides, and I haven't yet been convinced to throw the balance one way or the other.)

>8 nathanielcampbell: But once the "religious" nature of the company is in evidence, i.e. by refusing to photograph the gay couple's wedding, couldn't the gay couple take the same approach that they would have if the photography company had said it upfront? After all, that's what you suggest in 3: "If the photographers had advertised "specializing in faith-based ceremonies" for example, then isn't it likely they never would have been approached by the client?

Isn't that what I suggested as a possible compromise? You aren't likely to take your custom to a business that isn't going to be sympathetic to your wishes.

>7 BruceCoulson: Yes, this is a failure on their part. It's a common failure, though.

Right. What's considered normative is changing, and they are slow to adapt.

Ultimately I come down in favor of anti-discrimination, which in this case would mean the photographer was in the wrong. It was a contractual agreement after all. And I am constantly on guard for the rights of the individual against the corporate in cases like this (although a small business can hardly be said to be corporate, it is not "an individual").

But I can see why person might not want to do something because of their personal religious convictions, and I don't want to see them forced into actions that cross their conscience. So when that individual is acting in the role of a commercial enterprise, I think compromises have to be made if they want to preserve their religious...integrity? One of which might be to market to a specific kind of clientele. Sure, their market share would drop, but their principles would be unchallenged.

> 3. If the photographers had advertised "specializing in faith-based ceremonies" for example, then isn't it likely they never would have been approached by the client?

I don't see how publicly proclaiming their discriminatory bias would have changed their legal liability. Wouldn't that be like a restaurant posting a sign saying that they "specialize in serving white customers only"?

New Mexico law doesn't give any cover to bigotry related to sexual orientation.

>9 southernbooklady:: "Isn't that what I suggested as a possible compromise? You aren't likely to take your custom to a business that isn't going to be sympathetic to your wishes."

Perhaps I misunderstood you. My point was that the gay couple chose NOT to compromise by suing instead.

> 9. You aren't likely to take your custom to a business that isn't going to be sympathetic to your wishes.

Presumably the wedding party liked what they had seen of the photographer's work and wanted the same for themselves. Apparently, the photographer's service included the creation of a wedding album and a password-protected website for family and friends. These, along with evidence of the photographer's proficiency at their art, might have been the type of things the clients wanted and which they couldn't necessarily have received from other photographers.

Who in their right mind would hire a photographer that did not want to do your wedding? We just went through that (and found a wonderful photographer), and there is no way I would pay someone to record an important event like that, who did not want to do it.

What happens if the photographer decides to only shoot one partner? Can they couple sue? Is that an abridgment of freedom of expression? After all, they knew who they were hiring, so should they be surprised if the results are not what they expected?

Or, worse yet, suppose they are not happy with their photos, but there is no overall, obvious reason why? (That is how I feel about the pics from my first wedding.) Will they say they are discriminated against?

As a pastor, I never felt I HAD to marry anyone. (And there were some photographers that I refused to allow work at weddings I conducted!) I understand the need to provide services to all people, but it seems some services are more personal than public. Serving food is relatively impersonal. But our photographer was so good because she was able to draw out of us things that made for good photos. The photographer for our first wedding could not. (He went on to work for National Geographic, a wise choice on his part, because he sucked at weddings.)

BTW the reasons I would refuse to marry people were along the lines of, "As far as I can tell, this couple has no business getting married." Like the couple who came in drunk. Or the one where the guy did almost no talking during any of our sessions.

The bigots missed a trick: if they had said "fair warning--I'll take your dirty lesbian money and send every cent of it to the Westboro Batshit Church", I bet the ladies would have looked elsewhere without much ado. I'm dead certain that on several occasions I received horrible service because I was a) young b) female c) alone d) queer e) some combo of the above, and yet had little chance of proving bias because I wasn't denied service altogether.

Too bad about the grief the women went through, but it's true that as reinforcement of a general principle this may yet have some good come out of it. To begin with, decent people now know to avoid that business.

According to Becker (Economics of Discrimination), economic competition will tend to drive discrimination out of markets.

Who in their right mind would hire a photographer that did not want to do your wedding?

Who in their right mind would turn down paying customers based on their sexual orientation?

>17 Jesse_wiedinmyer: If you turn down a paying customer based on any criteria you lose a paying customer. If you force someone to photograph your wedding who doesn't want to do so you potentially end up without the sympathetic photographic record that you wanted of your most important day. I'd agree with Arctic-Stranger that a wedding photographer needs to have not only professional skills but the right attitude and empathy, which I presume would be lacking from someone who had been forced to do it by threat of litigation. The fact that you have a legal right to something doesn't automatically make it wise or responsible to demand that right.

As someone who spends more time dealing with some of the more basic human rights, I also find it a trifle troubling that being able to have the wedding photographer of your choice is now apparently viewed as a human right to be protected by the constitution. Of course all should have equal rights. But a wedding photographer?

18> What matters here is not the type of service offered or sought after. What matters is the fact of discrimination itself. What is protected by the constitution is not (as you formulate it) a right to a wedding photographer (which is daft), but rather the right not to be discriminated against in a commercial relationship that is otherwise equally accessible to everyone who can pay for it.

>19 theoria:

I think the expressive nature of the act deserves some consideration. She isn't merely offering a service, she's creating art works. Imagine for a moment it was a writing or a songwriting gig. People write stuff for money—novels, poems, songs, etc. That's "commercial." Consider that religion is also a protected class too. If Theoria advertises a poem-writing service for events, can I really in the name of non-discrimination force her to write poems for my ordination as a priest? For the new Pope? Maybe I can force her to write poems performed at a church, but not pro-Catholic ones. If so, can the photographer decide to only take pictures that cast a negative light on gay people?

A service that sells chairs or tents to weddings is one thing. But, but it seems to me that when non-discrimination requires that state power be used to force us to write or otherwise create art against our religions, well, I'm afraid the Founder's care—no, obsession—with freedom of expression and of conscience is pretty dead.

Incidentally, since we all agree on freedom of speech here, there can scarcely be a legal bar against the photographer expressing herself on the topic--wearing a t-shirt that opposes marriage equality, printing such a message on the back of photos. etc. She would equally have been protected if she had a public policy of donating all money from same-sex weddings to organizations that seek to "fix" homosexuals. Right?

>19 theoria: Ah yes. So it's not actually accessible equally to everybody, only to those who can pay for it. You are discriminated against in terms of which rights are available to you depending on how much money you have. Now I understand the moral superiority of that system. Capitalism in action.

>20 timspalding: She would equally have been protected if she had a public policy of donating all money from same-sex weddings to organizations that seek to "fix" homosexuals. Right?

Right. What's at issue here isn't her right to have an opinion or even to express it. It's what happens when that expression is made in the form of discrimination. Suppose she didn't believe in interracial marriages and refused her services on the same grounds?

I agree that photography is "expressive." But I also think that when art meets commerce, compromises have to be made. In fact, I'm positive that photographer has taken photographs in the past that were not what she personally preferred, but what her client wanted. She does weddings, after all--nothing brings out the control freak in a person like having to plan a wedding. So I question how much "art" we can claim here just because there is a camera involved.

The photographer is also not, as one commentator pointed out, operating in a non-contractual way--that is, wandering around taking pictures of weddings on her own initiative and then trying to sell those pictures to interested parties. She's advertising her services in the common market place. That brings her into the realm of commerce and thus into the realm where businesses have to abide by anti-discrimination laws.

>21 John5918: So it's not actually accessible equally to everybody, only to those who can pay for it. You are discriminated against in terms of which rights are available to you depending on how much money you have. Now I understand the moral superiority of that system. Capitalism in action.

You sound snide, but I think if you stopped and considered the situation you'd question this particular moral high horse. Yes. Capitalism in action. Where the only thing that should determine whether or not you can avail yourself of a service is if you can pay a fair price for it. It certainly is irrelevant that you might be female, or black, or Jewish, or gay.

>22 southernbooklady: Snide? Maybe. I had just come from a long conversation with a Kenyan midwife about the positive results of Kenya's decision to provide free access for all mothers-to-be to have their babies in a medical facility. That sounds like a pretty basic human right to me, and a big step forward. When I then see people going on about the right to the wedding photographer of their choice, and then saying that equal access only exists for those who can pay for, I can't decide whether it is offensive or ridiculous or both.

I am against discrimination, and I say that having spent most of my adult life living under regimes which discriminate against most of their citizens, including myself, to a far greater extent than even the most backwards of western liberal democracies. Seeing people dying (literally) for their rights does leave me rather unimpressed about a wedding photographer refusing to do someone's wedding for whatever reason, even if it is a bigoted reason with which I disagree completely. If a wedding photographer refuses to photograph someone who is female, gay, Jewish, black, Catholic or whatever, I would probably say they are ignorant and bigoted but I would not try and turn it into a human rights issue.

Here's another example of freedom of religion in action:

http://www.dailykos.com/story/2013/08/23/1233276/-Tennessee-church-takes-extreme...

Now that church has a perfect right to include and/or evict anyone they want, and we outside the doors can only shake our heads and express our own opinions by voicing the full weight of our disapproval (or approval). But it is important to grasp the context and the full range of possibilities when we start to talk about freedom of religion.

And I think religious people may well want to ask themselves if this is really the place they want to pitch their flag when it comes to defending that freedom--on the right to un-moderated, unchallenged discrimination? Is this the religious identity you want to adopt?

ETA: >23 John5918: Seeing people dying (literally) for their rights does leave me rather unimpressed about a wedding photographer refusing to do someone's wedding for whatever reason, even if it is a bigoted reason with which I disagree completely.

In America we call this sort of thing "First World problems"

But shall we dismiss small cases of discrimination as "not worth the bother" just because there are large cases elsewhere in the world. Aren't we each best working for a better society no matter where we are found? War zone or shopping mall?

>24 southernbooklady: I think perhaps what I'm trying to point out is how ridiculous things become when you take them to extremes. The photographer was being ridiculous and so are the church members to whom you allude. But so are people who make a court case out of having to find another wedding photographer. Or maybe I just come from a less litigious culture?

We are a very litigious culture here. Worse than the Romans, I think.

But I also think that in your dismissal of the apparently trivial nature of the case you might be ignoring the larger cultural context--where gay rights and gay marriage has been the subject of fierce debate nationwide. So complaining about a wedding photographer in this case is analogous to those black guys all those years ago who insisted at sitting at the white only lunch counters. Are you really going to tell them, "why don't you just find somewhere else to get a sandwich instead of making such a big deal about this"?

ETA: I meant to say, that's one the perspective of the issue. Tim, Nathan and the photographer herself were arguing for a different right--the right to freedom of expression. To in effect, take the kinds of pictures she wanted to take in accordance with her beliefs. That's the dilemma here. It isn't trivial.

If a wedding photographer refuses to photograph someone who is female, gay, Jewish, black, Catholic or whatever, I would probably say they are ignorant and bigoted but I would not try and turn it into a human rights issue.

It IS a human rights issue. It's a facet of anti-gay discrimination, other facets of which include execution, incarceration, repressive legislation and rampant cultural propaganda which places any gay anywhere in a state of latent endangerment.

Your argument (I call it "the burning house"--is your house on fire? No? Buzz off with your silly whingeing, then.) has been traditionally used to dismiss and devalorise the experiences and the needs of the oppressed, just like you are doing in this case.

#26

That's the dilemma here. It isn't trivial.

I'll beg to differ. The dilemma is trivial. The photographer is condemning homosexuality on moral grounds. Apparently, unless the happy couple accord with her notions, she cannot in good conscience take their pictures.

How does she go about ascertaining the morality of the heterosexual couples? Does she check whether they have criminal records, previous marriages, extra-marital relations or underage sex? What about sexual practices? Are they honest taxpayers? Terrorists? Do they lie to mother?

Unless this woman spends some serious time soul-searching and testing all the customers, the "dilemma" boils down to discriminatory prejudice and nothing more.

>26 southernbooklady: I don't think that it is very analogous to those first few black people who challenged white supremacy. They had to do so in order to initiate (and eventually win) a nationwide debate which had barely started. As you yourself say, the fierce nationwide debate on gays already exists, and it's quite clear which direction it is going, as more and more states allow gay marriage, and pretty wide-ranging anti-discrimination legislation is already in place. You've already won, and rightly so, and I support you 100% on that. I just don't support trivial litigation. Wedding photographers may indeed be a first world problem, but if so they are a problem the world could well do without.

>28 LolaWalser: Unless this woman spends some serious time soul-searching and testing all the customers, the "dilemma" boils down to discriminatory prejudice and nothing more.

Well, I wasn't evaluating her stance, which I find ridiculous, but considering the possible arguments for precedent. And yes, waging this battle for the right to your own freedom of expression by claiming a right to be discriminatory because it is your religion seems just nuts to me.

On the other hand, there are accommodations that have to be made in deference to people's religious beliefs. I just don't think discrimination is one of them. I don't think religious people really want discrimination to be one of them.

But I wouldn't want such a decision to bleed over into other, less vital areas. I wouldn't want Jewish prisoners forced to eat pork, for example. Or Muslim women forced to uncovered their heads in the workplace because of some company policy. I think we should honor a person's conscience even in the middle of a draft if they say they don't believe in killing and won't fire a gun in a war. Stuff like that.

25> I think perhaps what I'm trying to point out is how ridiculous things become when you take them to extremes.

The act of discriminating against a person because of their sexual orientation is ridiculous in the extreme (see purported religious beliefs about sexuality). But you seem to find legal efforts to address discrimination to be ridiculous.

>29 John5918: You've already won, and rightly so

You think so? The Civil Rights Act was passed in 1964 -- almost 50 years ago -- and this country is still contending with deep problems caused by internalized racism. The Stonewall riots happened in 1969 and we are only just now at the point where we can talk about homosexual people as if they deserve rights.

I suggest you let go of your fixation on the phrase "wedding photographer." Civil rights in the United States is slowly moving forward (despite the occasional leaps back into the past, witness the passage of a draconian voter ID bill in North Carolina last week) but it is a work in progress, not a done deal.

#29

No, actually, nobody "won". There have been certain "wins", but as this case and god knows how many other incidents proves, anti-gay discrimination exists. Your attitude implies that only something like what Matthew Shepard suffered qualifies as something to worry about.

Apart from the inherent vileness of such an attitude, it is plain stupid, because it blinds itself to the common root of all discrimination.

By the way, racism is still around too. I realise you're way too busy with REAL problems and all, must've missed the memo.

#30

Not wanting Jewish prisoners to eat pork is not wanting to torture prisoners. (And that's in principle. I know more Jews who partake of ham than those who don't. Let's not even go to the shrimp.) I fail to see any comparison whatsoever to a professional running a public business who denies to perform professionally for a customer because her religion condemns the customer on moral grounds.

And draft? The US doesn't even have a draft.

"Honoring conscience" sounds nice and noble until it becomes clear the person's conscience tells him to treat you like dirt. Clearly there must be limits to what's honoured and what's not.

>31 theoria: The act of discriminating against a person because of their sexual orientation is ridiculous in the extreme

I think I already said that in >25 John5918:. Thank you for confirming my view. I have not said anywhere that I "find legal efforts to address discrimination to be ridiculous". I support anti-discrimination legislation. I have said that I find this particular instance of litigation to be ridiculous.

>32 southernbooklady: I suggest you let go of your fixation on the phrase "wedding photographer."

Well, that's the particular case raised by the OP, and thus is the particular case which I am addressing. If it were a different case, I would assess that different case on its own merits.

As you say, civil rights in the USA is slowly moving forward, and as I said in >29 John5918:, it's clear in which direction it is moving.

>34 John5918: I have said that I find this particular instance of litigation to be ridiculous.

Because it involves a wedding photographer instead of, say, a taxi cab driver? a horse-and-buggy tourist cart? a hairdresser? (all situations which have raised similar questions recently).

Is not the principle of the thing what really counts here?

>34 John5918: As you say, civil rights in the USA is slowly moving forward, and as I said in >29 John5918:, it's clear in which direction it is moving.

Given that there is a concerted --and so far successful -- effort where I live to disenfranchise great swaths of the voting public--targeting especially students, poor people, (and by extension, black people), I find myself unable to feel as sanguine about the state of Civil Rights in this country.

Because it involves a wedding photographer instead of, say, a taxi cab driver? a horse-and-buggy tourist cart? a hairdresser? (all situations which have raised similar questions recently). Is not the principle of the thing what really counts here?

Two thoughts:

1. Just because you recognize a principle doesn't mean you can't see differences in the scale of the application of the principle. If I'm not mistaken, John was elbows-deep in the human fall-out from the recent Sudanese war, with its ethnic cleansing, mass killings and rapes. From such a vantage point surely you can see that the legal right to compel a wedding photographer to take pictures of you against her conscience is hardly rocking his world.

2. If it's the principle of the thing that counts, one might notice a difference in principle between a service that requires expressive involvement, like photography or (as I raised above) writing poems, and things that do not, like driving a taxi. Can we agree that a romance novelist who advertises his services for hire may decline to write a gay romance novel, or does equal protection absolutely trump free expression? Most photographers would say their work is just as expressive, and ought to be just as protected, as novel writing.

35> What is most important is the fact that the law, which is general and abstract, doesn't differentiated between taxi cab drivers, hairdressers, wedding photographers, restaurant owners, etc. Whether JTF finds this ridiculous -- the making of a case against a bigoted wedding photog -- is, fortunately, besides the point from a juridical standpoint.

>37 timspalding:

US law regularly distinguishes between commerce and commerce that involves speech, not to mention regular things you do and speech. The NM court did not do so here. That doesn't mean other courts will not, and that free speech concerns necessarily fall before equal-protection concerns.

A final thought. If wedding photography is not a special expressive commerce, it's just like any other sort of commerce. Surely it would be illegal to give blacks a 41% discount off a hotdog or a cab ride.

Can we therefore agree that it is illegal for this photographer to offer 41% discounts for same-sex weddings? SBL?

http://www.jandjphotography.net/same-sex-weddings

>38 theoria:: "doesn't differentiated between taxi cab drivers, hairdressers, wedding photographers, restaurant owners, etc."

But the whole point of this thread is that the photographer does introduce a different legal situation from the taxi driver and hairdresser: the question of freedom of expression. (Did you even bother to read the link in the OP, which was all about exploring the complications that this adds to the situation?)

>39 timspalding:: You mean to say that the photographer is discriminating against non-homosexual couples? Outrage! Scandal! Blasphemy! Someone should sue them!

(Or perhaps we can just all get over ourselves, choose not to overreact and clog the court system with yet another stupid lawsuit, and just find another photographer.)

Thanks, Tim and Nathaniel, for expressing some of my concerns more clearly than I was apparently able to do.

>41 nathanielcampbell:

I know what you think. I know what I think. Now let's hear what Theoria and SBL think--no discounts for whites getting hotdogs, no discounts for gay people getting married.

1. Just because you recognize a principle doesn't mean you can't see differences in the scale of the application of the principle. If I'm not mistaken, John was elbows-deep in the human fall-out from the recent Sudanese war, with its ethnic cleansing, mass killings and rapes. From such a vantage point surely you can see that the legal right to compel a wedding photographer to take pictures of you against her conscience is hardly rocking his world.


Rather funny to see this, as John recently posted a link to an article arguing that things such as being "forced" to take pictures of people against your conscience rates as like a 2 out of 10 on the persecution scale.

40> I understand the desire to find legal cover for discriminatory actions in the 1st Amendment, i.e., transforming the refusal of service into speech. Fortunately, at the federal level there is a 14th Amendment and in NM a human rights statute (which "prohibits a public accommodation from refusing to offer its services to a person based on that person’s sexual orientation.”) The "expressive content" of photography is irrelevant.

You'll have to make a case, based on US jurisprudence, that an "action" (refusal of service) is "speech" if the 1st Amendment default is to carry the day.

Do you agree the photographer could have decided only to take negative pictures—drunk partygoers, people at unflattering angles, people who dance poorly, etc.?

John was elbows-deep in the human fall-out from the recent Sudanese war, with its ethnic cleansing, mass killings and rapes. From such a vantage point surely you can see that the legal right to compel a wedding photographer to take pictures of you against her conscience is hardly rocking his world.

Nobody expects this to "rock John's world", but it would be nice--possibly expected, from a professional do-gooder and religiously compassionate person, to understand that the world and its problems are multifarious and complex. Not only does he not do that, he dismisses the idea that there IS a problem.

The world is always on fire; wars, murders, rapes, torture going on every second of every day. Unfortunately, this dismal fact does absolutely nothing to make every other problem disappear.

#46

Do you agree the photographer could have decided only to take negative pictures—drunk partygoers, people at unflattering angles, people who dance poorly, etc.?

Do you agree that the photographer could have denied you this service because you're a Catholic?

>4 BruceCoulson: Did I? You might have to remind me about that one, Jesse. Old age (and currently lots of antibiotics) are creeping up on my memory.

Yes, you did. If I recall correctly, it was some variant of this piece.

>47 LolaWalser:

Yes. If someone were vehemently opposed to the Catholic church, I think they should be allowed to refuse to perform expressive acts on my behalf--to write poems for the Pope, or take pictures of a Catholic wedding. There are people out there who refuse to set foot in a Catholic church on conscience grounds. I respect that. It seems obvious to me that a good percentage of Americans in 1789 would have refused to set foot in a Catholic church on conscience grounds, and equally obvious that the "free exercise of religion" is about that sort of thing. So long as they are not acting as a government agent—in which case establishment comes into play—no one should be required to attend a religious service or enter a religious space.

One might, incidentally, separate the person from the event. That is, we might agree that one may not refuse to take a photograph because of who asked, but only because of what one is being asked to do. That is, you can't refuse to photograph a power line because the person asking is Catholic or gay. But I would certainly consider it within the rights of someone to refuse to photograph a Catholic wedding, or a same-sex one.

>39 timspalding: Can we therefore agree that it is illegal for this photographer to offer 41% discounts for same-sex weddings? SBL?

I think that studio's intentions were good, but their actions are highly suspect, precisely because they are invoking a kind of discrimination. Businesses give discounts to customers all the time for any number of reasons--the bookstore I used to run would give a discount to local teachers, for example. And no one bitched that this discount wasn't also available to local police officers, or local veterinarians. So context, and intention are important. And whatever else you think about the link to the original article I think the judicial ruling emphasized this when it spoke of compromise in the commercial sector. Dredging up every petty instance of one group of people treating another unfairly isn't going to change the underlying principle--it only underscores the importance that such principles are defending.

If the studio Tim linked to had really wanted to make a political statement then they would have been better off announcing that they were donating 41% of the proceeds of all same sex marriage photo shoots to some cause that supports marriage equality. If they were trying to drum up business from gay couples, then they should have simply offered a "special" -- something temporary with advertised limits, in the same way businesses often advertise specials for first time customers.

But once you turn something into a policy --once you make the statement "I won't serve you because you are...(black, gay, Jewish, Catholic, fill in the blank)," then you are in the realm of operating as a business in the field of commerce, with the laws that govern that venue. And no, you can't discriminate. You can't refuse service to a person based on a reason that the law says is not legal. The best thing you can do as a business to avoid serving people you don't want to serve is to be careful and diligent in your marketing, so that you only attract the kind of people you do want to serve.

But if someone else walks in anyway, you have to suck it up and serve them. And if you relieve your feelings about being forced to treat someone you don't approve of fairly by giving bad service, then you deserve whatever court case you end up in for breach of contract.

>49 Jesse_wiedinmyer: Ah yes, but I think that piece makes my point. What many people in the west would describe as persecution (or discrimination) is actually nothing more than mild discomfort.

Tim, I'll write you a poem. If you go priest--a sonnet cycle! :)

#51

Well said.

#52

What many people in the west would describe as persecution (or discrimination) is actually nothing more than mild discomfort.

We aren't judging levels of discomfort but whether an injustice has been committed.

We aren't judging levels of discomfort but whether an injustice has been committed.

Doesn't the term "injustice" have any sort of lower limit? It's an injustice to steal. But if someone sneaks a peanut at a grocery store, I don't say an "injustice" has been committed.

Doesn't the term "injustice" have any sort of lower limit?

Does being refused equal treatment simply because of who you are fall under your lower bar of "injustice"?

if someone sneaks a peanut at a grocery store, I don't say an "injustice" has been committed

However, a theft has.

Context is important. An action can be a precursor to genocide in one situation; the same action can be the last gasp of a tiny minority of discredited bigots in a different situation. An action can be a threat to life, limb and property in one situation; the same action can be a minor annoyance in a different situation. Injustices occur all the time. Some are worth getting worked up over, others aren't. The Crown Prosecution Service (would that be like your District Attorney in the USA?) makes decisions every day on whether or not it is in the public interest to prosecute. Most sensible people decide which battles are worth fighting, based on the importance of the principle, the prospects of success, and the cost-benefit ratio. Trying to blow every case of discomfort or minor injustice up to the highest level is just not realistic.

We use court cases of single instances of apparently "minor" injustices to establish precedents on larger issues.

>57 southernbooklady: And we also ignore single and indeed multiple incidences of minor injustices on a regular basis because it really isn't worth the time and money of the overstretched and underfunded justice system to have to deal with them all. Just because there is a legal right to something does not automatically make it wise nor worthwhile to pursue it.

> 56. Injustices occur all the time.

Sometimes injustices have to duel it out with each other. This very thread includes some examples. Some apparently consider it unjust to equate the injustice of discriminatory photography with the injustice of racial genocide. Others consider it unjust to rank injustices according to one perceived scale or another.

Who equated this incident with genocide?

Perhaps I was overreading the link in # 49, which quotes Rowan Williams as saying, "Persecution is not being made to feel mildly uncomfortable. 'For goodness sake, grow up,' I want to say."True persecution was "systematic brutality and often murderous hostility that means that every morning you wonder if you and your children are going to live through the day". If so, apologies.

59> Some can't wrap their minds around the fact that in NM the denial of service on the grounds of sexual orientation is a violation of a state statute. In this case, "injustice" is defined in legal terms, which are not trivial, hyperbolic, or hindered by spurious comparisons.

> 62. In other words, it's unjust to trivialize legality with spurious or hyperbolic comparisons -- is that right?

That's a curious interpretation of what I wrote.

The attitudes that have surfaced in this thread shock and scare me more than what the photographer did. She's a homophobe and acted as one. The law suffices to deal with her actions. She'll pay a fine or something and remain a homophobe; she probably won't even have to reconsider having a business open to "the public".

But I cannot understand how intelligent people who probably aren't actually evil to the core can float some of the ideas here.

John: if it ain't as bad as in Africa, who cares, you frivolous ingrates, you.

Tim: I shall defend anyone's right to discriminate against anyone else if their morality/religion/heart tells them to!

jburlinson--I'm not sure what the story is here, but considering the genocide quip, I'd say some sort of strawman too.

It's not a very interesting story in itself. I'd go so far as to call it boring, as news stories go.

But what do you know. Even boring stories can throw an interesting light on people, although, as happens often around here, I end up wishing I hadn't opened a thread.

> 65. people who probably aren't actually evil to the core

Thanks for the vote of confidence.

>61 jburlinson: That's precisely the quote from Rowan Williams which attracted me to that article.

>62 theoria: So any discussion on LT ultimately boils down to US law or constitution? We're not supposed to look at the broader issues? And yet it was southernbooklady who suggested to me a few posts back that I should not remain so focused on this particular case and its state statute. I probably agree with southernbooklady on 90% or more of cases of discrimination. I happen not to agree on this one.

If the couple were a Klan couple, and wore white sheets and hoods for the wedding, and if the service was designed to show the superiority of the white race, and the photographer knew that they were celebrating racism, and did not take the gig, would that be discrimination? Or should she be forced to photograph a wedding where she had a basic conflict with the morals of the people who were getting married?

(For the record I believe same sex marriage is, for people who chose it, a very moral option.)

I know there IS a moral difference between two members of the KKK and two women who want to get married, but that is not the issue. Or is it? Is the photographer not allowed to have moral qualms about something that goes against the way she practices her faith.

Which, by the way, is the key sticking point for me in the decision. The assumption is that religion is only something that happens in your head. It is ok to believe, but not ok to practice your religion.

>67 John5918: So any discussion on LT ultimately boils down to US law or constitution? We're not supposed to look at the broader issues?

I think if you had posted a link of a similar situation in Uganda we would be discussing it in a Ugandan context. But this link was about an interpretation of a particular US law as it relates to the US constitution. So I'm not sure I understand your objection.

>68 Arctic-Stranger: Klan couple, and wore white sheets and hoods for the wedding, and if the service was designed to show the superiority of the white race, and the photographer knew that they were celebrating racism, and did not take the gig, would that be discrimination?

I think your question would work better if you substituted the Nazi Party for the KKK. The KKK is just a club. But political affiliations, like religious affiliations, are protected in this country. If she refused Democrats, or Tea Partiers, she'd be in trouble. But if the Nazis want to march in a parade, then they have to be allowed to do so. If they want to get married, then you can't deny them service.

And an even better question would be what happens when the Nazi couple seeks out a Jewish wedding photographer. In such a case a judge might well look at the context of the situation, decide the Nazi couple's intentions were not genuine but hostile, and rule in favor of the photographer who declined their business.

The assumption is that religion is only something that happens in your head. It is ok to believe, but not ok to practice your religion.

Well I could turn that around. Why is it we must allow you to practice your religion when it actually hurts someone? (I hope John will hold off rolling his eyes here at the notion that denial of wedding photographs is really "hurting" people. Because trust me, discrimination, even small examples, hurts. And when you have faced a lifetime of contending with it, it really hurts.) I'm not going to trot out an example of a religious nutcase for every outrageous secular scenario you can dream up. The underlying issues don't change.

This is where I find myself frustrated with the religious-leaning posters in this discussion. Because at no time has anyone said "you are not free to practice your religion." What they have said is you can't practice it in a way that impedes the civil rights of others. So what you really seem to be saying back is "Freedom to practice my religion supersedes your civil rights."

And I ask again, is that really where you want to plant your flag when you are determining the extent and the limits of the freedom of religion? Several of you have already acknowledged that religious life in this country is on the decline (at least among younger people) precisely because churches are perceived as homophobic, bigoted, "mean," or at least out of step with modern cultural values--and here I mean the good values, the values of inclusion and tolerance and generosity that a highly diversified society tends to foster if it is working well. So you may want to consider that when you are trying to determine just how badly anti-discrimination laws interfere with your freedom to practice your religion. They may in fact be doing you a favor.

ETA: Actually, maybe the KKK is a bonafide political party. Is it? In which case your scenario might work.

Could a photographer be held liable if they did not want to take photographs at a nudist's wedding?

It actually seems to me that this case is more about hurt feelings of not getting the "photographer of choice" than anything else. Courts are not designed to handle hurt feelings.

I think dismissing discrimination as "hurt feelings" is a good way to perpetuate repression.

Could a photographer be held liable if they did not want to take photographs at a nudist's wedding?

Another spirited effort at trivialization.

"New Mexico Statutes - Section 28-1-7 — Unlawful discriminatory practice.

F. any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation" http://law.justia.com/codes/new-mexico/2006/nmrc/jd_28-1-7-bcb3.html

>69 southernbooklady: This is where I find myself frustrated with the religious-leaning posters in this discussion. Because at no time has anyone said "you are not free to practice your religion." What they have said is you can't practice it in a way that impedes the civil rights of others. So what you really seem to be saying back is "Freedom to practice my religion supersedes your civil rights."

Because I don't think this has anything to do with freedom of religion. It probably has far to more to do with US over-litigiousness. I'm certainly not saying that religion should impede the human rights of others, but I consider access to a wedding photographer to be a luxury rather than a right.

I'm still picturing the conversation between a US visitor to Syria and a local:

"You can't believe how bad things are in the USA. I couldn't even get my first choice of wedding photographer!"

"You mean, you weren't allowed to get married?"

"No, we got married fine, but we couldn't get the photographer we wanted."

"You mean you have no photos of your wedding?"

"No, we got beautiful photos from another photographer. But at least we got a payout of six and a half thousand dollars for discrimination!"

"You mean you got a payout for nothing?"

"Yes, and we're thinking of suing them for the emotional suffering, which should be worth a couple of million too."

"Put your gas mask back on, it looks as if another chemical attack is starting."

Because trust me, discrimination, even small examples, hurts

That, at least, is an experience you and I share and can agree on, presumably both of us for much of our adult lives. But whether one needs to litigate for every small hurt or whether sometimes turning the other cheek is a better option all round is obviously where we disagree.

Because I don't think this has anything to do with freedom of religion.

Tell that to the photographer who refused services on those grounds in the first place.

I agree that there are a hundred thousands ways this situation could have been resolved without going to court. The photographer could have claimed another engagement, invented a family emergency, cited technical difficulties. She could have just said, sorry, I can't do it, without giving any justification at all. But instead she said something along the lines of, "sorry, I don't do gay weddings, it's against my religion." And the moment she said that, she broke the law.

"Yes, and we're thinking of suing them for the emotional suffering, which should be worth a couple of million too."

I think your invented exchange is mean-spirited, John, and rather unlike you. The sum total of the "damages" in this case were court costs. About $6,000. So while you may not think there was a principle involved here. The injured parties and the state attorney and the judge all seemed to think there was.

>75 southernbooklady: I think what I'm trying to point out is how ridiculous this looks to someone from outside the privileged boundaries of the USA. I do find it offensive, to be honest, that concepts connected with serious human rights issues are being bandied around for such a trivial case. I find myself with Rowan Williams wanting to say to both the photographer and the wedding party, "Grow up, for God's sake". Yes, I think they are both equally ridiculous and in their own way bigoted, and both are making a big fuss about something which at worse would be a minor discomfort for either of them.

If someone were denied access to something significant, such as employment, financial benefits, housing, marriage, anything that actually caused them some practical cost, or if they were subject to hate speech, threats or abuse which could lead to violence or the fear of violence, I would be 100% in agreement with you (probably more than 100% because most of you in the USA don't seem to believe in legislating against hate speech). But the actual example given trivialises something far more serious, and if US law condones it then (to quote someone much more famous than me) the law is an ass.

Why would a Jewish person get a pass on doing a Nazi or Klan wedding?

>77 Arctic-Stranger: in New Mexico? Apparently because political affiliation is not listed among the things one can't discriminate against:

(once again, from above):

F. any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation" http://law.justia.com/codes/new-mexico/2006/nmrc/jd_28-1-7-bcb3.html

Wow, what a thread!

Wedding photography (beside the point as far as I can see, and knowing Turley I am sure he will get to that point) considered (new fave term 'expressive') on the level of poetry (Hallmark?).

Degrees of discrimination. What? Gay people compared to peanuts, effectively?

Alaskans refusing to marry quiet men?

So a few weeks ago, I posted on another thread about a prominent gay couple in Great Britain who had decided to sue the Church of England to force them to perform gay marriages. I asked whether this was a harbinger of things to come, of a hostility towards religious institutions that refuse gay marriage that could spill over into the courts. I wanted to know: will the push for gay marriage become a threat to religious freedom?

Many commenters--including some prominent in this thread--essentially said, "Don't worry about it. This is an isolated incident. It's not big deal."

Yet, in this thread, those of us who wonder why this small incident in New Mexico is being blown so wildly out of proportion are accused of shocking, frightening indifference to the erosion of civil liberties (see Lola in 65).

So why is it that when a religious person feels that their civil liberties are threatened, they're supposed to sit down, shut up, and compromise with whatever floats the poster's boat; but when others, e.g. the gay couple under question here, feel that their civil liberties are threatened, they are to stand up, raise the roof-tops, and not compromise an inch, using every legal means necessary to cow those with religious objections into quivering submission?

> 80. So why is it that when a religious person feels that their civil liberties are threatened, they're supposed to sit down, shut up, and compromise with whatever floats the poster's boat;

Considering your question from the Christian perspective, there might be a couple of answers. For one, Jesus once said: "Ye cannot serve God and mammon." So anyone who decides to serve mammon, like a commercial photographer, needs to shed any illusion that they can also "serve God" while doing so. The two worlds are incompatible.

For another thing, Jesus also said: "Give to everyone who asks of you, and whoever takes away what is yours, do not demand it back." So it would seem to me that if a person is good at taking pictures, they should take pictures of anyone who asks them to.

>80 nathanielcampbell: So why is it that when a religious person feels that their civil liberties are threatened, they're supposed to sit down, shut up, and compromise with whatever floats the poster's boat; but when others, e.g. the gay couple under question here, feel that their civil liberties are threatened, they are to stand up, raise the roof-tops, and not compromise an inch, using every legal means necessary to cow those with religious objections into quivering submission?

I think it is indicative of the strength of your position that you are reduced to hyperbolic language that isn't actually reflected in the original article in order to make your point.

Nor is it consistent with his own pretenses of having an inconclusive, measured view of the issue. I think that a 'religious person' who has yet to discredit him/her self has better luck when speaking up.

> 83. I think that a 'religious person' who has yet to discredit him/her self has better luck when speaking up.

Why is that the case only with "religious" persons?

I am referring specifically to post #80;

'So why is it that when a religious person feels that their civil liberties are threatened, they're supposed to sit down, shut up, and compromise with whatever floats the poster's boat...'

I find the cliche particularly offensive.

85> The phrase "quivering submission" was a bit BDSM though. Please reappraise.

I get a bit dizzy appraising at all...it's all so...personal...

>81 jburlinson: If you equate having a job with serving mammon does that mean only people who don't work are capable of serving God?

80

"So why is it that when a religious person feels that their civil liberties are threatened, they're supposed to sit down, shut up, and compromise with whatever floats the poster's boat; but when others, e.g. the gay couple under question here, feel that their civil liberties are threatened, they are to stand up, raise the roof-tops, and not compromise an inch, using every legal means necessary to cow those with religious objections into quivering submission?"

I would hazard a guess that it's because - since the Enlightenment at least - religion has more often NOT sat in the same boat as civil liberties, than when it has. A few notable exceptions come to mind, like Martin Luther King, but even there, the liberals were more persuaded by the humanity and rightness of his cause, than by MLK's Christianity.

I'm not sure where religious people could claim their civil liberties were threatened, unless by having one or more of their religious beliefs "flouted" by the State insisting on the civil liberties of others?

>89 Tid: but even there, the liberals were more persuaded by the humanity and rightness of his cause, than by MLK's Christianity

I think the point, from the religious person's perspective, would be that Martin Luther King's Christianity is what motivated him to the actions he took. His sense of "rightness" was a Christian one, not necessarily a "liberal" one.

I'm not actually sure that religion and civil liberties are parting company in the United States--I've had a good demonstration of the opposite here in North Carolina, where opposition to the current GOP-led state legislature has a strong religious component. Despite the fact that among the laws being pushed through are anti-Sharia laws and laws that shut down women's health clinics allowed to perform abortions, the grass-roots churches in the state have been vocal in opposition to the current state administration--mostly on civil liberties grounds.

But I do think the natural conservatism that is often associated with religion is not doing them any favors on this score, because it changes the tenor of the way a Christian lives in the world from one of inclusion--showing by example what it is to be a Christian--to one of exclusion--demanding accommodation for what it means to be a Christian.

And what bugs me about this on a philosophical level, you might say, is that Christians like this wedding photographer have chosen a very strange issue to rally around.

I've always understood that a person's religion was something serious, a deeply held sense of identity that is between their conscience and god and that others ultimately had no "say" in directing. So I get why it makes sense to allow religious expression -- to allow Muslim women to wear their head scarves or Christians to take time to go to church or accommodate people's days of fast or their directives not to say the pledge of allegiance. It's all a form of worship, I guess, to god, however that is understood.

But what I see here, then, is an affirmation that this deep personal identity of this photographer's is built on a foundation of exclusion, of judgment, of rejection (I'm casting around for alternatives to the "b" word). That's the principle by which she wants her kind of Christianity understood by the world.

And I find that troubling, not because she has beliefs that I disagree with, but because the fact that those beliefs are "religious," however misguided, they are sacrosanct even up to the point where they infringe on another's civil rights.

And I can only conclude from this conversation that indeed for many people that is true--that religious freedom is not one of many freedoms we negotiate among ourselves in this country when they come into conflict (there was a previous thread where we were discussing a person's right to look at porn versus another's right not to look at it), religious freedom is the paramount freedom, the one that trumps all other freedoms.

And on that score I find myself in opposition to the religious people on this topic. Because this was not a case of a church being forced by the state of New Mexico to perform a same sex marriage against it's own doctrine. It was a case of of a business person with regrettable religious scruples being required to conform to anti-discrimination laws. Her freedom to practice her religion has not been denied. She's just been told to practice it in a way that affords due respect to others in the community she shares with them.

90

"I think the point, from the religious person's perspective, would be that Martin Luther King's Christianity is what motivated him to the actions he took. His sense of "rightness" was a Christian one, not necessarily a "liberal" one."

I think there's much in that. But I was really speaking of the thousands who rallied to his cause and marched - yes, there would have been many religious people there, but also many who weren't. And "that speech" is remembered not for its religious content (which I'm sure was in there ) but for the ringing out through history of "I have a dream!" . I was too young to be aware at the time, but I've since come to view that Civil Rights epoch as one marked by justice, not religion.

> 88. does that mean only people who don't work are capable of serving God?

That's what Jesus seems to mean, isn't it?

"Consider the lilies, how they grow: they neither toil nor spin, yet I tell you, even Solomon in all his glory was not arrayed like one of these."

"And He said to him, “‘You shall love the Lord your God with all your heart, and with all your soul, and with all your mind.’ This is the great and foremost commandment. The second is like it, ‘You shall love your neighbor as yourself.’”

Doesn't leave much room for making money; and it leaves zero room for degrading other people.

Except that Jesus often went fishing with his buddies, which for them was work.

So.

According to New Mexico, photographers must do any wedding that comes their way. (Or at least if they don't do one, it cannot be because of the people getting married. I guess if they planned a vacation for that time, then they could opt out legally.)

I am more concerned about freedom of expression for photographers than I am about the limits to religions, but that is me. (Can the photographer refuse to do a wedding because the groom is just plain butt-ugly? Or because the bride is Bridezilla, and they do not want to be around her for that much time?)

I do have some concerns with religions being able to practice, not just mouth their beliefs, but I do agree that a) if they practice goes against the law, then they should not expect special measures, for instance the churches in the Sanctuary movement in the Southwest--harboring illegal immigrants is a criminal act, and they should not be above the law, and b) The practice cannot hurt another person intentionally and directly.

I appreciate SBL's concerns over the B word. What is it about this issue that brings out the worst self-righteous behavior in both sides? (You exempted, SBL)

John seems to think this is a tempest in a tea cup, that the treatment of gays and lesbians in parts of Africa is pretty horrid, and he might want to prepare, if any sort of gay rights movement develops there. Then it will be a HUGE issue, and potentially violent. There is already tension because of western churches that ordain or accept gays and lesbians.

Well we will see how this all works out in the end.

What I find odd is that those who would otherwise abide by the admonition to "love your neighbor as yourself" are willing to abandon it when it comes to people who happen to have same-sex desire.

I too find that odd.

#16: According to Becker (Economics of Discrimination), economic competition will tend to drive discrimination out of markets.

In his ideal theoretical system, maybe. In reality, if your core customers want you to discriminate against some group of people, it can be an economic good to do so. Most businesses will evict someone who is annoying their customers, for good reason, and if your customers are annoyed by black or Jewish customers being there (and the latter don't make up much of your commerce) it can easily be economically optimal to deny them access.

And in any real system, the economic inefficiency of discriminating against gays in this way is likely to be dwarfed by other economic inefficiencies, provided that her non-gay customers don't know or don't care.

#18: I also find it a trifle troubling that being able to have the wedding photographer of your choice is now apparently viewed as a human right to be protected by the constitution.

Do you find it troubling that being able to sleep in a hotel of your choice is now viewed as a human right? Does it change anything to discover that in practice the right of hotels to discriminate added up to having no hotels for black people in some areas?

1. Can I get someone on the screw-the-photographer sides to address the free speech issue directly?

It seems to me that photography is expressive; I'd certainly oppose a government attempt to suppress wedding photographers and I think in other contexts—contexts without the gays/bigots divide—everyone here would agree that wedding photography is worthy of protection as free speech.

But let's leave that off and go to the best example of expressive work—writing prose. If the woman had advertised herself as a writer of wedding vows, speeches and poems, wouldn't it always be a violation of her free speech rights for the government to force her to write something for a ceremony she opposed?

2. Can I get someone to address the person/event divide? It seems obvious to me that it should be illegal to refuse a gay person a burger or a taxi ride. Ditto a Catholic. But can we not see a difference between that and being the wedding photographer at a same-sex or Catholic wedding--that is, lending your expressive skills to an event with which you disagree? As I said, I know a number of people who'd simply refuse to enter a Catholic worship space. Shouldn't they be protected from promoting a wedding in one?

I might see a free speech issue, but I also see it as part of your bubble. You can force a taxi driver to go to the drive-thru wedding chapel, you can force the limo driver to wait in front of the church, you can demand the restaurant owner accept your wedding party, and despite the heart and soul they poured into their vehicles and their restaurant, they can't refuse you. (And limo drivers, and taxi drivers and waiters to a smaller extent, do put their expressive skills to work in keeping their customers happy.) But should Emily Dickinson hang out her shingle, suddenly she should have no obligation to obey the civil rights laws?

A limo driver who drives them to and from the church is part of the event. Places that rent for events have to rent to all comers. A casino that rents and caters weddings can't discriminate, even though they're part of the event. A hotel may be a key part of a honeymoon.

If you refuse to enter a Catholic worship space, you have some careers barred to you: building inspector, firefighter, paramedic, wedding photographer, glazier, and probably others. I don't see why wedding photographer should be drawn out as an exception.

Has anyone addressed the issue of WHY a same-sex wedding couple would even want to hire a photographer who had an objection to their sexuality? Put it another way - would a couple at a Jewish wedding hire a photographer with Nazi sympathies? If I was that New Mexico couple, I would not want to have my wedding sullied by a surly and reluctant photographer who wouldn't give their best efforts to my special day.

I suspect they went in to hire her, were turned away, and sued. I suspect they were married long before the court case came to resolution, so her shooting at their wedding was never a real issue after they found out she objected.

>97 timspalding: Can I get someone on the screw-the-photographer sides to address the free speech issue directly?

That sounds a little defensive. It also sounds like you are exploring whether freedom of expression can be used as a kind of "loophole" to justify something that "freedom of religion" was insufficient to justify on its own.

I think the free speech aspect has been addressed in a couple of places. Here's what the judge in the case said about it:

“world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different.”

and again

“Elane Photography does not routinely publish for or display its wedding photographs to the public. Instead, it creates an album for each customer and posts the photographs on a password-protected website for the customers and their friends and family to view. Whatever message Elane Photography’s photographs may express, they express that message only to the clients and their loved ones, not to the public.”

and here is what one commentator said about it:

This is actually an easier decision for me. The statutory law prohibits discrimination based on gender / sexual orientation in commerce. The married couple engaged in commerce in exchanging money for the photography services pursuant to a legally binding contract. The legislative intent is to protect the public generally from having to suffer discrimination when engaging in commerce.

Because of this, the photography company was acting as an agent of the couple and the photography images and quality were the direction of the couple, and subject to the contract, the photography was at their direction primarily. If the photography company had been acting in a freelance capacity where there was no contract in force and the photographer had say been photographing the wedding in a public place in the hope of selling the pictures to someone else (such as a paparazzo) it would have been the photographer’s first amendment right to take or not to take the photos as they saw fit. But it was not the case in this example.

and here is something I said upthread:

I agree that photography is "expressive." But I also think that when art meets commerce, compromises have to be made. In fact, I'm positive that photographer has taken photographs in the past that were not what she personally preferred, but what her client wanted. She does weddings, after all--nothing brings out the control freak in a person like having to plan a wedding. So I question how much "art" we can claim here just because there is a camera involved.

Shall we excuse the house painter who refuses to to paint a man's house on the grounds he's a Muslim just because the painter uses a brush?

Or, to bring this home a little bit. Suppose Timspalding were virulently anti-gay (he's not, obviously). But he's got the best book cataloging site on the internet and he accepts money from people who want to use it. Now he could write blog post after blog post of homophobic invective if he wanted. Fill the attached forums with vitriol against the "gay agenda" and respond to any remotely positive gay post with dire warnings about hellfire.

But can he summarily close the accounts of any one on his site he perceives as gay? Is that allowed?

Tim's position seems to be that a person can choose to do business with, or not do business with, anyone they like. A person's business is, in a sense, their "freedom of expression" in action. And in this largely true in this country. You generally don't have to give a reason for why you would refuse a commission. But there are specific exceptions--created to address specific social attitudes that actually impinge on the rights of some citizens. And if Tim lived in New Mexico, then sexual orientation would be one of those exceptions. It's an exception because being gay is something you can't help. It's deeply integral to you, as deeply integral as your religion. Perhaps more so.

The truth is, when we talk about people providing a service, and denying others that service on whatever grounds--claiming free speech, or freedom of religion--there is not a one-size-fits-all solution. The service itself probably falls somewhere on a long line of options from the very accessible to the very elite. The hairdresser at the $8 a cut walk-in salon isn't selling art, she/he is selling a decent haircut, cheap. The guy with the salon on 5th Avenue you have to book a year in advance is demonstrably more choosy about who he'll have time for.

And how much the hairdresser in the $8 salon is really exercising his/her freedom of speech and artistic sensibilities is a matter of judgment that will only come into play if they start refusing to serve people for suspect reasons.

I really think the problem of the photographer (who I do not want to screw, by the way) was simply that she found herself in a society that has changed in a way that was bound to affect her business, but she didn't give due consideration to what that would mean, or what strategies she should use to avoid a conflict between her personal beliefs and what society now accepts. It's not like marriage equality has been some under the radar issue in this country. She got blindsided, and duly paid the price. Presumably from now on she'll make it clear in her marketing that she's a Christian photographer who does faith-based weddings.

Can an atheist be forced to photograph a Catholic wedding if they feel the Catholic church is a corrupt institution and never want to set foot inside of one?

Putting aside the fact that wedding photographers can be expected to enter churches. Let's say this person wants to provide a secular alternative for secular weddings. Can they hang a shingle saying, "No Religious Weddings"?

In New Mexico, anyway, that would be discriminating based on religion. So I'd say no.

Can a lounge lizard be forced to eat walnuts with a fork?

>94 theoria: Confusion, or conflation rather, of commandments to get thy neighbours spouse...(unless gay, right, so even that doesn't explain it)

Hey Arctic, so you're okay with gay folk, but what's this about not allowing The Quiet Man to marry?

As I said in #98, some professions don't have the options to refuse to enter Catholic churches. Can a paramedic or firefighter refuse to enter a Catholic church? Can a building inspector? Can a taxi driver refuse to enter a church parking lot or church graveyard? Can a pizza place refuse to deliver to a church? Can a pizza delivery guy?

There is a qualitative difference between a pizza delivery guy dropping off some pies, and a photographer who is putting an artistic bent onto something that will be the couples main record of their marriage.

As to the quiet man, there is a longer story behind all that. He did not speak and then when the day of the wedding came, he did not have the marriage license. It turns out he had not applied for it, but I did not find that out until later. I actually did the service because he told me that he had left it at home. He came in a few days later for me to sign it, but had only just gotten it. the issue date was going to be AFTER the wedding, and I either would have to lie about when I did the wedding, or do another ceremony, or tell them they needed to rethink their marriage, and it was not too late because at this point they were NOT married. (Maybe in the eyes of God, but I am not even sure about that.)

I refused to sign it and I refused to remarry them.

I realized early on in my pastoral career that I could do a wedding a weekend, especially in Alaska, where we had the perfect wedding chapel for our sanctuary. I decided that I would require two things for people to get married. First, they had to do at least three sessions of pre-marital "counseling" with me. (This was, for some couples, more a bar they had to jump over than anything. If they were not willing to put three to six hours of preparation into their marriage (and the last session was totally about planning the actually wedding), then I was not willing to put my time into their marriage. About half the couples I worked with ended up talking about some significant issue during the sessions, and the other half just dutifully came. One couple came repeatedly, and finally one week she came alone and informed me that they had called off the wedding. We had talked about his jealous streak, and she did not realize how deep it ran.

The second thing I required was that if they wanted a church wedding they had to at least be able to name a church in town that they were attending. (It's not like I ever checked up on them. Most of the ones who did not attend church could only name my church.) At first I thought that marrying people was a good way to get them to come to church, but the success rate for that was zero. They got married and disappeared.

They did not have to go to my church, and I did do several weddings for people who attended other churches (or in some cases were of different faiths, and neither church or synagogue would marry them).

The church is many things, but it not there to be a backdrop to a wedding.

Once I gave those conditions, I ended up enjoying the weddings that I did do.

I once had a mother call me to ask if I would marry her daughter and future son in law. She was Baha'i and the daughter and son in law were Baha'i, but the prospective groom's mother was a Presbyterian. To appease her, they agreed to a Presbyterian wedding.

I asked the woman if she wanted her daughter to get married in my church, and she said no. I asked if either the bride or groom wanted to get married in my church, and again she said no. I told her that if she wanted, she could tell the groom's mother that I refused to do it, and would be the bad guy, so they could have the wedding they wanted.

#107: There is a qualitative difference between a pizza delivery guy dropping off some pies, and a photographer who is putting an artistic bent onto something that will be the couples main record of their marriage.

The nonexistence of a wedding photographer willing to shoot the wedding is rarely going to stop the wedding. It is way more frequent in my experience that the pizza is the real reason for the youth group function in the minds of many of the participants. If you know that the presence of pizza at this youth group gathering is luring teens there that wouldn't otherwise be there, do you have the right to not deliver pizza there?

If you normally allow people to take pictures in your restaurant, your highly artistically decorated restaurant, can you refuse to let the Bar Mitzvah party that retired to your restaurant take pictures? Even if your decorations will put an artistic bent onto something that will part of the child's main record of his Bar Mitzvah?

The whole free speech thing just feels like special pleading. The civil rights laws limit businesses and the people who work for them in how they can discriminate, and that's likely to feel very personal in many cases, ranging from a cabbie who has to let people he doesn't like in his cab* (his own personal property, his own office); to a restaurant owner who set up his restaurant just the way he wants ("No soup for you!") and yet can't reject certain people; to a masseuse who'd rather work on gorillas instead of black people and yet can't reject black people. (And you can't tell me there's not a qualitative difference between standing back and shooting a few photos and actually physically giving someone a massage.)

The Civil Rights laws should provoke some thought. They massively restrict personal liberty in the name of a great social cause. At some point, I think a lot of the arguments about free speech come down to "I'm not comfortable with the power of the Civil Rights laws but it's not culturally acceptable to even think that, so I'll interpret my discomfort in a different way". I do not believe a wedding photographer should have any rights here that a cabbie or restaurant owner or masseuse doesn't have.

* I don't think it's been a matter of civil rights law, but some places have had a problem where their cabbie population was largely Muslim and many of them wouldn't carry people with alcohol, and I believe a number of them have been fired or had their cabbie license revoked for that.

Quiet people are obviously hiding something.

#107: The church is many things, but it not there to be a backdrop to a wedding.

That's your choice, and I'm not arguing that.

But I find it interesting and divisionary. Instead of letting people get their wedding solemnized before God, instead of letting there exist people who are Christian or just God-believers who demonstrate their belief at weddings and funerals, you tell them there's no place for them, that they should get married in a completely secular way.

There is a qualitative difference between a pizza delivery guy dropping off some pies, and a photographer who is putting an artistic bent onto something that will be the couples main record of their marriage.

This is probably where I have the most problems with this discussion. Which could probably lead to a whole 'nother discussion on the nature of art, etc... But documenting a wedding? It's not about the fucking photographer. It's about the wedding.

I mean, as someone who used to wait tables in some pretty high-end restaurants, as much as I might think that anyone that orders a steak well-done is a freaking idiot, and might even pass along the chef's suggestion for cooking temperature, my job is ultimately to get the customer what they want.

Tim's position seems to be that a person can choose to do business with, or not do business with, anyone they like.

Here's three cascading positions:

1. I think there is a basic, inalienable right to refuse to attend a religious ceremony, and especially to participate in or augment one in some way. I believe the Constitution enshrines this right of conscience.

So much I consider obvious. Better, members of this very thread have expressed exactly the same sentiment in other threads--ones relating to students offering a prayer at graduation ceremonies. In such cases, they said, the government must ensure that no one be forced to listen to prayers--even if offered by a student leader on their own initiative. But here, the government must force people to attend and to some extent participate in more than just prayers, but in a full worship service. I find this a strange double standard, and can explain it only in view of the actors involved, not the principles.

2. I think there is a basic right, arising from the right of free speech and of conscience, to not lend your expressive talents to express something you disagree with. The Baptist does not need to write poems for the Pope; the traditionalist Catholic does not need to do the audiobook for Heather has Two Mommies. Wedding photography seems like this to me.

We can, of course, argue what's expresive and what's not. I'm glad the court considered the matter from that point of view--even if few others here consider such an examination is needed. Taken from that angle, I see where the court is coming from. I would hope that, mutatis mutandis, it would uphold the right of more deeply and legitimately expressive activity to avoid state compulsion.

Let me pause and add that 1-2 should be drawn in such a way that they only apply to the activity, not the person. That is, rights of conscience and of expression are fundamentally about content, not people. So, while I would support the right of a Baptist to refuse to attend a Catholic service, I would not support the right of a Baptist who was willing to attend a Catholic service to change their mind when they find out the person actually paying for their services is Catholic.

3. My third opinion is decidedly outside the current popular view, and outside (current) American law, and I flag it as such. I do in fact think that anti-discrimination laws are coercive. I understand why they were originally adopted, and I like the effect of these laws--as, incidentally, I like the effect of forcing nasty, narrow-minded Christian photographers to shoot a same-sex marriage. Net-net, I think they're good for society. Heck, I think it would be good for society if every anti-gay person was required to have regular social contact with a gay person. Even so, I think such laws violate our natural rights of contract and association.

However, I don't think you need debate me on number three. Few of your you would agree on the political theory involved here.

But should Emily Dickinson hang out her shingle, suddenly she should have no obligation to obey the civil rights laws?

Yes, she should not be required to write things she abhors in advocacy of religions she abhors because she is paid for her writing.

If you refuse to enter a Catholic worship space, you have some careers barred to you: building inspector, firefighter, paramedic, wedding photographer, glazier, and probably others. I don't see why wedding photographer should be drawn out as an exception.

I don't think it's a coincidence that three of the four (building inspector, firefighter, paramedic) are government jobs, and the other aren't barred, there'd just be a reduction income if you lived in a small town. (A wedding photographer who didn't do Catholic weddings would be just fine in most of the country.) As for the government jobs, that's different, because it runs up against establishment issues. The government cannot treat religions differently in any respect. Ordinary people are not so obligated.

Deep down, we run into a basic question of freedom of (and from) religion. It's a basic feature of religious liberty that nobody should be forced by the government to attend a worship service.

Whatever message Elane Photography’s photographs may express, they express that message only to the clients and their loved ones, not to the public

This is the sort of argument I like to see. I notice, of course, that it's the court that said it, not anyone else on this thread, for whom the free speech considerations are simply moot.

Anyway, if the photographer's right to free expression and conscience is to be overturned, it has to be argued. "Photography isn't speech" is a far more "unjust" result than the parties in question suffered here.

#113: 1. I think there is a basic, inalienable right to refuse to attend a religious ceremony, and especially to participate in or augment one in some way. I believe the Constitution enshrines this right of conscience. ... But here, the government must force people to attend and to some extent participate in more than just prayers, but in a full worship service. I find this a strange double standard, and can explain it only in view of the actors involved, not the principles.

There are several people on your side that believe the exact same thing, who believe a pizza place should be obliged to deliver food that makes possible a religious youth meeting. Nor has anyone on your side argued that a place that rents space has the right to not rent space for a wedding it doesn't approve of.

to not lend your expressive talents to express something you disagree with. The Baptist does not need to write poems for the Pope; the traditionalist Catholic does not need to do the audiobook for Heather has Two Mommies.

So someone who reads what's on the paper in front of them is an expressive work, while just about every customer service job ever made, which all require extemporaneous speech and physical acting in person, are not expressive works? This is what I was complaining about with Emily Dickinson, that fancy art people get to take precedence over other people, that a limo driver doesn't get feel in personal connection to their job, that driving a couple to the church is not expressive at all.

I don't think it's a coincidence that three of the four (building inspector, firefighter, paramedic) are government jobs,

Does it matter if they aren't? I believe a number of paramedics are contract services; would it be okay if one of them contracted not to handle Catholic (or Baptist, since they're smaller) churches (not a problem, since there are none in their area) and then turned around when they discovered that they were being sent to an new church in the area?

I think building inspector falls under #3, as an independent building inspector still couldn't legally turn down an inspection of a Catholic church.

I notice, of course, that it's the court that said it, not anyone else on this thread, for whom the free speech considerations are simply moot.

I notice that the free speech considerations of everyone outside your bubble are moot. The expressive talents of cab drivers must be at the service of the customers at all times, but not so photographers. I'll note that, yes, you're getting less sympathy from someone who will never have free speech at work in his life; you're arguing that enough money can buy you the right to discriminate against customers.

you're arguing that enough money can buy you the right to discriminate against customers.

Nonsense. My friend is a wedding photographer. It's not a high-paying job—it supplements her being an elementary school teacher. I bet the photographer in question here wasn't rich either. Sorry, but I do think there's a difference between photography and taxi-cab driving. One is expressive; the other is not. Driving a taxi may take a lot of love, but governments regularly restrict the profession to people with a license or medallion. The government could never restrict camera use to those with a license.

I believe a number of paramedics are contract services … building inspector

Courts have consistently held--and it makes perfect sense--that individuals acting as agents of the state must act as the state must act. Whether a paramedic is employed by the government or just contracted by it, they can't violate the Establishment Clause. This isn't that hard.

that a limo driver doesn't get feel in personal connection to their job

The Constitution distinguishes between the freedom of the printing press and the dry-cleaning press. The government may make one illegal but not the other. It has nothing to do with what level of "personal connection" to the job is involved.

But I find it interesting and divisionary. Instead of letting people get their wedding solemnized before God, instead of letting there exist people who are Christian or just God-believers who demonstrate their belief at weddings and funerals, you tell them there's no place for them, that they should get married in a completely secular way.

If only it were a matter of "letting." But a wedding takes a lot of time and energy.

If someone had some kind of spiritual hankering, or felt for some reason that a church wedding was meaningful, that is one thing. But when I asked couples why they wanted me to marry them, and why they wanted in our sanctuary, the answer was usually. "It's a really beautiful building." Sometimes they added, "and I hear you are a good preacher," but rarely. They wanted to get married in a quaint, log church, which we were.

I even had one couple ask if I would do it, but then said, "Could you leave out all the God talk?" Another asked that I not ask people to bow their heads and pray. (Did he think I was going to pick their pockets when their eyes were closed?)

And then there were the drunk couples, who came to see me while highly intoxicated.

I should add that when someone did get married, we provided a wedding director, pastor, organist, and clean-up crew. We had to provide the wedding director because people did all sorts of strange thing in the sanctuary, like throwing birdseed. (Yes, INSIDE the church!) Or they would move all the hymnals, and we would have to search for them on Sunday morning. Or, in one case, hide the cross and paraments from the altar.

Again, if there was an inkling of spiritual interest, that was fine, but as I said, most people could not even name another church in town, and when asked why they wanted a church wedding, they could do little better than say, "I thought only churches could marry people."

#115: Nonsense. My friend is a wedding photographer. It's not a high-paying job—it supplements her being an elementary school teacher.

So someone with a college degree able and willing to run a business.

One is expressive; the other is not.

And again, why is someone using their voice to say "Heather has two mommies, by Leslea Newman and Diana Souza" more expressive then someone using their voice and body language to say "Welcome to Taco Giant! We'd be happy to host your party of 12! Oh, is this the happy couple?"?

It has nothing to do with what level of "personal connection" to the job is involved.

Are you giving up "I think there is a basic, inalienable right to refuse to attend a religious ceremony, and especially to participate in or augment one in some way" then? A limo driver can forced to participate in a wedding ceremony (and certainly the guy driving the new couple away as everybody waves is an iconic participation) and a pizza place can be force to deliver to a church youth service, even if it's the pizza alone attracting teens?

What is it with you and pizza? We had about 15 to 20 kids every week, and no pizza. I think you need a reality check.

Its the GIRLS that draw them!

#118: All I remember is the pizza; of course I wasn't much into girls at the time.

sounds like your younger spirituality is kind of like that of the people who wanted a church wedding for the pictures.

#120: The most inauthentic I've been spiritually was early high school, where I didn't believe and didn't bother saying anything because I knew I didn't have an option to go.

Surely this issue is more simple in practice than the highly technical and involved constitutional arguments being discussed? The bottom line seems to me, that a wedding photographer may not put a notice in their window saying "We won't do same sex weddings" - that's a legal issue based on laws of discrimination.

However, if the same photographer discovered - and during pre-wedding discussions they naturally would - that the prospective client was a partner in a same sex wedding, that photographer could quite legally, and before any binding contract was signed, declare "Oh, I'm so sorry. A crisis has arisen and I simply won't be available that day. I can recommend X instead - their number is ........". Where's the huge problem?

#122: that photographer could quite legally, and before any binding contract was signed, declare "Oh, I'm so sorry. A crisis has arisen and I simply won't be available that day. I can recommend X instead - their number is ........". Where's the huge problem?

It's not legal for them do that; it's still discrimination based on sexual orientation. It's just that most times people don't know that's what happened, and when they do they can't prove it.

#115 "The government could never restrict camera use to those with a license"

Of course it can and does. If you're a freelance photographer or just a private citizen, then no, no restrictions. But if you're running a business you are restricted. You have to have permits to operate out of a premises, you have tax requirements and all sorts of other restrictions placed on you. One of these is to offer your services to everyone.
End of argument.

Commerical works are not free speach. Whether it's poetry for hire, photos, statues or anything else, if you are running a business offering that as a service, it must be for everybody, jew, nazi, KKK, gay, catholic, athiest and all.

Now if you're not a business, if you're an artist writing/building.sculpting first adn then trying to live off of the proceeds, you can do what you want. There is a grey line between an artist taking comissions and a business providing a service. IMO the wedding photographer is a business. But a similar freelance operation could be different.

#115: Are you claiming that a photo place in Walmart could turn away black customers by simple virtue of being a photo place?

>113 timspalding: This is the sort of argument I like to see. I notice, of course, that it's the court that said it, not anyone else on this thread, for whom the free speech considerations are simply moot.

But it has been said. It's certainly what I was trying to get across when I talked about the gradations of work. Expressive speech "for sale" in the marketplace is entering an arena that requires negotiation and compromise.

The central conflict here seems to be a result of the intentions of the First Amendment--which seek to guarantee and honor what is individual about us, and the intentions of the Civil Rights act, which seek to guarantee and honor the commitment of equality under the law for all citizens. And the root of the fight seems to be a philosophical one--which of those competing ideals has primacy when they come into conflict.

Is there really one answer to that? Or is it always a negotiation, based on who power is being exercised over who, and how much the end result will look like the society we want to have.

Can a devout Muslim ad copy writer be forced to work on a campaign for Jack Daniels?
Can a Christian wedding vow writer be forced to write vows for a Wiccan ceremony?
Can a print shop owner put up explicit posters of women if he has women working there?
Can a speech writer insist that every speech he's hired to write include the words "and I'd like to thank God for my good fortune"?

Do you really see a single answer for all these scenarios?

Marriage licences in NM http://www.politico.com/story/2013/08/same-sex-marriage-in-new-mexico-95975.html

#126 - not comparing apples with apples there.

I see only three issues: providing a service to everyone; working conditions; quality of service provided

The issue of the quality of service provided has already been raised above several times, with no good answer. As a business I don't think you have to provide the best service you can? - the photographer could provide only shots of individuals looking unhappy, ditto the speachwriter. It might lose them some business but that's always been their perogative.

Your top two points - yes they do.

Third - display no. Print if requested, yes. Assuming pictures don't contravene other decency laws?

>128 reading_fox: I see only three issues: providing a service to everyone; working conditions; quality of service provided

Well, Tim's point was that he sees a fourth issue: freedom of expression. The court also acknowledged that the case at least brushed into free speech territory. MY point was that where it does, compromises are rarely one-size-fits-all.

Consider the Muslim who refuses to work on a Jack Daniels ad campaign. He is then fired for not doing his job. Has he been the victim of discrimination because he is a Muslim?

#129

No, he is fired because he wouldn't do his job. If he wouldn't do it because he couldn't do it, being a Muslim, then it's a sign he might have to rethink his profession, or where and under what circumstances to exercise it.

Nothing to do with the employer/customer.

>130 LolaWalser: And what about the woman who is fired because she needs maternity leave? She's also "not doing her job."

The point is, there are a myriad of ways we as a society can function that allows us to be who we deeply are, and still treats everyone with respect. A sensible employer might not assign his supposedly valued Muslim employee to such a project, in deference to his religious sensibilities. In the same way he'll honor whatever religious holidays he needs to. And the employee, in turn, will compromise in other ways--by working on Christian holidays, for example, so other people in his company can have time off.

Where do we decide that we've actually reached the point our rights have been violated?

#131

Is it legal to fire someone on a maternity leave? Not in less barbaric countries at least.

Any sort of circumstances can be imagined for any number of specific scenarios. A real person may stretch tolerance for workers' behaviour as far as they please or the business can bear.

But you can't reasonably codify those circumstances.

There are so many rotting red herrings in this thread one can scarcely breathe. Free speech in relation to wedding photography being a particularly cod-sized one.

The wedding photographers are hired to perform a service, professionally. Some photographers, like some dentists and hookers, are artists, or think of themselves as artists, or "dabble" occasionally. But the essential that gets taken for granted is that professional's competence. Behind everything that is well done lies skill and art but it is not all "Art".

The minimal expectation from the commercial photographer is the same we have of anyone selling their skill: competence, meaning having knowledge, experience, tools of the trade, and a professional ethic that will make them do the job as well as they can.

All this before any notion of "art" or "free speech" enters the field.

As it is, this lady withheld her "artistic" expression from those customers, but she has freely expressed her homophobia. I'm not seeing any of you pro-discriminators worrying about limiting THAT.

I think this thread is filled with super-mackerel sized red herrings, yes...But there is an easy way to score the argument: minus one point for every use of the new flavory word 'expressive'. One positive point for any believably empathetic attention to the feelings of a minority abused.
But it really becomes silly when it comes down to who can abuse who, legally. Arctic won't marry me and anybody because I won't be counseled by him. Can I sue? I drove cab for several years on and off and find that my profession is maligned here as not 'expressive'. Prosfilaes is very good on the problem of the way expressive is used.

I hardly think not doing your wedding would count as abuse. As a matter of fact, were I do to your wedding, you would probably consider THAT to be abuse!

123

"It's not legal for them do that; it's still discrimination based on sexual orientation."

If spoken, yes I agree. But if the thought remains inside the photographer's head and an excuse substituted for it, then - as you say - no-one can prove a thing. The professional has avoided a conflict, but has also failed to engage with a potential learning experience.

However, it would also mean that the law on discrimination and the law on freedom of expression, remain in potential conflict.

>136 Tid: If spoken, yes I agree. But if the thought remains inside the photographer's head and an excuse substituted for it, then - as you say - no-one can prove a thing

With the caveat that if a detectable pattern emerges the photographer may still find himself/herself on the hot seat.

#136

Which is what I brought up already in #15.

There are ways to rebuff, snub and in general show yourself less than willing to serve a particular customer which leave that customer with little recourse. It is happening everywhere all the time, not just against gays, but anyone a given "professional" doesn't feel deserves their service, including black people, poor people, badly-dressed or not-cool-enough people, single women, teenagers and so on in more variations than I can imagine.

But it has to be done well, with minimal fuss-potential. So, yes, the photographer in question could have used any number of deflecting excuses, and then figured out some way to avoid such situations in the future. Butting principle against principle, when her principle is already recognised as legally irrelevant, wasn't a good choice.

>138 LolaWalser: I had such an experience two nights ago at what has been one of my favorite little joints. The reason I was singled out seems to be my persona, but I cannot express what it is about it/me that allows people to treat me like a bad child (I am 54); but that is what happened, and despite my knowledge of the limitations of the perpetrators the event was to a degree painful. This was far from the first time that I entered a public situation with an entirely good will, behaved politely, and was insulted one way or another. (My Slovene is good enough that it is not the reason.) My point is that, as you got across earlier, publicly expressed (expressive!) distaste or whatever is painful and when it can be attributed to a clear reason as with a minority it seems to me that the issue of personal freedom is over-ridden by the issue of potential perpetual personal harm.

http://www.theguardian.com/uk-news/2013/aug/28/gay-marriage-opposition-wicked-ar...
"The archbishop of Canterbury has said his stance against gay marriage could be seen as "wicked". Justin Welby said he stood by his decision to vote against same-sex marriage legislation, but said that could be seen by some as akin to "racism and other forms of gross and atrocious injustice".

Speaking at the opening on Wednesday of the Evangelical Alliance's new premises in King's Cross, London, he said society had evolving views about sexuality, and many younger people thought opposition to gay marriage was "plain wrong".

The Marriage (Same-Sex Couples) Act received royal assent in July and gay couples in England and Wales will be able to wed at some point next year. The legislation had a tortuous passage through parliament, with staunch opposition from many Conservative backbenchers and religious groups.

Welby said: "What I voted against was what seemed to me to be the rewriting the nature of marriage in a way that I have to say within the Christian tradition and within scripture and within our understanding is not the right way to deal with the very important issues that were attempted to be dealt with in that bill.

"The bill was clearly, quite rightly, trying to deal with issues of homophobia in our society. As I said at the time in the House of Lords, the church has not been good at dealing with homophobia – it has at times, as God's people, either implicitly or explicitly supported it and we have to be really, really repentant about that because it is utterly and totally wrong.

"But that doesn't mean that redefining marriage is the right way forward. That discussion is continuing and the church is deeply and profoundly divided over the way forward on it. I am absolutely committed not to exclude people who have a different view from me, I am also absolutely committed to listening very carefully to them."

'Redefining marriage:' rhetorical swill.

All this before any notion of "art" or "free speech" enters the field.

So, it would be no violation of free speech if the government in a state without same-sex marriage made it a criminal offense to take and publish same-sex wedding photos?

I don't see that that necessarily follows, and I question your motives for attempting that line of argument.

That aside, I find it troubling whenever the government limits behaviors that are not clearly harmful to the greater good. I do find it troubling that some wedding photographer may be forced to photograph what she doesn't want to. But I find it more troubling that people of her sort are still causing pain to others. In the case in question I think I would have said fuck off and gone elsewhere, but that is no argument.

#142

I don't understand what's the relevance for what I was saying.

In answer to your wholly irrelevant hypothetical, as far as I can tell from observing US politics and opinion, it would be a violation of free speech, or--what this really means--someone could make a good case that it is.

Why do YOU want to protect homophobia?

>142 timspalding: I don't understand that leap either, Tim.

I am having a hard time too. Are you saying that it would similar forcing someone to take photos at a same sex wedding as it would be to ban all such photos?

My concern for this, and it is not a reason to back track on the decision at all, but that this gives credence to all those who say that one day a pastor will be forced to do same sex weddings. (Of course I understand that there are probably people on here that believe that would be a good thing.)

Can a pastor refuse to marry an interracial couple?

I would not call such a person a pastor, but I suppose they could.

Are you saying that it would similar forcing someone to take photos at a same sex wedding as it would be to ban all such photos?

I do apologize for the convolution in expression. But, yes. Free speech includes both the right to speak and not to speak. The government may not shut down the New York Times. It may also not require the New York Times to print articles it does not want to print. The government may not shut down photographers, not may it compel them take photographs they don't want to. As with the freedom to NOT attend prayers and services—defended elsewhere on LibraryThing by the very people on this one, and ignored here—there's a double standard.

It seems to me that if you don't support freedom of speech and conscience when it goes against your social sympathies, you don't support it at all.

>149 timspalding: 'It seems to me that if you don't support freedom of speech and conscience when it goes against your social sympathies, you don't support it at all.'

You equate social sympathy with human empathy, it would seem. Your formula would have helped against the Civil Rights Movement.

>149 timspalding: As with the freedom to NOT attend prayers and services—defended elsewhere on LibraryThing by the very people on this one, and ignored here—there's a double standard.

It seems to me that if you don't support freedom of speech and conscience when it goes against your social sympathies, you don't support it at all.

Then your answer to #125 would be yes, a photographer at WalMart could refuse to take pictures of black people on free speech grounds. You would also support yelling fire (falsely) in a crowded theater as a kind of performance art.

I think the notion of a completely unbounded "freedom of conscience" and "freedom of speech" in any community is one of those distant unreachable ideals--a shore we can see, but can never land on. The best you can do is try to keep the shore in sight. Which I think everyone on this forum has shown they are in favor of doing.

>150 RickHarsch:

What stupidity. And, yes, I include empathy. I am empathetic when someone wants to shut down protests by the Westboro Baptist Church. They are monsters. But freedom of speech and freedom have religion have no meaning if you only care about them when you like the outcome. This is the American understanding—the understanding of everyone from the founders to today's ACLU. If you think freedom is something to given to the the favored and denied to disfavored, you differ from Bull Connor is no essential way.

Then your answer to #125 would be yes, a photographer at WalMart could refuse to take pictures of black people on free speech grounds.

First, I think one can fairly argue about differing levels of free speech, creativity and contractual versus freelance arrangement--as the court did. I respect that discussion.

Second, you largely sign away free speech rights at the office in an employment contract. You can be fired if, when asked, "What's good here?" you reply "Nothing. This place is a greasy dump." Walmart's policy would, I'm sure, be anti-discriminatory. If the photographer in question had been employed by a company, they would have been entirely within their rights to fire her.

You would also support yelling fire (falsely) in a crowded theater as a kind of performance art.

See the dissent in that case. It's implied when you buy a ticket to a theater that you don't behave in such ways. But you are free to go yell fire in your own home. Also, there are immediate public safety concerns which do not apply in this case. I wouldn't not support the right to take flash pictures during a public gas leak. That doesn't mean I oppose freedom of speech.

I think the notion of a completely unbounded "freedom of conscience" and "freedom of speech" in any community is one of those distant unreachable ideals--a shore we can see, but can never land on.

I understand where you're coming from, but I think this notion comes about from a misunderstanding of how freedom works--evinced by your failure to see that freedom of speech and conscience can be contracted away, when you take a job, when you enter a private business, etc. If you don't see the interplay between contractual and property rights and other rights--something the Founders simply presumed—then the world does indeed look like a chaotic compromise.

The best you can do is try to keep the shore in sight. Which I think everyone on this forum has shown they are in favor of doing.

Well, I suppose here we differ. I'm a classic American believer in the Bill of Rights and the ideas that underlie it. I don't think the government can shut down a newspaper, no matter how ugly its opinions, and how much the censors talk about "keeping the shore in sight" as they smash the presses. Ultimately, if you don't support freedom when you don't like it, you don't support and are indeed an enemy of it.

Frankly, this is one aspect of the gay-marraige fight I really detest—freedom for me but not for thee. Most supporters of same-sex marriage don't really see it as the right to freedom to love who you want and enjoy equality before the law. If they did, they wouldn't support the current laws about polygamy--in which polygamous couples risk arrest, and second spouses can't inherit property or even visit their dying husband in the hospital. They just want freedom for themselves, or for the group they favor—and hick mormons, muslims and Africans aren't people they favor. Sorry to get strident, but I actually support freedom. Sometimes I don't like the social results of supporting freedom for people I dislike. That's how you can know I actually support it.

I find this conversation very interesting, as someone who is enraged every time I hear about a pharmacist refusing to dispense birth control pills because of religion. This is an interesting variation on that.

I'm curious about the opinion of the people who support the photographer's desire to reject clients based on sexual orientation.

Let's say it wasn't a photographer, it was a bakery. Baking and cake decorating is an art form that people hire themselves out to do, right?

What would be the rights of a baker in the following situations:

1. A very affectionate homosexual couple comes in prepared to spend a lot of money on a custom wedding cake, complete with rainbow icing and hand-painted men in tuxes as the topper.

2. A woman comes in to order a basic wedding cake, no topper, and identifies it as for her wedding to her female partner.

3. A woman comes in to order the same cake as in 3 but doesn't give details about the occasion. The baker suspects she is ordering it for a gay wedding.

4. A man comes in to order a cake that says "Happy Birthday Steve!" The baker suspects it's for his male lover.

5. A woman comes in to purchase a premade cupcake from the refrigerated case and mentions that it's a surprise treat for her girlfriend.

6. A man comes in to purchase a cupcake from the case that he intends to eat himself. The baker suspects the customer is a homosexual.

Does the customer have the right to refuse to make cakes based on the sexuality of the people that will be eating them?

Does this change if it requires sexuality-specific decorations?

Does it change if the product has already been baked?

Does it change if the baker isn't sure about the sexual orientation of the customer?

Does this change if the customers will be using it to celebrate their love for each other or just eating it as a snack?

Should the baker have to serve every one of these customers but be allowed to do give them rude and crappy service in hopes of driving away gay customers?

I would question whether cake baking is sufficiently expressive to merit free speech protection when weighed against anti-discrimination laws.

Incidentally, you could add that the baker was required to deliver and cut the cake within a religious space they feel conscience-bound to avoid as another "what if?"

a pharmacist refusing to dispense birth control pills because of religion.

I wouldn't support it against an employer. If Walgreens requires you to do X, you can't get out of it by claiming it's against your religion, except in rare balancing cases. But if someone wanted to open up their own special drugstore, I have no problem. If people can open up drugstores that only sell non-medicines (homeopathy), they can open up ones that have no abortion pills, or whatever. They would need to be careful about acting as state agents, as so much medical care is state related.

Tim tossed off a line upstream that needs to be highlighted:

I don't think it's a coincidence that three of the four (building inspector, firefighter, paramedic) are government jobs...

No, it's not a coincidence: it's one of the virtues of keeping religious belief a private matter, and keeping the public realm as non-sectarian as possible.

Absolutely. Which is why it's imperative that the government not force people to assist or attend religious services—even if the service is for gay people.

>155 timspalding: Is cake decorating really less expressive than taking wedding photos? I'm specifically interested in what you think about the first two scenarios.

>158 weener:

I think it is. I think it's clear a lot of people here have a very low opinion of wedding photography. I know too many of them, perhaps--wife's best friend, wife's cousin, secondary friend. And my wife dabbles in photography, in addition to being a novelist. (Even though she's not a professional photographer, I would object to the government taking away either her pen or her camera.) Perhaps that's all this is. Perhaps we need to wait for a more clear expressive example, like a composer or a poet.

>159 timspalding: I think it is. I think it's clear a lot of people here have a very low opinion of wedding photography.

I think most of this discussion vacillated around just how much of an artist a wedding photographer really is. A hard determination to make, since none of us have seen her work. But the judge, at least, took it into consideration and found it to be something other than "expressive."

My brother, by the way, is a photographer who does weddings. It's his least favorite gig, though, precisely because of the constraints imposed by the often artificiality of the setting, the demands of the clients, not to mention the difficulty in getting happy, beautiful pictures out of a group of highly stressed people.

Wedding cakes are an expressive skill unto themselves:



I have some experience with that, too, having made the wedding cake for said brother (married on Halloween, so the decoration involved lots of icing spiderwebs). It required drawing, constructions, some sculpting, even painting (to get frosted sugar to stick in patterns you paint the fondant with a kind of egg white wash).

>157 timspalding: it's imperative that the government not force people to assist or attend religious services—even if the service is for gay people.

What think you of the Equal Time Law, I wonder? Or the now defunct "Fairness Doctrine"?

>153 timspalding: Frankly, this is one aspect of the gay-marriage fight I really detest—freedom for me but not for thee.

Which is how marriage equality people hear religious objections. But here again we are in the realm of the ideal vs. the pragmatic. A person's ideals are not invalidated just because fail to live up to them fully. My personal problem with polygamy isn't the multi-partner nature of the relationship, but the inequality usually inherent in it. But consent is everything, so yeah, if they all freely consent--if they are each truly free to choose---they have the...uh, intrinsic right...to the familial relationship they want. Whatever floats their boat, etc. The law has a fair way to go to catch up with that scenario, though. And in the meantime I don't think we should deny the people whose rights it has finally caught up to.

#152: But freedom of speech and freedom have religion have no meaning if you only care about them when you like the outcome. This is the American understanding—the understanding of everyone from the founders to today's ACLU.

Actually, no. I know of no place that has given up libel and slander laws on the demands of freedom of speech. Freedom of religion has all sorts of limits; drug laws, the right to beat your children, the right to force your children into arranged marriages.

Second, you largely sign away free speech rights at the office in an employment contract.

I wasn't talking about someone employed by Walmart; I was talking about someone renting space from a Walmart.

#153: a misunderstanding of how freedom works--evinced by your failure to see that freedom of speech and conscience can be contracted away, when you take a job, when you enter a private business, etc.

So only certain Americans know how freedom works? That's certainly not what most Americans believe; they believe that certain contracts are unconscionable. That's not what the French and most Europeans believe; for one example, they believe that freedom is enhanced when an artist can't be forced to give up their moral rights on a work of art.

Note that, for example, the Thirteenth Amendment restricts the freedom to contract away yourself. Namecheck the founders all you want, you can't simply wave the flag and claim it supports everything you'd like.

It's also amazing that nobody can contract away anything when they get a business license. If you get the state to give you a LLC saying that you are separate from your business for many purposes, why can't the state require that your business (not you, except in the way that you are entangled in your business) will not discriminate? You as a person have a certain right to discriminate, but I fail to see why a legal "person" created under the laws of the state can't be bound by it.

Ultimately, if you don't support freedom when you don't like it, you don't support and are indeed an enemy of it.

You don't support a lot of freedoms you don't like. To fire an automatic weapon in a crowded neighborhood, to use human sacrifice (a restriction of religious freedom!), to comport oneself as one would on LT's forums. Loudly extolling your support of freedom ignores the subtleties.

Frankly, this is one aspect of the gay-marraige fight I really detest—freedom for me but not for thee.

I don't recall them ever saying that. They don't tend to bring up polygamy.

As I've mentioned before, polygamy and gay marriage don't tend to work well together. Heck, polyandry and polygamy alone don't work well together. If Sue and Sally are married to John, can Sue marry Joe? Without or without gay marriage, if 10 men are each married to 10 women (100 marriages, I guess), what happens if Sue wants to divorce John? Instead of whining about it, actually write out a proposed theory of what marriage would mean in this hypothetical situation of yours.

#155: I would question whether cake baking is sufficiently expressive to merit free speech protection when weighed against anti-discrimination laws.

And again I detect white-collar bias in your choice of what's expressive. Sculpture and painting in the medium of cake and icing is still sculpture and painting, classic art forms.

#157: Which is why it's imperative that the government not force people to assist or attend religious services—even if the service is for gay people.

The photographers in this case didn't know it would be a religious service; the court quotes the emails, and they do not mention that. In any case, you've never said anything about people beyond photographers assisting in religious services; limo drivers and food delivers attend and assist religious services regularly. This is separate from the expressive part; if this is true, a baker should not have to bake for religious weddings, limo drivers shouldn't have to drive to and from them, etc.

>152 timspalding:

'What stupidity. And, yes, I include empathy. I am empathetic when someone wants to shut down protests by the Westboro Baptist Church. They are monsters. But freedom of speech and freedom have religion have no meaning if you only care about them when you like the outcome. This is the American understanding—the understanding of everyone from the founders to today's ACLU. If you think freedom is something to given to the the favored and denied to disfavored, you differ from Bull Connor is no essential way.'

Clearly you are shaken here. I do believe you personally are not a racist - I assume it. But your argument simply doesn't help the disenfranchised. Freedom of speech must be limited in many cases as listed by others above, but, further, by including freedom of conscience so generally you provide supporting arguments for, especially, those racists who for social reasons, historical reasons, could not comprehend racial equality. You basely twist my words to posit something bizarre in order to compare me to Bull Connor in your rage. I guess I was born to get under your skin.

Incidentally, I am appalled that the human still has to legislate such issues, for I deplore any and all limits on my freedom...but I would never yell 'fire!' in a theater and I don't give a rat's ass what anyone else does for love or sex.

>125 prosfilaes:: "Commerical works are not free speach. Whether it's poetry for hire, photos, statues or anything else, if you are running a business offering that as a service, it must be for everybody, jew, nazi, KKK, gay, catholic, athiest and all. "

I find it interesting that this one passed by without comment, since mainstream newspapers like the New York Times regularly refuse to run ads sponsored by racists and Nazis.

By the arguments offered in this thread, if the Westboro Baptists wanted the New York Times to print a full page ad saying, "God Hates Fags", and they were willing to pay for it appropriately, it should be illegal and discriminatory for the Times to refuse.

>141 RickHarsch:: "'Redefining marriage:' rhetorical swill."

Illogical ignorance. Even people who support gay marriage should be willing to recognize that it is, in fact, something new, a redefinition of what marriage means.

>163 nathanielcampbell: In Miami Herald vs Tornillo the Supreme Court specifically stated that newspapers can not be forced to publish something they don't want to because of state-mandated "equal time" laws:

“Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.”

From here: http://www.infoplease.com/cig/supreme-court/getting-word-out.html#ixzz2dMuJ4QON

It was deemed a restriction on the guarantee of a free press, and although the ruling was over whether or not a newspaper should be required to give space to all poltical candidates equally, it has bled over, I think, into an understanding that anything in the paper is under the control of the press itself. Paid for content or not.

Which, interestingly, is a somewhat opposite take from the "Equal Time Rule" that can be made to apply to television broadcasting stations regarding political campaigns. Perhaps because in that case the courts recognized the semi-public nature of broadcasting stations.

I would question whether cake baking is sufficiently expressive to merit free speech protection when weighed against anti-discrimination laws.

I dunno. I'd actually consider decorating a cake to be more expressive than documenting a wedding, but that's just me.

>165 southernbooklady:: "it has bled over, I think, into an understanding that anything in the paper is under the control of the press itself. Paid for content or not."

So if paid newspaper advertising--the epitome of commercial activity, wouldn't you say?--is exempt from anti-discrimination laws on the basis of the First Amendment, then why shouldn't wedding photography?

That is, we've already established that First Amendment rights can trump equal access in the commercial arena. So the argument that the wedding photographer has to suck it up because he or she is operating in the commercial arena isn't necessarily valid.

>167 nathanielcampbell: the epitome of commercial activity, wouldn't you say?

Is it? The "epitome"?

It's worth noting that one of the focuses of the court's decision for why the photographer was NOT exempt was because she was not acting as "press" -- her photographs were products accessible to her clients behind password-protected website pages. She was not documenting "for the public" but hired to act for a particular person.

That difference was regarded as significant to the court, and justification for the requirement that she make a compromise.

>168 southernbooklady:: "That difference was regarded as significant to the court, and justification for the requirement that she make a compromise."

And I understand that -- it's one of the reasons I'm still not sure which side to take on this (other than I think it would have been more respectful of everybody's liberty if they gay couple had just sought a different photographer rather than suing in court -- that is, by suing, they forced the court to have to choose between violating the rights of one side or violating the rights of the other side).

But several folks have claimed that there shouldn't even be a discussion of whether the photographer should have an exception to non-discrimination rules, because clearly all commercial activity must follow those rules per se. This argument that commercial activity must follow all government regulations needs to be challenged, as the newspaper advertising policies are clearly an exception. And once there's an exception, the question becomes no longer, "Should there be an exception?", but rather, "How many cases should qualify for the exception?"

If a newspaper refused to do wedding announcements for same sex couples, should they also be subject to anti-discrimination laws? It seems if you are making a photographer take a job they would rather refuse (and remember, this is a day's work for them) you should also be able to force newspapers to print run-of-the-mill wedding announcements, which take less creativity than wedding photography.

And I agree that cake baking is clearly an expressive skill. The Zombie/Menhendi cake for our wedding was a work of art.

I think the more pertinent question, Nathan, is why are newspapers exempted?

And it should be noted that they are not exempted from all anti-discrimination laws--they can't discriminate in hiring or firing, for example. And I would bet that they aren't allowed to discriminate in who they will and won't sell a subscription to.

I'd need proof that this photographer (any commercial photographer/merchant of any kind in such a situation) is actually "expressing" something artistically discernible, unique to her "vision" and clearly distinguishable from any other wedding photographer. If you can't give such proof, fiddlesticks to your benighted "expressivity".

Jesse's excellent remark is most pertinent: "It's not about the fucking photographer." If someone wants an original, individual take on their wedding that will make the end result worthy of exhibition and critical review, they won't shop for that in a strip mall where you are as likely as not to end up with a homophobic Christianist troglodyte giving you grief about the happiest day of your life. Your ordinary Jills and Joes, Jacks and Janes, in any combo, will want someone capable of giving them an album of well-lit, well-framed, unblurry mementos including more or less democratically all the guests from Aunt Abigail to Zonker in more or less flattering and not gross moments.

Also, insisting on the subjective component leads to thought policing. Instead of considering the goods on sale, we're considering what the salesman's thinking. As I asked before--if the basic complaint is moral, does she also check that the heterosexual couples she's serving are moral? How far does it go?

Tim's repeated example of a poet hired to write a panegyric is telling. Clearly, Tim is implying that someone who doesn't like him, or isn't a Catholic, or doesn't like Catholics, wouldn't or couldn't write such a poem. If they were "forced", their "expressivity" would suffer terribly. But, as we know, lots of poets have written lots of poems for reasons of ass-kissing or bill payment etc. So, it isn't absolutely necessary to put one's heart in it, or to put one's heart in it for a reason other than the desire to avoid beheading or bankruptcy. That, however, isn't good enough for Tim.

You gotta LOVE Tim, or APPROVE of Tim, before he'll trust you to pen him an ode (shoot his wedding picture). And that's a HARD condition to fulfill.

#156

one of the virtues of keeping religious belief a private matter, and keeping the public realm as non-sectarian as possible.

Amen. You'd think that if this incident makes anything clear, it is the need to keep religion out of the public sphere as much as possible. (Who was it said it poisons... everything? Well, see for yourself. Smart man.)

Instead... cue the staunch defenders of freedom who would apparently like nothing better than to see society degenerate into a mess of squabbling microcosms. Ah yes, that sort of thing is excellent for religion, isn't it. The plagues and locusts can't return too soon either.

>170 Arctic-Stranger: If a newspaper refused to do wedding announcements for same sex couples, should they also be subject to anti-discrimination laws?

I think the perspective from the Supreme Court is that a newspaper is an entity in itself, and cannot be reasonably reasonably divided up into percentages of editorial vs. commercial content in terms of applying the law.

#171

Isn't the NY Times private property of some one (person, company, whatev)? It's not government. It can make its house rules about any number of things. So, I don't know, those who complain about the NY Times not giving space to neo-Nazis can take it up with those damned Jewish liberals, I guess.

172

I don't know about how your wedding went, but having a photographer that worked really hard to put us in the best light possible was incredibly important in ours. She posed us, she took special pictures of the rings, she got us to smile and laugh and kiss in a natural, all while taking pictures of my painfully camera shy wife. She will be the first to tell you that she is not photogenic, but our photographer captured the best of who she was, and who we were.

I dabble in photography, and I cannot do that. She knew how to handle the camera, how to handle us, and how to take the shots that we really wanted.

If the Times can make house rules about who they will and will not serve, why not a photographer?

Things that are basic human rights (housing, food, health care, community security, etc) should be subject to all kinds of anti-discrimination laws. I would even put news in that, and make the Times subject to anti-discrimination, as well as banks. (BTW, the Times DOES publish same sex wedding announcements. But so should every local newspaper.)

>175 Arctic-Stranger: I would even put news in that, and make the Times subject to anti-discrimination, as well as banks.

And the Christian Broadcasting Network? The National Catholic Register?

If the Times can make house rules about who they will and will not serve, why not a photographer?

In this case, because being a photographer is not synonymous with being "press"?

Does freedom of the press mean they have the freedom to discriminate against minorities?

>177 Arctic-Stranger: Does freedom of the press mean they have the freedom to discriminate against minorities?


editorially? Or as a business?

How about, does freedom of religion mean a church has the freedom to discriminate against minorities?

in their own doctrine? or when they are out in the world with others?

>172 LolaWalser:: "But, as we know, lots of poets have written lots of poems for reasons of ass-kissing or bill payment etc."

But should the government order them to under the force of law?

>174 LolaWalser:: "Isn't the NY Times private property of some one (person, company, whatev)? It's not government. It can make its house rules about any number of things."

Now I'm confused Lola: the wedding photographer's business is just as much "private property" as is the New York Times. So why can't the photographer make house rules about any number of things?

178

If freedom of expression (speech) takes a back seat to the need to insure civil rights for all, then why should the NY Times get a pass for not taking advertisements from people who they fundamentally disagree with? If a photographer has to take a job from someone who they personally feel has not business doing what they will be photographing, why should the Times be able to turn down business from people because of their philosophy or world view?

Does this apply to churches? Perhaps. (In England there is a lawsuit concerning the Church of England's refusal to do same sex marriages, but that is an apples to oranges comparison.)

For that matter, if a research lab takes contract work, and someone comes in and wants them to compile all cases of Black on Black crimes to prove that African-Americans are more violent and do not deserve the same civil rights as decent, law abiding white people, can that lab refuse to take that job?

>178 southernbooklady: I think you are deliberately conflating the rights of citizenship that the courts took care to distinguish between, but to what purpose, I'm not clear.

Suppose the answer was yes, we must pick one over the other: Freedom of expression vs equality under the law.

So the options are: a society where every utterance is subject to potential censorship, or a society where discrimination is not only allowed, but actually protected.

Is that really the set of choices you want?

OK, if you're not into the bakery analogy, let me try another thing to figure out where you draw the line. Should the photographer be allowed to discriminate against homosexuals, or just events that celebrate homosexual love? What if the lesbian couple tried to hire this photographer to take some professional pictures of them for a Christmas card? To photograph their daughter's birthday party? Their house, for insurance purposes? If they accept the job not knowing that their client is in a same sex relationship, should they be allowed to back out when they find out?

At what point should a person be allowed to refuse to practice their craft for the benefit of a homosexual client?

>182 southernbooklady:: "Is that really the set of choices you want?"

No, but in choosing to sue the photographer, the gay couple forced the court to decide between the two. The court chose the gay couple's civil liberties over the photographer's civil liberties.

Now, I'm not saying that the court was necessarily wrong. But I'm not saying it was necessarily right, either. I don't know how to get out of this sticky wicket, as it were.

184> "The court chose the gay couple's civil liberties over the photographer's civil liberties."

Did you even bother to read the statute?

From #73
"New Mexico Statutes - Section 28-1-7 — Unlawful discriminatory practice.

F. any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation" http://law.justia.com/codes/new-mexico/2006/nmrc/jd_28-1-7-bcb3.html

So a newspaper, which is just as much a public accommodation as a photographer, has to take ads from the Westboro Baptist Church.

>184 nathanielcampbell: No, but in choosing to sue the photographer, the gay couple forced the court to decide between the two.

One way to look at it is to fault the gay couple for their sense of entitlement. They could have just found another photographer and let the whole situation fizzle out. No muss, no fuss, and the photographer would have been free to go one quietly discriminating against certain kinds of clients, who would get the message and just stop coming to her.

Another way to look at it would be to honor couple's sense of civic justice, and to acknowledge their decision not to let the instance pass sent a clear message to the community that behavior that was okay before, now needs to be rethought. Since the photographer only had to pay court costs, we're not talking about a frivolous lawsuit for ridiculous amounts of money in compensation for imaginary emotional trauma.

Then again, think of how this all played out. Somebody had a conflict with somebody else, and felt strongly enough about it to go to court. If they were in Russia they could have the gay couple arrested. In Uruguay they could have them executed. Here where I live a man was arrested for murder because he had a dispute with his neighbor and they both got their guns. One of them died.

They could have just fought it out on the front lawn. They could have gone on the television talk show circuit and fought it out in front of thousands of viewers, who would have been titillated by the spectacle.

But no. They let the courts decide. Isn't that a good thing? Isn't that what we want people to do when the issue is important enough?

I have no problem with what the couple did, although I wonder how their photos turned out.

But I just wonder what the response to this will be. Will Evangelical Christians, who have been bellyaching about persecution for ages (a persecution which is a delusion in this country, I might add) take this as an opportunity to file a similar law suit?

>185 theoria:: I second Arctic's point: a plain-text reading of that statute makes it illegal for any newspaper to refuse any advertising on the grounds that it is offensive. After all, that would be discriminating in making the public accommodations of newspaper ads on the basis of, e.g., race (if the ad is racist) or religion (if the ad promotes religious bigotry, ala Westboro Baptist).

>189 nathanielcampbell: a plain-text reading of that statue makes it illegal for any newspaper to refuse any advertising on the grounds that it is offensive

I suppose that someone from Westboro could attempt to place an ad and sue when they were refused (if they were refused -- god knows papers these days need the money) and then the courts would revisit the question again. In which case I think it is likely that a judge would come to the conclusion that a newspaper is NOT like a wedding photographer, and uphold their right to refuse content that wasn't in accord with their standards.

That depends highly on the nature of the content, though. An advertisement for a meeting and barbecue at the Westboro Baptist Church might pass muster. An advertisement that listed the names of everyone the church thought was gay and called for people to picket their houses might come under contention. An advertisement that called for people to physically harm gay people would be rejected on the grounds it was an incitement to violence.

Newspapers can't knowingly print things that aren't true about a person, for example. Defamation and libel laws are often hard to prove, but they are on the books.

If the newspaper refused to take ads from the Jewish synagogue, do you think the ruling would be the same?

And for the record, it does depend on the content. Let's just say the ad simply says, "Westboro Baptist Church; where the true word of God about the sinfulness of homosexuality is preached."

Rather than criticizing the statute directly for including "religion," you've aligned yourself with Westboro. Well played.

The value of plain text reading is doubtful.

Newspapers set conditions on the advertisements they accept. The NY Times, for example:

"You must read and agree to the following terms and conditions before creating and submitting your online only advertisement:

Content and/or images submitted do not contain attacks of a personal nature, are overly competitive, libelous, threatening, harassing or refer abusively to the goods and services or others.

The content and/or images you submit do not contain any hateful, obscene, abusive, harassing, threatening, libelous statements or illustrations

Any and all content and images submitted must be accurate and in no way fraudulent, deceptive and/or misleading.

The content cannot contain any information that violates civil, municipal, provincial/state or federal laws. . .

The following list describes some of the kinds of advertising that The New York Times on the Web will not accept: (This list is for illustrative purposes and does not include all types of advertising that we may find objectionable. Each advertisement must be judged on its own merits; we do not evaluate advertisements comparatively).

General

Advertisements that contain fraudulent, deceptive or misleading statements or illustrations. Attacks of a personal nature. Advertisements that are overly competitive or that refer abusively to the goods or services of others.

Discrimination

Advertisements that fail to comply with the express requirements of federal and state laws.

Offensive to Good Taste

Indecent, vulgar, suggestive or other advertising that, in the opinion of The New York Times on the Web, may be offensive to good taste. This includes pornography."

None of which, it should be pointed out, remotely suggests that an ad would be refused simply because it was submitted by a gay person, or Nazi, or an Islamic radical, or a Black Panther. But only refused on the grounds cited--that it contains false information, or breaks the law, or is "offensive to good taste."

>172 LolaWalser: 'And that's a HARD condition to fulfill.' lqarl

Nathaniel, marriage is a sort of contract between two people 'in love' who decide to form a bond. Where is the redefinition?

One unanswered question directed to one person, but basically applicable to many, was, from 144, 'Why do YOU want to protect homophobia?'

The statute aligns itself with Westboro, not I. You apparently did not read earlier posts where I stated my concerns what this decision can lead to.

all I am saying is that this decision is complicated. On the one hand they assure that no one will be discriminated against due to sexual orientation. That is good. On the other hand, a photographer is forced to ply her craft for a couple she does not want serve. Who else is affected by this?

To think there will be laws with no negative consequences is wishful thinking. Are we prepared for the possible consequences of this decision?

194

For the same reason the ACLA wanted to protect the rights of Nazis to march in Skokie.

I defend neither homophobia, nor Nazis, but I do defend the rights of people, even their right to be very wrong on certain issues.

I think homophobes can march in Skokie if they'd like.

CBN (Christian Broadcasting Network) edited out Pat Robertson's "gays kill with AIDS rings" rant, apparently recognizing when a line has been crossed that should not be crossed. http://www.theatlanticwire.com/national/2013/08/cbn-edits-out-pat-robertsons-com...

"The Christian Broadcasting Network, which has alternately apologized or defended Pat Robertson a lot lately, reportedly edited out a comment by the 700 Club co-host from the archived version of today's broadcast. The host, responding to a question from a viewer who was concerned about an HIV-positive church member, claimed on air that gay people in San Francisco use rigged rings to try and give people AIDS when they shake hands. In a later version of the episode posted to CBN's website, however, those comments were nowhere to be found."

Pat: I THINK PEOPLE IN THE GAY COMMUNITY, THEY WANT TO GET PEOPLE. THEY'LL HAVE A RING, AND YOU SHAKE HANDS, AND THE RING HAS A LITTLE THING WHERE YOU CUT YOUR FINGER.
Terry: REALLY?
Pat: REALLY. IT IS THAT KIND OF VICIOUS STUFF, WHICH WOULD BE THE EQUIVALENT OF MURDER.

And Jesus wishes he had kept making book cases.

>194 RickHarsch:: "Nathaniel, marriage is a sort of contract between two people 'in love' who decide to form a bond. Where is the redefinition?"

Setting aside the fact that the "in love" part was, until quite recently, a superfluous and minor signifier in the definition, the simple fact is that before the late 20th-century, no human society on earth recognized a gay couple as fulfilling the qualifications to be married.*

The refusal of some in the gay-marriage debate to recognize this plain fact of history and sociology makes their clamoring about homophobia a bit suspect.

-------------
*There are a very few minor and possible exceptions, all of which appear to have been unique cases that were available only to the elite, e.g. some have suggested that a medieval Byzantine prince technically drew up a marriage contract with his gay partner -- but the evidence is sketchy and open to wide variances of interpretation; and even if that really is what it was, it was till a unique, unrepeated event undertaken by a prince because he had the power to do whatever he wanted.

ETA: And as I said earlier: the fact that it does constitute a change to the definition of marriage is not necessarily a strike against gay marriage. There are plenty of reasons to support the change.

But to deny that it is, in fact, a change is either duplicitous or ludicrous.

Either duplicitous or ludicrous? My choice? Diabolical.

The history argument is lame. (Marriage is a sort of farce, as you know, certainly the bonobo knows, so it hardly matters who marries who in any sense, so, logically, opposing any particular 'type' of marriage is likely the result of having a latent vicious itch scratched: people you hate got something you don't want them to have. I can't imagine any other explanation.) Anyway you are clearly homophobic, judging by your posts, particularly this one in which you say that since it took so long to happen it is self-evidently fine to be homophobic, that is one who suspects those who 'clamor' for gay rights are suspect.

Anyway you are clearly homophobic, judging by your posts, particularly this one in which you say that since it took so long to happen it is self-evidently fine to be homophobic, that is one who suspects those who 'clamor' for gay rights are suspect.

This is exactly the kind of rhetoric that displays, not a commitment to civil rights, but a self-righteous bigotry that is only slightly less blatant than the crap spewed by the Westboro Baptist Church.

It is not ok to state historical facts, but you no compulsion at all in judging and condemning someone based on a few posts. Do you always consign your opponents to various dustbins to perpetuate your own sense of superiority?

And by the way I think same sex marriage only changed marriage the same way the Voting Rights Act and women's suffrage changed voting. The only major change is who gets to do it.

>202 Arctic-Stranger: I agree with your last line.

I do not feel superior. I haven't the power to consign, but in this sphere we may label at times.

Calling a homophobe a homophobe is not a condemnation to the homophobe.

The historic 'facts' are incomplete, for one thing there is an implication that homosexuality was never acceptable when we all know of places and times where it was quite fine. Whether marriage was at issue is hardly a significant point. A late evolution of a variation on a custom hardly makes that evolution right or wrong. It is okay to state historical facts, by all means. The one stated is not pertinent to the discussion, however, and it is indicative of a desperation, a need to judge the gay couple that would like to marry.

I wonder if I am a bigot. I certainly don't like bigotry. Does that make me a bigot?

I wonder if I am self-righteous. I think I am right, of course, but I don't feel self-righteous. Was the line you quoted mere rhetoric, or was it an argument you disagree with? Have you actually given any thought to the relevance of the 'historic fact'?

Oh, and do recall that you have read enough of my points to answer your own question, even though it is rather oddly put.

I do have a passion in regard to this issue that is derived from human contact; I know far too many people who have been hurt and far too many people who live with grace and beauty in the face of homophobic storms to quietly read tripe about gay people, and to quietly read veiled nasty posts that disregard the injury done in the quotidian to gay people by homophobic people.

>203 RickHarsch: This is exactly the kind of rhetoric that displays, not a commitment to civil rights, but a self-righteous bigotry that is only slightly less blatant than the crap spewed by the Westboro Baptist Church.

You've returned judgment for judgment there, Arctic. Perhaps when it comes to injustice we are all "bigots"? Ei, people who are "obstinately or intolerantly devoted to his or her own opinions and prejudices" (Merriam-Webster)

Thinking that you can see into someone's heart, and KNOW that they are homophobe is a blanket condemnation on anyone who disagrees with you. Instead of figuring out what their position is, and why, you resort to name calling. That is not an argument. That stops all arguments and all discussion. Which means you stop learning.

Your commitment to Gay People is not in question. I too know many gays and lesbians, and I know what some of them have been through.

But you don't show a commitment to one group of people by turning on another group. Hating homophobes does not change things for LGBT peoples. Dividing people up into neat categories by your own discretion does not do much for anyone.

>205 Arctic-Stranger: Nothing in your post applies at all to either of mine. I have no commitment to anyone or any group that is discussed here on LT.

Thinking I can 'see into someone's heart' and all that is an educated guess, of course, but I am above 97 per cent sure, so I go with it. That is hardly a blanket condemnation of anyone who disagrees with me. Instead of figuring out what my position is, and why, you suffer a collapse of reason, which means you stop learning. Again I ask you to think a bit more about what my argument is. I mention gay people and their travails to point out that I believe many here are slighting their experiences with surface rational arguments that strike me as reflexive. I suspect a great deal of, and many levels of, homophobia are on display here. Finally, if we support the dignification of a certain group, we naturally are agains (in your words 'turn on' the 'group' that hates them.

Oh, and I am not sure I HATE homophobes, but I may. The neat categories, I am afraid, are all yours.

Historical facts are gathered from a wide variety of sources, and often they are suspect as facts, but nonetheless I offer this source:

On the good ship Venus
By Christ you should have seen us
The figurehead was a whore in bed
Sucking a dead man's penis

The captain's name was Lugger
By Christ he was a bugger
He wasn't fit to shovel shit
From one ship to another

And the second mate was Andy
By Christ he had a dandy
Till they crushed his cock on a jagged rock
For cumming in the brandy

The third mate's name was Morgan
By God he was a gorgon
From half past eight he played till late
Upon the captain's organ

The captain's wife was Mabel
And by God was she able
To give the crew their daily screw
Upon the galley table

The captain's daughter Charlotte
Was born and bred a harlot
Her thighs at night were lily white
By morning they were scarlet

The cabin boy was Kipper
By Christ he was a nipper
He stuffed his ass with broken glass
And circumcised the skipper

The captain's lovely daughter
Liked swimming in the water
Delighted squeals came when some eels
Found her sexual quarters

The cook his name was Freeman
And he was a dirty demon
And he fed the crew on menstrual stew
And hymens fried in semen

And the ship's dog was called Rover
And we turned the poor thing over
And ground and ground that faithful hound
From Teneriff to Dover

When we reached our station
Through skillful navigation
The ship got sunk in a wave of spunk
From too much fornication

On the good ship Venus
By Christ you should have seen us
The figurehead was a whore in bed
Sucking a dead man's penis

207

?

I'm pretty sure my homophobia will come as a bit of surprise to my college advisor, who is married to his (male) partner in Massachusetts and whom I count as one of my closest friends. But there you go.

>203 RickHarsch: (Rick): "A late evolution of a variation on a custom hardly makes that evolution right or wrong. It is okay to state historical facts, by all means."

But isn't that precisely what I said? Quoting myself from post 200: "And as I said earlier: the fact that it does constitute a change to the definition of marriage is not necessarily a strike against gay marriage. There are plenty of reasons to support the change."

I find it interesting that Rick calls me homophobic for saying something he agrees with. Doesn't that make Rick homophobic, too?

Speaking as a gay person, fuck off with your "friendship" if you support discrimination based on sexual orientation. Is that clear? You fucking unconscionable DONKEYS.

>209 nathanielcampbell: I'm pretty sure my homophobia will come as a bit of surprise to my college advisor, who is married to his (male) partner in Massachusetts and whom I count as one of my closest friends. But there you go.

"Some of my best friends are....(fill in the blank)!" is not usually considered a justification for prejudice, internalized or overt.

None of us ever feel like we are bigots. We all have justifications for what we feel and what we think. The tricky part is coming to terms with the fact that others' perceptions of us may indeed have some justification.

And I was pretty sure that I had made it clear on multiple occasions that I SUPPORT the extension of all legal rights and benefits of marriage to gay couples. I believe I applauded the Supreme Court's decision on DOMA this summer.

But what we're really seeing here is that "bigot" is just a codeword for, "someone who doesn't agree with me to every last iota". The mere fact that I am a Christian seems to be enough for both Lola and Rick to declare me a bigot.

There's no defense against such irrational hatred.

212> I think it is other than irrational hatred. Yes, you have repeatedly stated that you support the extension of "legal rights and benefits" of marriage to same sex couples. But you appear to reject the extension of the word marriage to these unions, a designation to which only heterosexual couples are entitled. You have also argued at length that homosexuality is "disordered desire" and that it is "sinful/aberrant." For me, these dual positions call to mind the view of some American abolitionists, who opposed slavery yet did not believe in equality between the races and even hoped for the repatriation of former slaves (to Liberia).

I'm pretty sure my homophobia will come as a bit of surprise to my college advisor, who is married to his (male) partner in Massachusetts and whom I count as one of my closest friends. But there you go.

You might want to avoid that formulation in the future. Just a small bit of advice.

So the conclusion is: unless a person completely rejects any notion of traditional sexual ethics and denounces any concept that some sexual behaviors might, indeed, be problematic, they are to be considered a bigot.

The interesting thing is how the intolerance of homosexuality merely the suggestion that homosexual acts might be immoral is declared bigoted, yet the mighty intolerance shown here of Christians is righteousness itself.

Isn't this, indeed, the entire point of the parallel thread that Arctic started -- Why I Don't Automatically Call Anyone Opposed to Same Sex Marriage "Homophobic" (even if they are)?

If bigotry is so widely defined to include any view that you personally find disagreeable or intolerant, then it simultaneously looses any meaningful force and shuts down any reasonable attempt to persuade the "bigot" to leave off their views.

New York City Mayor Michael Bloomberg is a bigot against people who like to drink soda -- indeed, he's used the power of the government to forbid them from buying sodas in sizes larger than 16 oz. Such bigotry! Such government-sanctioned intolerance and oppression! He's a sodaphobe and you know it! And anyone who agrees with him is a bigot, the scum of the earth!

(See how ridiculous it sounds?)

>216 nathanielcampbell: The interesting thing is how the intolerance of homosexuality is declared bigoted, yet the equal intolerance shown here of Christians is righteousness itself.

The conflict, Nathan, is in the fact that an apparently key doctrine of Christianity is now perceived as homophobic. I understand that is an uncomfortable situation to deal with, because there isn't much in the way of gray area in which to retreat. But that's what's going on.

ETA:

You changed your phrasing while I was responding. But from my perspective there is no qualitative difference between "intolerance of homosexuality" and "merely the suggestion that homosexual acts might be immoral."

And the fact that you do see a difference suggests to me that there is a fundamental disconnect between how I see the world (sex in not immoral in itself) and how you do (some sex is immoral just by itself).

And that is, from my point of view, a prejudicial position.

216> You confuse (or inflate) reasoned criticism for intolerance. No one is advocating that you should be stripped of rights based on your beliefs: that would be intolerant. No one is questioning your sexuality: that would be intolerant.

I pointed to an analogy between your stated views on homosexuality and those of the abolitionists vis-a-vis slavery. JW gave you a gentle warning about how such a statement ("I'm pretty sure my homophobia will come as a bit of surprise to my college advisor, who is married to his (male) partner in Massachusetts and whom I count as one of my closest friends") might come off (negatively). If you consider this to be intolerance, then I can only say you have no idea about what intolerance is.

The real problem, however, in calling me a bigot and homophobe is that it makes it that much more difficult to identify and call out real bigotry and real homophobia.

If simply being a Christian and making the argument that, from a Christian perspective, marriage is defined as being between a man and a woman -- while simultaneously arguing that, from that same Christian perspective, gays and lesbians (and indeed all human beings) are equally worthy of all the dignity and respect that we owe to each other precisely because we are human; that such a specifically Christian perspective on marriage ought not to bind the state, that the state ought to provide the legal benefits of civil marriage to all committed couples, that such a move would strengthen the social fabric, that we ought to remove discrimination against gays and lesbians from our laws and from our social fabric: if such a stance is considered bigotry and homophobia, then the terms become meaningless.

They become meaningless to deal with real bigotry and homphobia, which releases itself in angry violence against gays and lesbians, in the real denial of their humanity.

>218 theoria:: "reasoned criticism "

Declaring me "bigoted" and "homophobic" is not reasonable.

For example, Rick in 201: "Anyway you are clearly homophobic, judging by your posts, particularly this one in which you say that since it took so long to happen it is self-evidently fine to be homophobic, that is one who suspects those who 'clamor' for gay rights are suspect."

The problem, of course, is that I never made the argument that the fact that gay marriage is a very new phenomenon makes it "fine to be homophobic". Indeed, I specifically refuted that argument by pointing out that recognizing the extraordinary socio-cultural shift of the last two decades is not itself an argument against the shift: rather, it is simply the recognition of what's actually going on.

But Rick seems to think that anybody who actually recognizes the historical fact that gay marriage wasn't even a thinkable socio-cultural concept until very, very recently is ipso facto homophobic.

Does that seem reasonable to you?

>219 nathanielcampbell: They become meaningless to deal with real bigotry and homphobia, which releases itself in angry violence against gays and lesbians, in the real denial of their humanity.

Actually, they just no longer mean what you want them to mean. Homophobia is not limited to "angry violence" -- It is a systematic repression of an entire group of people.

220> Do you believe homosexuality is sinful/aberrant? Do you believe same-sex unions should be called marriages?

Systemic repression requires power.

Bigotry does not.

It's not about you, Nathaniel. It's not about you, or the photographer, and your precious biblical superstitions. You're not the only kind of Christian either. Plenty of Christians would look askance, to put it mildly, at what you are proposing.

Arguing that this business ought to have the right to discriminate against gays is arguing for discrimination plain and simple. If her, why not others? Why not the bakers, butchers, undertakers, tailors, car repairmen, doctors, why the hell not EVERYONE? Our dear leader thinks even that it would be okay to discriminate against him as a Catholic--well, then, why not Jews, Hindus, Zoroastrians, the lot?

I have a notion that that's not the direction to go (back) in.

Rather, discrimination based on sexual orientation has increasingly come to be seen for what it is--a breach of human rights, like racism and sexism, because it is becoming increasingly accepted (recognised) that race, sex, sexual orientation are some basic, core elements of identity we have no power to change. Striking at these elements strikes at our humanity.

>220 nathanielcampbell:: "It is a systematic repression of an entire group of people."

And what evidence do you have to indicate that I systematicallly repress gays and lesbians? Have I ever argued that you should have fewer legal or socio-economic or civil rights and opportunities because you are gay?

>221 southernbooklady:: "Do you believe homosexuality is sinful/aberrant? Do you believe same-sex unions should be called marriages?"

I believe that homosexual acts have traditionally been understood to be sinful / aberrant. Furthermore, I believe that in the religious context of Christianity (recall that I am by profession a historical theologian of Christianity), same-sex unions should not be called marriages.

BUT, as I have made clear multiple times before: I think that Christianity needs to reevaluate its theology of sexuality, to dig deeper into the place of sexuality in what it means to be a whole human person, in light of new perspectives on things like sexual identity and sexual orientation. This is a process, however, that will take time. The theology isn't there yet. We haven't figured out, as a Church, the worldwide body of Christ, how to articulate these truths that we're still trying to wrap our heads around.

In the specific context of marriage, I'm pretty confident that the possibility of procreation and the complementarity of man and woman are inherent components of the Christian understanding of marriage, to the extent that the theology will not permit the notion of sacramental marriage to be extended to gay couples. HOWEVER, I have also argued that some of that theology needs to be reconsidered in light of things like fertility treatments and longer lifespans, in which more and more people are finding themselves getting married after menopause. Again, the theology isn't complete on this and needs more work, and that will take time -- time that those who denounce Christianity as bigoted and homophobic are not willing to grant.* Furthemore, I have argued that the Church needs to explore ways to recognize and sacralize the committed life bond of gay couples, though again, that will likely be found in a canonical structure parallel but not identical to marriage.

Finally, I do not believe that the Christian theological wrangling I've just described should be legally binding on the state. I have time and again argued that the state needs to get out of the strictly religious marriage business, leaving the spiritual side of it to institutions of religion, and making its business that which it ought to be: the secular structure of legal and civil partnerships.

-----------------
*For folks who claim that they are defending the basic human nature of gays and lesbians, they sure are quick to ignore the basic fact of human nature that systemic change doesn't happen overnight.

As has been pointed out before, President Obama didn't support gay marriage when he was first elected in 2008. Does that mean that he was homophobic?

>225 nathanielcampbell: And what evidence do you have to indicate that I systematicallly repress gays and lesbians? Have I ever argued that you should have fewer legal or socio-economic or civil rights and opportunities because you are gay?

I have made an explicit point more than once that a person who is willing to listen and have a dialog is not, as a rule, bigoted in the classic sense. And I've explicitly included your willingness to have a conversation as an example.

Bruce is correct that repression implies power, so perhaps it would be better to say that homophobia is a world view that regards homosexuals as separate, other, and by extension "less than." And in that sense I, a gay woman, hear the tones of it, however unintentional, in statements such as

"I believe that homosexual acts have traditionally been understood to be sinful / aberrant. Furthermore, I believe that in the religious context of Christianity (recall that I am by profession a historical theologian of Christianity), same-sex unions should not be called marriages."

Because we are not having a theological argument here about the nature of homosexuality. We're having a discussion about civil rights. So the distancing you allow yourself in the above statement ("traditionally be understood to be sinful/aberrant") sounds a little like you are masking a personal opinion under a statement of historical fact. It sounds, in short, like a bit of a dodge.

As for whether you have argued that gay people should have fewer socio-economic or legal rights, you've often said that you support such equality. But your idea of what's "equal" is not always clear to me. I'm not positive you support adoption by gay couples, for example. I'm not positive that you support gay people getting "married" at the registrar's office, although I'm certain you support the right of heterosexual couples to do so. It's my impression you want a different name for the union of gay people. I'm also not positive you don't think gay sex is intrinsically immoral or "disordered."

And I recognize that much of this is bound up with your Christianity-informed idea of what it is to be married or to be moral. But it's a barrier between thee and me, one that makes you defensive when I point it out, but one I nevertheless feel I need to point out, since you start from some assumptions about morality that are at the least problematic and at the worst actually hostile to my existence as a gay woman.

>226 southernbooklady:: "Because we are not having a theological argument here about the nature of homosexuality. We're having a discussion about civil rights."

And that's why I've been careful to point out that I do not believe that whatever theological baggage my faith is carrying and must sort out about homosexuality should affect the legal and civil rights of gays and lesbians.

I will also say again that I'm not sure which side to come down on in this particular case (the photographer), as it involves a confluence of rights that are in apparent conflict, and I don't see an easy wasy out of the conflict. I see good arguments for both sides, for supporting the rights of both sides.

When I have waded in on this specific case, it's been to point out flaws in some of the arguments being made, e.g. in regards to the fact that the newspaper ad policies clearly indicate a case where freedom of expression and the press trumps nondiscrimination laws, thus establishing a precedent in which the rights of the newspaper were considered to take precedent over the rights of the group whose ad the paper refuses.

Or, I've pointed out that, by choosing to sue, the couple forced the court into having to decide between two sets of civil rights that came into tension and conflict. It may just be my own perspective, but I find that allowing tensions and complexities to coexist rather than forcing them into arbitrary resolution often makes for a more nuanced world.

But I'm still not ready to say that the court was wrong to rule for the couple and against the photographer, nor am I ready to say that it was right.

>226 southernbooklady:: "But it's a barrier between thee and me, one that makes you defensive when I point it out, but one I nevertheless feel I need to point out, since you start from some assumptions about morality that are at the least problematic and at the worst actually hostile to my existence as a gay woman."

On that much, we can be agreed -- although we should recognize that both of us gets defensive. :-)

The problem here isn't so much that we disagree and that such a disgreement does create a barrier; it's that some in this thread (not you) have declared me homophobic and bigoted because of the disagreement -- and that category error has gone unrefuted by all but me.

That is: you (SBL) and I know and recognize the barrier and the disagreement, and we often work to understand each other better despite it. But it does hurt the bond of mutual respect when you don't refute others when they ignore the complexity of the disagreement and start throwing around detrimental lables like "homophobic" and "bigoted".

The interesting thing would be to see if Rick or Lola would turn on you if you did refute the labels. Would you be a sell-out if you took the time to recognize that not everybody who has religious qualms about homosexuality is ipso facto a homophobe or a bigot?

Is the sacrifice of nuance and complexity necessary in the cause of gay rights?

ETA: That is to say: there is a real difference between me and the men who killed Matthew Shepherd. But calling me a "homophobic bigot" elides those differences: it is a refusal to recognize that difference, and it shuts down the possibility of growing together, of mutual understanding, that must be at the center of any real change of heart.

Oh, look, now it IS all about Nathaniel.

#228

Just shut up about me. I didn't give you any labels and frankly don't care enough to bother.

>229 LolaWalser:: "I didn't give you any labels and frankly don't care enough to bother."

In post 210 you wrote, in response to me, "Speaking as a gay person, fuck off with your "friendship" if you support discrimination based on sexual orientation. Is that clear? You fucking unconscionable DONKEYS."

So no: you didn't call me a homophobic bigot. You called me a "fucking unconscionable DONKEY."

Well, this discussion has turned out nicely!

The last few posts are exactly the reason why I find labels so damaging. Lola is gay, but she is much more than that. To confine her within that simple label is a travesty. To think I know anything about her merely because I know that is hubris on my part. Nathaniel is Christian (as am I). To assume you know him and what he thinks and how he feels merely because of that is an equal travesty.

The use of labels in this thread just shows how silly it is to base much on them. Once you hurl an epitaph --homophobe, Donkey, whatever, you have pretty much said, "I am hereby writing you off. Rather than let you be you, I am saying that you are not like me, instead you are ________, and I don't have to take you seriously anymore."

Ok, so that does get done all the time. I do it to Republicans on a regular basis. And on here more times than I care to admit.

But it ain't like it works, or is ever going to work.

#230

Yes, and I might again. That was an insult, not a label.

Now, can we stop talking about precious you?

>228 nathanielcampbell: But it does hurt the bond of mutual respect when you don't refute others when they ignore the complexity of the disagreement and start throwing around detrimental lables like "homophobic" and "bigoted".

What I have done, Nathan, is taken some trouble to explain why, in some specificity, people might think those labels apply to your position.

What you have not done is acknowledge that you understand that point of view.

Back to the simple, then: why get so het up ifn yer so goddamn fairminded?

Actually I don't believe anyone is really fairminded. We all have prejudices and bigotry that arises from our experiences and background.

But we can try to overcome it, even if we are not always successful.

Actually I don't believe anyone is really fairminded. We all have prejudices and bigotry

Unfortunately, this frequently heard refrain is the means by which bigots give themselves comfort, insisting they are just like everyone else.

That is why the second sentence I wrote is so important.

222

"Do you believe homosexuality is sinful/aberrant? Do you believe same-sex unions should be called marriages?"

I realise you weren't addressing me specifically, but I'd like to answer your questions anyway.

1. No
2. No

But to explain 2. further : I actually don't have a high opinion of heterosexual marriage anyway - I think it's just the enshrining of the animal instinct to reproduce, the genetic imperative. As a result, many (obviously, not all!) such marriages produce children and then fail as the couple have little in common anymore. I think that what I call "true" relationships are a much nobler thing, and can occur between people of the opposite or same sex. It doesn't matter. Sex may, or may not, be a factor in such relationships. But to me, the argument about "marriage" (animalistic) is not relevant, and therefore the question of whether same sex couples should be 'blessed' with the name of that institution is also not relevant. In fact, gay couples - being not subject to the animal genetic imperative - are on a surer footing right from the off.

If you don't care about marriage as institution, then surely it ought to be indifferent to you whether gays who do care get to call their marriages marriages, just like their straight counterparts do. So, a "not applicable" or "no opinion" or some such would seem to be a more logical answer than a flat "no" to #2.

Without wishing to enter into a discussion about why people marry, what "animalism" might have to do with it and whether "animalism" is something less "noble" etc.--a gay couple may not produce offspring directly combining their own DNA, but they may still form a family with children. It is possible even that their children may be genetically related to both. For instance, a couple of lesbian friends of mine, married, have each borne children conceived with sperm donated by each other's family members.

>233 southernbooklady:: "What you have not done is acknowledge that you understand that point of view."

I wish--really--that I could acknowledge it, but I'm having difficulty doing so because it fails to distinguish between all of the many, many statements I have made supporting civil rights for gays, castigating those who would exclude someone from the rights of citizenship based on sexual orientation, and castigating also those who would deny the humanity and dignity of gays because they are gay, on the one hand; and the actions of the men who killed Matthew Shepherd, for example, on the other.

If both of those points of view are "homophobic", then what is there to understand in the term? It becomes meaningless.

Explicit support for the civil rights of gays is, apparently, not enough. To suggest that my religion reevaluate its views on sexuality is also, apparently, not enough.

The only way, it seems, that I can escape the label, the only way I can apparently stop being homophobic, is to completely repudiate my religion, to give up on it, to stop trying to find within it a way to make the world better, but to simply reject it altogether.

Why is that? Why is there no room in a liberal society for people of faith? Why is the only way forward in our liberal society a way that rejects religion altogether?

239

"For instance, a couple of lesbian friends of mine, married, have each borne children conceived with sperm donated by each other's family members."

But this is my point. Your friends obviously decided they wanted to have children, and it was a perfectly natural expression of their love. But you're not telling me that their 'genetic imperative to reproduce' caused their initial attraction to each other? On the other hand, if you say it was, then I must believe you. Unless you do, I stand by my own (privately held and personal) opinion that gay couples - almost by definition - tend to have a deeper sense of relationship, as the genetic imperative doesn't function in its usual animal modality.

There are massive generalisations there, I realise, but that doesn't negate my own feeling.

#240: Why is that? Why is there no room in a liberal society for people of faith?

There is – both creed and sexual orientation are protected classes in human rights laws including the NM HRA , and thus must be publicly accommodated. I happen to agree with the decision in this case. Perhaps we’d be better off having this discussion in a forum called, “ Let’s Talk Law” and leave the accusations and counter-accusations of bigotry out of it?

#241

You seem to be making so many assumptions about both hetero- and homosexuals, and biology, that I don't know where to begin untangling them.

So as not to go on endlessly, I'll just note that my friends, for instance, both knew beforehand (before they started dating) that they wanted to raise children some day. I'm certain they wouldn't have married if they hadn't agreed on that. Another friend broke off a ten year long relationship because her girlfriend wanted children and she didn't. Children can be an important issue for homosexuals for all kind of reasons.

>236 theoria: Quite so.
>237 Arctic-Stranger: Your second sentence is equally applicable to the point made in 236. Besides, please speak for yourself.

It seems to me that photography is expressive

It can be. But I would argue that wedding photography is somewhat less than that. Most wedding photographers use standard patterns, and more or less do their wedding photography by rote. Some of them are very good at that rote, but let's not pretend that photographing a wedding is somehow the unfettered expression of the photographer.

No, but in choosing to sue the photographer, the gay couple forced the court to decide between the two.

And in choosing to sue Denny's black litigants forced the court to decide between the freedom of Denny's to deny service to people and the freedom of black people to enjoy their food.

Homophobic asshats can cry me a river.

>90 southernbooklady: and others

(and maybe i should wait to reply as this is as far as i've read so far - you all were busy while i was on vacation. and i suspect this will be misunderstood by some...)

no one (so far) has mentioned this but i'm curious as this is something that's come up near my community here (portland, or). i'm not sure about this and haven't fleshed it out fully, but doesn't this photographer, as a business person, have the right to refuse services to anyone she wants to? for whatever bigoted reason? the law that theoria quotes says a "public accommodation" and maybe i'm misunderstanding that, but shouldn't a private business that exchanges money for a service (not a good) be able to say yes or no to anyone?

(near portland in february a bakery refused to make a cake for a gay wedding. this seems, while discriminatory and pretty abhorrent on their part, like they should, as a private business, maybe be able to do that? the case was still under investigation when as of yesterday, gratifyingly to me, they were forced to close because - as mentioned by someone (theoria?) above - the market spoke and their discriminatory practices affected their business.)

serving someone as in a restaurant or in a shop seems different to me than contracting services with someone to create something for you.

>101 southernbooklady:

yep, i should have kept reading. this more or less addresses my earlier post, not that i'm through fleshing it out. thanks for the haircut example, sbl.

>247 overlycriticalelisa: Title II of the 1964 Civil Right Act outlawed discrimination in "public accommodations" but exempted "private" ones. "Public" in this sense is not defined in terms of a park or a space, but in terms of whether or not anyone can avail themselves of the service offered.

Private clubs were exempted, which basically meant any group or club that was only open to a specific member list. If the photographer created a "subscription" list of members and would only work for people on that list, she would not be a public accommodation, but a private one.

If the photographer was incorporated in the state of New Mexico as a business, rather than a private club, then she was, by definition, a public accommodation.

At least, that's how I understand it.

And you are correct that in many places a business does not have to serve a customer, and does not have to give a reason for refusing service. But if it is demonstrated that their refusal shows a consistent pattern of discrimination then they would be breaking the anti-discrimination laws and could be held accountable.

>249 southernbooklady:

i think that, in part, i was conflating two threads here (i had previously been reading the one that was all about justice and if we can define that somehow). this is more of a technical, judicial issue, but one that i was bringing up more with justice than law in mind. (not that i think it's just to discriminate, mind you.)

but: it seems to me that when two parties are negotiating a contract for a service, that at any time prior to an agreement being made, either party has the right to back out, to say no, to not agree to either accept or produce the service. if i meet with someone for the possibility of hiring them for a service, there is not, in my view, a guarantee that if i decide i would like their product that they will take my business. maybe they are out of town the day i need them, maybe they don't like me and would prefer to keep their calendar open to work with someone they enjoy more, maybe my vision of what i want is one they don't think they could produce to my satisfaction, maybe ...

#250: it seems to me that when two parties are negotiating a contract for a service {...} either party has the right to back out,

That's what the Civil Rights Acts were designed to stop; they were designed to prevent people from refusing to engage in business for reasons inimical to society. No more should people have to walk into a shop and worry they'll be rejected because of their race, gender, religion, or sexual orientation.

But this case has nothing to do with interpretation of Federal law.

No, but it does have to do with the interpretation of a state anti-discrimination law.

I'm reminded of the wording of the Equal Rights Amendment

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification

which was derailed by arguments that it would lead to unisex restrooms. (Jane Mansbridge, How We Lost the ERA).

>251 prosfilaes:

walking into a shop to purchase a good, yes, this makes sense to me and is so clearly how it should be. it makes sense to me in terms of contractual service as well, it just also makes sense that there would be wiggle room when it's about two parties negotiating a service. not room for bigotry, but for myriad other reasons that people choose to do or not do business with people. obviously this would be misused for bigotry in cases like in the op. and probably often is, just not so honestly.

i don't know, i just think it's a little more complicated. or maybe it's not at all, from a legal perspective and from a "what's right" perspective.

>254 theoria:: There's a great scene in an episode from the second season of The West Wing in which Sam Seaborne and (Republican) associate White House counsel Ainsley Hayes discuss the ERA. (You can watch it on YouTube: http://www.youtube.com/watch?v=NXPLirJRGDQ )

Her argument against it is that it's redundant: the Fourteenth Amendment covers women just as much as it covers men in ensuring that no citizen can be denied due process.

Furthermore, she finds it humiliating: "A new amendment we vote on declaring that I am equal under the law to a man? I am mortified to discover there is reason to believe I wasn't before! I am a citizen of this country -- I am not a special subset in need of your protection. I do not have to have my rights handed down to me by a bunch of old white men. The same article 14 that protects you protects me, and I went to law school just to make sure."

>256 nathanielcampbell:Her argument against it is that it's redundant

The usual argument against the passage of anti-discrimination laws is that they are redundant: if everybody is equal under the law, then everybody is equal under the law.

Unfortunately, in the real world, people often need to have things spelled out for them.

256> Yet one of the arguments against the ERA was "unisex restrooms!" The fear that extending equality rights will result in something horrendous also underpins the position against same-sex marriage.

#255: not room for bigotry, but for myriad other reasons that people choose to do or not do business with people. obviously this would be misused for bigotry in cases like in the op. and probably often is, just not so honestly.

I don't understand; the only thing this law prohibits is bigotry. This law is not a problem if you don't believe there should be room for bigotry.

If the ERA were redundant in practice, then there wouldn't have been a big fuss against it. If a bunch of people are pushing for it, and a bunch of people are pushing against, I think it's safe to say that most people don't actually think it's redundant.

Yeah. One could just as easily argue that marriage equality is redundant, etc.

>261 Jesse_wiedinmyer:: "One could just as easily argue that marriage equality is redundant, etc."

Except that the federal government didn't have a law on the books for two decades (analogous to DOMA) saying that woman didn't have equal rights to men.

Gee, why would they have had to pass such a law as DOMA? Wouldn't such a law be unnecessary?

Oof. Reflexive thought is a motherfucker.

DOMA was an effort to trump "interstate comity."

Constitution Article IV
Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

>263 Jesse_wiedinmyer:: Ah -- I hadn't understood the analogy you were trying to draw. When you said that the same argument could be made that "marriage equality is redundant", I thought you meant that the Supreme Court striking down DOMA would be equivalent to passing the ERA.

Anyway, I think I actually agree with you then -- I was long ago convinced that DOMA was unconstitutional, not because of equal rights to due process, but because the definition of marriage is not among the enumerated powers of things Congress can make laws on.

>259 prosfilaes:

no, i see how what i'm saying could be interpreted this way, but it's not what i mean. i guess i just don't see how the law can say - to someone providing a service that requires a contractual agreement and a working relationship, not a good - you have to say yes to anyone and everyone who wishes to engage your services.

my neighbors are wedding photographers. they only do 2 weddings a month (it's a side gig for them) but get many more requests. they make decisions about which couples to shoot for and which they don't accept. they shoot same-sex weddings and people of color so from what i can tell (and what i know of them) they are using other, non-bigoted reasons for which clients they accept and turn down. but they turn people down. every (i would think) successful business turns down potential clients at some point.

believe me, i am not endorsing discrimination, i just don't see how a law can obligate a business to accept all clients. i mean, is the only "problem" that these place are honest about why they are not accepting these clients?

>266 overlycriticalelisa: i just don't see how a law can obligate a business to accept all clients

That's a misinterpretation of the law. It does not obligate a business to accept all clients, it only specifies certain things which are not grounds for refusing clients.

so (as stated above in this thread) they can refuse anyone they want as long as they don't (if they're discriminating) say the real reason they're refusing.

Just so. Discrimination is not a valid reason to refuse service.

no, certainly not. i think the sticking point for me was always just that the business should be able to refuse service, just not for discriminatory reasons.

268> In the absence of a sign on the door saying "we won't serve you because you are one of these types of persons," one could expect that if a pattern of discriminatory behavior is detected, it would violate the NM statute. However, it would require evidence drawn from more than a single case (as per the topic in this thread). Think of bias/discrimination in the real estate and banking industries towards ethnic and racial minorities that is exposed through undercover investigations.

i think it's a lot easier to prove when you're talking about the blatant "no, we don't have any apartments available" moments apart from "sure, let me show you what we've got" based on race issues you're referencing.

or maybe not, if they did an investigation in the same way - can you bake me a cake for this date for my same sex wedding? no, too busy, ok. and then yes for a straight couple to come in moments later for the same date.

i feel like i've come across as an asshole in this thread, and you all don't know me yet - i really don't endorse discrimination.

Apparently this woman must have said she would not do the wedding BECAUSE they were a same sex couple. I think, if a photographer has limited time (and most weddings are on weekends, which leaves a busy photographer with only two days to work with) and refuses a wedding because a) they are already obligated, b) they want the weekend off, or c) their assistant is not available, or something like that--in other words, any reason they could give to ANY couple who asked for their services--they would certainly be within their rights.

This woman was just honest. At least we can say that much for her.

268: Basically, the law says you can turn someone down for a good reason, or for no reason, but not for a bad reason - in this case the bad reason being defined as the one that is impermissibly discriminatory.

i think i was feeling like they couldn't turn someone down for any reason, not just discriminatory ones.

>274 StormRaven: - this sounds like it's exactly as it should be. thanks.

Apparently this woman must have said she would not do the wedding BECAUSE they were a same sex couple. I think, if a photographer has limited time (and most weddings are on weekends, which leaves a busy photographer with only two days to work with) and refuses a wedding because a) they are already obligated, b) they want the weekend off, or c) their assistant is not available, or something like that--in other words, any reason they could give to ANY couple who asked for their services--they would certainly be within their rights.

This woman was just honest. At least we can say that much for her.

Probably not just honest, but proud of what a principled stand she was making, to boot...

I did not know that you knew this woman personally.

I read Jesse's 'probably' as indicating she didn't know this woman.

Offer me a counter-motivation, brother...

I read Jesse's 'probably' as indicating she didn't know this woman.

Arctic knows that... I think he believes himself to be making a damning cut, there.

No. You made the statement that she reveled in her biases. I will make the statement that you are reveling in yours. You, in fact, have no idea what is on this woman's mind, unless you do know her. Yet you have no problem saying what is in her mind. Maybe she was proud of her stance. Maybe she is sorry. Who knows, but you have no qualms about formulating a hypothesis about her motivations.

I think what she did was wrong, but it is no less wrong to make assumptions about other areas of her morality based on this one action. It is very possible that she made a stink about, hoping that she could make a stance for what she believed. It is also possible that she wishes all this could go away.

You made the statement that she reveled in her biases

No. I didn't. I made the statement that she viewed her refusal to serve as a principled stand.

In fact, I doubt she views it as much of a "bias" at all. She probably runs around telling people that she's just as tolerant and doesn't have a homophobic bone in her body, but...

I believe you used the word "proud" which is a sin for Christians, assuming this woman even is a Christian. And as to what she tells people...sigh.

Yes, you undoubtedly know.

Again, offer me the counter-motivation...

What motivates someone to decline business based on the sexual orientation of the customer?

And to not just do that, but to be understood to be doing that...?

Lay it out for me, brother...

#273: This woman was just honest. At least we can say that much for her.

I don't know. I'm sitting between my painfully legalistic side and my social good side here. My legalistic side encourages truthfulness and honesty at all points.

But it's a social good that people lie about things like this, in many ways. It shows that they understand their behavior is not acceptable and it also smooths the social change. Nathanielcampbell wishes that this wouldn't have been done through a court case; that is the well-established means of avoiding legal action. It does make these people harder to detect, but I'm not sure in a world that we had to fight every battle that it would move any quicker.

Most importantly, a lie means the shop owner acknowledges the fundamental principle behind the law, that we don't accept this behavior.

#273: Apparently this woman must have said she would not do the wedding BECAUSE they were a same sex couple

http://www.aclu.org/lgbt-rights/elane-photography-llc-v-vanessa-willock-opinion is a copy of the opinion; it goes into details about what happened. In this case "Huguenin responded to Willock that Elane Photography photographed only “traditional weddings.” Willock emailed back and asked, “Are you saying that your company does not offer your photography services to same-sex couples?” Huguenin responded, “Yes, you are correct in saying we do
not photograph same-sex weddings,” and thanked Willock for her interest."

1) she is homophobic. Nothing to do with religion (and polls show a very large number of people who oppose same sex marriage do NOT do so because of religious conviction.)
2) She is a Muslim, Jew, or Christian, and feels this violates her faith as she understands it. She is proud of that, and wanted to make a federal case of it.
3) She is African American. (The African American community has less support for same sex marriage that other ethnic groups.)
4) One of the participants was once a lover of hers.
5) She was busy that weekend, and stupidly said, to get rid of them, that she does not do same-sex weddings, which she later regretted.
6) She knew one of the people and really, really did not want to work with them, and used the same-sex wedding card, or made a judgment about same-sex wedding based on her dislike of this person.
7) She is Muslim, Christian or Jewish and was torn between doing what she felt in her heart and what she sincerely believes her scriptures teaches. With great regret she chose to remain true to what she believes is the teaching of her scripture.

None of the above reasons exempts her from the law.

#284: assuming this woman even is a Christian.

Why would you assume? If you have a question, avail yourself of the information. Section 83 of the court case says "As devout, practicing Christians, they believe, as a matter of faith, that certain commands of the Bible are not left open to secular interpretation;"; I'm sure that information could be found elsewhere.

I believe you used the word "proud" which is a sin for Christians,

If taken in its most common meaning, pride must be the most common sin for Christians, and the one they most frequently and loudly reveal in. I think that's the one of the seven sins that non-Christians tend to dismiss the most; when Crowley tried to make them into good things, IMO they all seemed contrived but that one.

Actually we have turned all of the seven deadly sins into virtue, with the exception of sloth.

#290: The case is very clear about this. Had it been anything but same-sex wedding, she would have taken the board hearing--where the victorious plaintiffs didn't even take lawyer's fees--and not pushed it into a case. In the words of their lawyer, “believed that creating photographs telling the story of that event {a same-sex wedding} would express a message contrary to their sincerely held beliefs, and that doing so would disobey God.”

Mind you, the discussion we're having here is not even whether or not the woman did such a thing. The discussion we're having is whether or not she was within her rights to do so...

Obviously she was just overbooked and blurted out the first thing that came to mind, though.

Why would a business refuse (legal) business from anyone, for any reason? Especially a small business owner, who is hardly rolling in money?

And yet, it happened (and continues to happen) all the time. Fast food places, real-estate agents, photographers, an endless list of businesses who refused to take money because the customer was black. Or asian. Or mexican. Or jewish. Or catholic. Or gay.

But it's useless to speculate why any individual might exhibit such tendencies.

#274

And the problem with this is that in encourages people to lie to each other. In fact, it imposes heavy penalties if they DON'T lie.

I think we all agree she was not within her rights. And I have not read the opinion but I do appreciate the salient parts, Prosfilaes. Thanks!

As to pride:

If I had only one sermon to preach it would be a sermon against pride.
Gilbert K. Chesterton

Humility and knowledge in poor clothes excel pride and ignorance in costly attire.
William Penn

The God of this world is riches, pleasure and pride.
Martin Luther

Through pride we are ever deceiving ourselves. But deep down below the surface of the average conscience a still, small voice says to us, something is out of tune.
Carl Jung

Anger is the enemy of non-violence and pride is a monster that swallows it up.
Mahatma Gandhi

>289 prosfilaes: But it's a social good that people lie about things like this, in many ways. It shows that they understand their behavior is not acceptable and it also smooths the social change. Nathanielcampbell wishes that this wouldn't have been done through a court case; that is the well-established means of avoiding legal action. It does make these people harder to detect, but I'm not sure in a world that we had to fight every battle that it would move any quicker.

Most importantly, a lie means the shop owner acknowledges the fundamental principle behind the law, that we don't accept this behavior.

It's a different take on the phrase "in the closet," isn't it?

I don' think lying about this is a good thing at all. It reeks of "But that apartment is already taken. Sorry."

Here's a transcript of the initial request for service and response. It was carried out by email.
------------
We are researching potential photographers for our commitment ceremony on September 15, 2007 in Taos, NM.

This is a same-gender ceremony. If you are open to helping us celebrate our day we’d like to receive pricing information.

Thanks
----------------

Hello Vanessa,
As a company, we photograph traditional weddings, engagements, seniors, and several other things such as political photographs and singer’s portfolios.
-Elaine-
-----------------

#296: And the problem with this is that in encourages people to lie to each other. In fact, it imposes heavy penalties if they DON'T lie.

And The Illustrated Guide to the Law had a section that basically said the correct answer if you run into a checkpoint and are hauling marijuana is "Hello, officer. Nope, no drugs or alcohol. You have a nice day too."

#299: I don' think lying about this is a good thing at all. It reeks of "But that apartment is already taken. Sorry."

You've argued that it's important the photographer is into it; if she can't legally say "I don't do same-sex marriages", and can't lie, should she go and produce a lousy product?

"That apartment is already taken" is a problem. {... I've got more to say here, but I'm running out the door.}

"That apartment is already taken" is a problem, but particularly when these laws came into existence, people were going to evade the housing laws. If everytime it came up, you forced it to literally be a federal case, I think at best you'd make the law something that prosecutors weren't interested in dealing with. At worst, you'd have a continuing force against the law that could eventually build up to blunt it or overturn it.

So long as people lie, there's no visible group of businessmen against these laws. A lying businessman can't even join a Conservative Citizens Council or the like, because he can't take the scrutiny. Instead of the across-the-board honest bigotry, you're lying to the customers and putting yourself in a situation where an employee or ex-employee can turn you in as a clear law breaker. If the breaking of these laws is under the table instead of a widely understood and accepted thing, then everyone involved gets a little shadier, has to justify their actions to themselves more and gets to justify their actions to others less. They're no longer principled people, they're sleazy underhanded liars. We can't stop them, but we can make it clear that society doesn't consider it legitimate.

nathanielcampbell said "other than I think it would have been more respectful of everybody's liberty if they gay couple had just sought a different photographer rather than suing in court -- that is, by suing, they forced the court to have to choose between violating the rights of one side or violating the rights of the other side". I guess I'm arguing something similar, but instead of forcing the gay couple to back off, the photographer has to lie. You can have your liberty to do a lot of things society disapproves of enough to outlaw, but the cost is social legitimacy ... and when that's not the cost, like with Prohibition and increasingly widely circles marijuana, your law is in trouble anyway.

(I certainly don't propose that this is the answer. But I think it's part of a very real answer.)

The funny thing is same sex marriage is not a right in New Mexico currently. (Nor is it prohibited. I guess it is up to municipalities.)

The photographer was being sued for something the state government itself did not provide. (I hear that New Mexico may clarify their stance on same sex marriage soon.)

see post #127

#262: The federal government has had laws on the books forever declaring the inequality of women. Women in combat, to pick one. Selective service is still required of males only.

True, but the ERA would have affected large portions of the lives of more than half the population. The overturn of DOMA allowed one action--marriage.

Here's a look at the issue of freedom of expression from another state, and another angle:

http://thinkprogress.org/lgbt/2013/09/09/2588241/texas-newspaper-refused-publish...

Since the overturn of DOMA, and since the IRS now recognizes any legal wedding, I don't see how the newspaper can possible turn these ads away. However I would bet that neither Texas nor Arkansas has a non-discrimination policy that covers sexual orientation.

If they did, should the newspaper be compelled by the state to publish a wedding announcement?

#307

The paper is claiming that since state law doesn't require it, they don't have to do it. Unclear if the couple will pursue the matter in Federal court...

I found a line in one of the other articles evocative: “sacrificed to the gods of the gay lobby"

When you're born gay, you're also born pagan?

Didn't we already go over this upthread? Newspapers have an established right to refuse any advertising they wish, under free press protections.

Actually newspapers are required to publish certain public notices, like name changes. Weddings could be added.

"When a state allows gay people to get married, nobody really loses (unless they’re truly crazy). But when a state bans private discrimination against gay people, there’s always a losing side—the homophobes." http://www.slate.com/blogs/outward/2013/09/09/religious_liberty_and_homophobia_h...

Two more legal cases that have implications for freedom of religion vs. anti-discrimination:

http://thinkprogress.org/lgbt/2013/12/06/3035121/colorado-bakery-broke-law/

and

http://www.sfgate.com/news/us/article/Pa-Catholic-school-teacher-fired-for-gay-w...

In the first case, one of the more interesting points made is that baking a cake was not, in itself, a religious act, and therefore it couldn't be considered "exercising one's religion" to refuse to bake a cake for a gay couple.

In the second case, the couple in question has more doubtful legal ground to stand on, since PA doesn't have anti-discrimination laws in place, and the teacher had signed a contract that included living by Catholic teachings. Although it is rather odd that the school would have turned a blind eye to his relationship until the moment he decided to make it "official."

It's that "making it official" step that seems to really push the issue with religious people--as if that's the point where their forbearance ceases to be "tolerance" suddenly morphs into "approval." As though homosexuality were a kind of rogue nation you don't dare legitimate by acknowledging officially, even though you deal with them on a daily basis.

New Mexico State Supreme Court overturns the ban on same-sex marriage.

And in the meantime, Phil Robertson from Duck Dynasty has just been suspended for being a homophobic nitwit.

http://www.cnn.com/2013/12/19/showbiz/duck-dynasty-suspension/index.html

Never seen the show. Kinda glad.

Just as long as they don't mess with Uncle Sy.

I've seen a lot of backlash from right-wingers about how the first amendment should keep that Duck Dynasty guy from being "censored." They seem to think the first amendment means you have the right to be paid to broadcast your views on TV.

It's a no win situation for them. Either they lobby for the right to speak your mind without being in danger of getting fired (which would be awesome, by the way), or a company has a right to fire personnel when they are deemed a risk to the bottom line.

>319 southernbooklady:

As I gather, the whole Duck Dynasty family has doubled-down on this, and said that, unless this is reversed, the show is dead. See http://duckcommander.com/news/robertson-family-offical-statement

"We want to thank all of you for your prayers and support. The family has spent much time in prayer since learning of A&E's decision. We want you to know that first and foremost we are a family rooted in our faith in God and our belief that the Bible is His word. While some of Phil’s unfiltered comments to the reporter were coarse, his beliefs are grounded in the teachings of the Bible. Phil is a Godly man who follows what the Bible says are the greatest commandments: “Love the Lord your God with all your heart” and “Love your neighbor as yourself.” Phil would never incite or encourage hate.We are disappointed that Phil has been placed on hiatus for expressing his faith, which is his constitutionally protected right.We have had a successful working relationship with A&E but, as a family, we cannot imagine the show going forward without our patriarch at the helm. We are in discussions with A&E to see what that means for the future of Duck Dynasty. Again, thank you for your continued support of our family."

Whatever the moral merits, I suspect A&E has miscalculated on this. Whats-his-face's comments were not going to do the sort of financial damage to A&E that losing the show will do.

For what it's worth, read Andrew Sullivan: http://dish.andrewsullivan.com/2013/12/19/ae-cannot-bear-very-much-reality/

"This is a fascinating glimpse into the fundamentalist mind. You’ll notice that, for the fundamentalist, all sin – when it comes down to it - starts with sex. This sexual obsession, as the Pope has rightly diagnosed it, is a mark of neurotic fundamentalism in Islam and Judaism as well as Christianity. And if all sin is rooted in sex, then the homosexual becomes the most depraved and evil individual in the cosmos. So you get this classic statement about sin: “Start with homosexual behavior and just morph out from there.”

This emphasis is absolutely not orthodox Christianity. There is nothing primary about sexual sin as such in Christian doctrine. It sure can be powerfully sinful – but it’s not where sin starts. And to posit gay people as the true source of all moral corruption is to use eliminationist rhetoric and demonizing logic to soften up a small minority of people for exclusion, marginalization and, at some point, violence.

...

But look: I come back to what I said at the beginning. Robertson is a character in a reality show. He’s not a spokesman for A&E any more than some soul-sucking social x-ray from the Real Housewives series is a spokeswoman for Bravo. Is he being fired for being out of character? Nah. He’s being fired for staying in character – a character A&E have nurtured and promoted and benefited from. Turning around and demanding a Duck Dynasty star suddenly become the equivalent of a Rachel Maddow guest is preposterous and unfair.

What Phil Robertson has given A&E is a dose of redneck reality. Why on earth would they fire him for giving some more?"

I have a feeling A&E will survive the loss of Duck Dynasty. Maybe they can start showing reruns of Orange is the New Black in its place.

What Phil Robertson has given A&E is a dose of redneck reality. Why on earth would they fire him for giving some more?

Because that "character" he was playing was owned by A&E.

I don't know. It's the top-rated "non-fiction" show in cable history. Their premiere this season did better than the Walking Dead. (That I knew none of this before this shows how isolated I am from the TV world. I do, however, love the Walking Dead) I think we're going to see some face-saving compromise, where Phil says he didn't mean offense and A&E says they didn't mean to question his religious beliefs.

Bah and humbug. Own your opinions.

There's a deeper question here. A significant percentage of Americans are going to continue to believe that homosexuality is a sin. What expressions of that belief are going to be acceptable in various cultural circumstances?

>324 timspalding: Presumably, what we're seeing here is that the "significant percentage" of Americans who think homosexuality* is a sin is less and less significant a percentage. Market forces at work.

*Meaning, gay sex. Which is all they seem to see when they look at gay people. If they weren't so hung up on how much anal sex squicks them out, a lot of this would probably, uh, peter out.

>325 southernbooklady:

People who are against homosexuality are divided on whether it's "just" gay sex. I think it's pretty clear this fellow thinks it's the inclination itself. There is clearly slow movement from that position to the assertion that the inclination by itself is not sinful, but only the action.

As far as numbers go, the last Gallup poll indicates that 41% of Americans do not think homosexuality is morally acceptable. (Since it's a phone interview, you can probably add 5%--people who don't want to say it over the phone.) That's not a small number.

But I'll bet 41% is smaller than whatever it was ten years ago, and twenty years ago, etc. Its an argument that has diminishing returns.

Of course, buried under all the "gay people, yuck!" stuff is also his "black people were fine before the Civil Rights era" opinion.

Personally, I think the real problem here isn't that he's a homophobic idiot, its that we accept corporate control over our personal opinions as the de facto price of a "free capitalist society." You want it? You got it.

I'm also less than impressed with people who whimper about Robertson's mangled freedom of speech rights since I have a feeling they wouldn't have batted an eye over some poor DJ getting fired for playing The Dixie Chicks in the midst of their "we're ashamed for GW" brouhaha.

Black Santas, the War on Christmas, and fired Phil McDuck: it's not an easy time for right-wingers.

It seems to me that there can be different standards for reality stars. I mean, if a newscaster got fall-down drunk on a show, the station should can him. I read recently that Shane MacGowan, the infamously wrecked lead singer of the Pogues, had his own reality series in Britain. Surely the same standard should not apply to him.

Apparently A&E was well aware of his anti-gay views. See http://hiphopwired.com/2013/12/19/duck-dynasty-star-blacks-happy-civil-rights/2/

>329 timspalding: It seems to me that there can be different standards for reality stars.

So really, your complaint isn't that his freedom of speech is threatened, it's that his contract with A&E was ambiguous.

Personally, I think the real problem here isn't that he's a homophobic idiot, its that we accept corporate control over our personal opinions as the de facto price of a "free capitalist society." You want it? You got it.

It seems to me that there can be different standards for reality stars

I'm not sure of either of these... Then again, I don't think there's much reality in reality television. Would you take the same tack when it came to something like the person who was disciplined at the DMV in SF for mailing religious lit to a transgender person that applied for a license, Nicki?

Well the DMV is government, so no. Separation of church and state and all that. Plus there is an issue about proprietary information and when it can be used for personal gain or motives.

But if the teller at my local bank branch wrote some piece of racist crap on her Facebook page, is that a reason it fire her?

In our current capitalist culture, it is.

You can measure the strength of our liberties in how well they protect those with whom You disagree.

Employers have always had the upper hand in relation to the rights of employees. (Belated Feudalism)

But if the teller at my local bank branch wrote some piece of racist crap on her Facebook page, is that a reason it fire her?

There's a grey area here. I doubt Phil gets the interview outside of the fact that he has the TV show.

So really, your complaint isn't that his freedom of speech is threatened, it's that his contract with A&E was ambiguous.

I have no complaint. I don't care either way about him and--as I said--I haven't watched the show, nor will I. I certainly don't think "free speech" is implicated in any way. A&E is not the government, for Pete's sake! But I do see it odd that A&E would build a show around a loose canon and then run screaming when it went off.

Employers have always had the upper hand in relation to the rights of employees.

Meh. When employees are charged for refusing to take a job working for a black man, or can't quit over something their boss said on Facebook, I'll believe employers have an absolute upper hand.

Anyway, your concern for employees here means what—you think the homophobe shouldn't be fired?

Then again, I don't think there's much reality in reality television

The whole phenomenon has passed me by. I recall the first season or two of MTV's "The Real World" with some affection. That was apparently the first reality show. I haven't seen one since, which is probably something like my mother studying music in the 1960s and being literally unaware of the Beatles. My wife's brother, however, has worked on the set of quite a few of them, and has great stories about how everything was manipulated.

One of my old roommates used to watch a lot of the cooking/restaurant challenge type stuff, so... But then again, he never quite understood that even if all of it actually happened, it was edited to provide a story arc.

Iirc, there was actually some guy from one of the shows a year or two back that was complaining about how everyone thought he was a jackass and was reaching out to try to change that perception (something about responding to the negative comments people left on various websites trashing him and others). He had something to the effect of "People need to understand that what they see on the screen isn't the real me." And I could help but think that he had just said something like "I'm not really a jackass, I just play one on reality TV."

People need to understand that ... I ... am ... a jackass.

I think the problem is editing.

Cut to Camera 1! There's a meltdown on Camera 1!

Jake announces, "She'll see who I am outside of reality"

I think someone's been taking rrp a bit too seriously.

#324: A significant percentage of Americans are going to continue to believe that homosexuality is a sin. What expressions of that belief are going to be acceptable in various cultural circumstances?

A significant percentage of Americans are going to continue to believe that giving gays crap for their sexual orientation is morally wrong; a non insignificant percentage of that is going to use the word "sin" for it. I see no reason to decide for the first group over the second group; if the first group is going to condemn gays out loud, the second group gets to condemn them for their lack of love.

http://www.patheos.com/blogs/slacktivist/2013/12/19/duck-dynasty-november-wines-... is interesting; to quote Fox News via it:

Despite his devotion to dinner time prayers and Christian values, “Duck Dynasty” star Willie Robertson has been axed from speaking at a benefit in Bristol, Tenn. for the faith and bible-driven organization, Family Ministries.

Why?

Wine.

The famous family announced its latest business venture last week: Duck Commander Wines. In conjunction with the winemakers of Trinchero Family Estates in Napa, the Robertsons’ own line of Red, Moscato and Chardonnay is slated to hit stores next month. According to the Ministries, Duck Commander Wines goes against the organization’s core values.

Apparently the outcry against Family Ministries was minimal, with no invocations of the First Amendment or anything.

>335 timspalding: Meh. When employees are charged for refusing to take a job working for a black man, or can't quit over something their boss said on Facebook, I'll believe employers have an absolute upper hand.

Well the title of this thread is "the limits of expression" after all. As it turns out, when it comes at the cost of another's civil rights, we've run in to one of those limits. Sadly, in this case, Phil's blathering was endangering his employer's right to freedom of expression in the form of garnering sponsors, and in this country, the corporate wins out over the individual. But that's been a right-wing position all along, so they really only have themselves to blame.

So Phil is a bigot. So he's exactly the reason the Civil Rights movement needed to happen. I think there are a million ways a situation like this could have been handled creatively and productively that did not require silencing or suppressing the rantings of a benighted evangelical.

They could have fronted the show with one of those disclaimers--

"The racist and homophobic views expressed in the following show do not represent the views of A&E. But this is reality television, so welcome to the reality that evangelical Christians can also be ignorant bigots."

They could have inserted little pop up ads supporting marriage equality during each episode.

They could have run the script so that gay people started showing in up the shows, or told Phil to spend some time tending bar at a gay club.

They could have announced that they would write a check to GLAAD or NAACP every time one of the characters said something prejudiced on air.

In short, they could have turned it into a dialogue. But no, they go for the nuclear option. Ooh, he said something icky! Shut him up! Shut him up now!

In short, they could have turned it into a dialogue. But no, they go for the nuclear option. Ooh, he said something icky! Shut him up! Shut him up now!

As far as I can tell, a dialogue is taking place, it has hardly been closed off by A&E's move. Moreover, Mr Robertson can join the dialogue that is happening right now if he chooses to.

Mr Robertson has not been silenced, censored, or otherwise limited in his speech rights. He can continue to hold and express his views from every duck blind in Louisiana or during guest appearances on any Fox News program of his choice.

Mr. Robertson is not being fired by the government; he's being fired by an employer. As previously observed, employers in most areas can fire people for inappropriate comments (on or OFF the workplace), poor conduct; any reason, or no reason at all. So, there is no 'censorship' issue here. Whether he SHOULD have been fired is another (completely reasonable) topic. Personally, although I don't care that much, I'd say no; but then, I'm not paying him, nor am I in charge of getting sponsors who will pay me, either. This was a business decision; perhaps incorrect, but all about the money, not the statement itself.

Whether someone considers homosexuality, or adultery, or drinking, or eating pork (or beef) a sin isn't the point; trying to make others conform to an arbitrary standard is the problem. Millions of Mormons eschew tobacco, caffeine, and alcohol. And they have a perfect right to do so. However, one can only imagine the firestorm should the Mormons make a concerted effort to ban the manufacture of caffeinated drinks, because they were sinful. The same is true of homosexuality; thinking it's a sin is very different from making it unlawful (at least in a secular country).

Yes, A&E could have 'opened a dialogue'. But they're out to make money, not engage in a debate.

I am not in their head, but I really don't think they did this for money. Perhaps all press is good press, but this may well turn out to be a disaster for them, if the family makes good on its promise not to work with them. If A&E hadn't intervened and just issued something about how their reality stars were real people and A&E doesn't stand behind anything they say, I think they would have been fine financially.

#344

I disagree; I think it was all about the money. Now, you may well be correct in saying it was a poor financial decision; but companies are not immune to error and costly snap judgements.

Spell it out for me, though. They thought that this would grow into a big hairy deal and that advertisers would stop advertising with them?

Obligatory "why are you talking about this when (insert bad problem)" post. Except this time I kinda agree.

Like you, I'm making guesses as to what the A&E execs were thinking (or even that they were thinking, to be fair).

I suspect that they reacted to a provocative statement that was certain to bring negative attention to the network for permitting said statement to be aired. (And yes, I know, and the execs knew, that their ability to prevent said statement did not exist; however, that hasn't stopped people from blaming those 'in charge' before.) In short, although 'everyone knew about' Robertson's views, they could be ignored prior to this incident.

The first reaction of an organization to someone who may cost them money in the short term (particularly someone who, in the minds of the execs, could be easily replaced) is to swiftly remove them, state they were 'shocked' by the statement, had no idea he would say such a thing, and distance themselves as quickly as possible while looking for a suitable replacement. This is SOP for most businesses, and A&E at its core is a business.

Of course, sometimes the standard procedure is completely wrong.

#347

Hey, I'm trying to parlay my World of Warcraft experience into a sweet paying gig with the NSA; don't mess it up!

In seriousness, other than supporting third-party candidates and outspoken attorneys/judges who oppose the Panopticon, I'm not sure what to do...

#341: But no, they go for the nuclear option. Ooh, he said something icky! Shut him up! Shut him up now!

Yes. This is how society works; we can't do much about (e.g.) racist and misogynistic comments made in private, and there are a lot of them. But we can as a society shut down people who insist on making those statements in public, and make those ideas disreputable, and over the long run that will make it more and more unacceptable to say in more and more private circumstances.

"You have not converted a man because you have silenced him."

John Morley

Of course, if all you're worried about is your tender sensibilities, that's fine.

It is infinitely easier to silence an opponent than to respond. I totally disagree with Papa Duck, although I have no real idea who he is, other than some kind of cultural flash in the pan. A&E made a business decision in taking him off the air, but not only have you not converted the man you silence, you also have not converted those who agree with him. Instead of making this an opportunity for some kind of constructive debate on LGBT issues, it is now a freedom of speech issue.

Oh well. Given the way disagreements are handled here, I guess silencing may be the best option.

Robertson has not been silenced.

#353: quite right, in fact his voice has, if anything, been magnified:

http://houston.cbslocal.com/2013/12/19/hundreds-of-thousands-support-boycotting-...

That is true, but where is the debate? Just people yelling at people. Blinded people on both sides reacted with their jerky knees, bleeding hearts, and Elvis-walking-in-the-garden-with-Jesus-and-John-Wayne spirituality.

For this, the Son of God become incarnate flesh.

"Illinois Congressional candidate Ian Bayne on Friday voiced his support for “Duck Dynasty” star Phil Robertson, comparing the reality television personality to civil rights icon Rosa Parks.
“In December 1955, Rosa Parks took a stand against an unjust societal persecution of black people, and in December 2013, Robertson took a stand against persecution of Christians,” Bayne, a Republican, wrote to supporters Friday. “What Parks did was courageous. What Mr. Robertson did was courageous too.” http://www.politico.com/story/2013/12/ian-bayne-duck-dynasty-rosa-parks-101393.h...

#355: For this, the Son of God become incarnate flesh.

rumor has it He'll be back.

>356 theoria: "Illinois Congressional candidate Ian Bayne on Friday voiced his support for “Duck Dynasty” star Phil Robertson, comparing the reality television personality to civil rights icon Rosa Parks.

People running for public office have no sense of shame.

#351: "You have not converted a man because you have silenced him." ... Of course, if all you're worried about is your tender sensibilities, that's fine.

I notice you don't petition Tim to drop his rules about board conduct. Why?

I don't dismiss tender sensibilities; I think public figures talking about "faggot nigger cunts" without repercussions would have very real negative effects on society. And on an individual level, you're either silencing that person or the people who would respond with all hostility and boycotts to such a statement.

Life is more complex then your quote. First, if someone from the next generation realizes that the people they sees on TV, their teachers, all respectable people eschew racist statements, and he mainly hears them from his drunk uncle, then they are less likely to be racist. Secondly, people who are surrounded by people who don't find racist statements acceptable is less likely to carry them; yes, some people will double down, find forums where their words are acceptable, but social conformity and cognitive dissonance will push many others who hold ideas considered wrong in wider society to moderate their views.

Honestly, if a business owner treats his customers fairly, I don't care whether he's been converted from his racist, sexist views or is just doing it because the news would jump all over the story and customers would drop him like a hot potato if he didn't.

To pick a current news example, passengers objected when a blind man was kicked off an airplane flight.* Do you think it's a better world where the other passengers sat down and shut up? If it were merely a flight attendant abusing the blind man for wasting the time of normal people and having "pet privileges" other people don't, do you think it's a better world where the passengers stand up and tell the attendant and the company this was unacceptable, or do you think that they should accept that they can't convert the attendant and not bother trying to silence him?

* http://news.yahoo.com/blogs/trending-now/airline-passengers-raise-objections-whe...

358> Well Bayne obviously didn't read Robertson's comments about the happy blacks he worked with in the cotton fields.

#352: Instead of making this an opportunity for some kind of constructive debate on LGBT issues, it is now a freedom of speech issue.

It is not a freedom of speech issue, and certainly Fox News gave enough hell when the people were talking about restoring the old Fairness Doctrine over the public airways.

If a restaurant bans black customers, do you want a constructive debate on whether white people should have to sit next to blacks and whether blacks can appreciate good food? If a talk show host says we should lynch all Christians, do you think the radio company should open a constructive debate on whether that's a good thing? Do you really think letting bigots open up a "constructive debate" on their terms whenever they want is a good thing?

> 342. a dialogue is taking place, it has hardly been closed off by A&E's move. Moreover, Mr Robertson can join the dialogue that is happening right now if he chooses to.

You bet a dialogue is taking place and, as far as A&E's concerned, it's all good. Their wisdom will be validated when the ratings for new editions of the show spike from their already high levels, as opposed to the inevitable decline that would be expected when the novelty of mega-beards and chitlins wore off. More importantly, ratings for the re-runs will also go up, because people who hadn't heard anything about Phil before will want to see what all the fuss is about and may be intrigued by the Beverly Hillbillies charm of it all.

I'll be very surprised if: (1) this controversy isn't woven into the storyline of the show in some way, giving the rest of the family a chance to weigh in and give a down-home "live and let live" spin on things, and (2) Phil doesn't come back. After all, he's only suspended. When the timing is right (i.e. when another ratings boost is needed), he'll be back at the head of the table delivering the inevitable meal blessing that closes out each episode.

#359

Tim has every right to configure his board policies anyway he desires; if I found them objectionable, I would say so...to him. Just as A&E has every right to fire someone in their employ. I don't find LT's policies particularly constraining, nor have I felt 'silenced' by them. If that were not the case, I wouldn't be here.

Of course people have every right to respond to objectionable speech with speech of their own; that's sort of the point, after all. There's a difference between responding and shouting someone down, though. I fully support anyone who wants to watch Duck Dynasty without homophobic commentary, and wants to call out Mr. Robertson as a bigot. Just as he has the right to say ridiculous, offensive things, people have the right to point out that what he's saying is ridiculous and offensive.

What you're suggesting is 'social engineering'; the hope that somehow we can eventually make people better than they are now. Although it's possible to make improvements to individuals (albeit difficult), I don't agree that it's possible on the scale you describe. People have to decide for themselves that what they're hearing is wrong. Exposure to other people, other ideas, makes that easier.

The difference between many of the examples cited and the actual event is the laws involved (and enforcement of said laws). Mr. Robertson broke no laws. Not only would a restaurant who refused to serve minorities be in violation of the law, that law would be enforced (these days, at least).

Link won't open for me at work. I'm curious, though; did the passengers walk off the flight as well, or did they just complain about how unjust the action was?

Now Utah:

"A federal judge has struck down Utah's same-sex marriage ban, saying it is unconstitutional. . . (U.S. District Judge Robert) Shelby says the state failed to show that allowing same-sex marriages would affect opposite-sex marriages in any way, and the state's unsupported fears and speculations are insufficient to justify deny allowing same-sex marriages. Attorneys for the state argued that Utah's law promotes the state's interest in "responsible procreation" and the "optimal mode of child-rearing." http://www.politico.com/story/2013/12/utah-gay-marriage-ban-101399.html

Ah yes, the State's interest in 'responsible procreation'. And people claim the law lacks humor.

365> Well, there is the case of Octomom.

Meanwhile, in another part of the country:

http://www.buzzfeed.com/ryanhatesthis/high-schoolers-staged-a-massive-sit-in-aft...

I think the Catholic Church has forgotten that the students of today will be adults in short order; that eventually, IF they stay in the church, they may well be in a position to do more than just protest.

Or they could just decide that there's no point in trying to reform a bankrupt institution and simply walk away. Hard to enforce edicts on an absent congregation...

There appears to be a Mitt effect:

@MrDanZak: Gay marriage is now legal in every state in which Mitt Romney owns a home.

#363: There's a difference between responding and shouting someone down, though.

Yes; responding says that this opinion is worth discussing, that it is not beyond the pale.

What you're suggesting is 'social engineering'; the hope that somehow we can eventually make people better than they are now.

(A) It's pretty clear that we have made people better then they were before. It's pretty clear that we've made people less racist, more tolerant of other religions, other nationalities.

(B) It's not just about making people better; it's about keeping them the same. It's about keeping existing social bounds, about keeping people civilized and not breaking up into little cliques that have hateful stereotypes and violent fantasies about each other. It is possible on the scale I describe because it's what happens on the scale I describe, and has happened for all history. Society has always reacted with extreme hostility to certain expressed opinions; the main difference is where the line between extreme hostility and the use of force comes into play.

Not only would a restaurant who refused to serve minorities be in violation of the law, that law would be enforced

Is it illegal to keep a sign that says "Niggers can go to hell" in your business? Is it illegal to be surly and dismissive to certain customers? Is it illegal to close Sundays right before the Filadelfia Hispanic Baptist Church gets out, so you don't have to serve them? Is it really reasonable to say that social pressure in a situation like that is unreasonable but legal force should be jumped to?

did the passengers walk off the flight as well, or did they just complain about how unjust the action was?

They walked off the flight.

#370

If you're prepared to dismiss the opinions of others as 'beyond the pale', you needn't be surprised when they respond in kind.

(A) Really? Because I honestly don't see this happening. There seems to be just as much hatred, nationalism, and intolerance as ever. It's just not happening right here (the United States). At least, not right now...

(B) And ditto; I just don't see this improvement you're talking about.

Of course offensive expressions are legal. But social pressure is not the law, and vice versa. There were laws in various states prohibiting discrimination; they were routinely ignored by authorities. The law existed; but no one cared. And relying on social pressure carries the risk of mob/majority rule. Lynching was illegal under a variety of laws, but social pressure kept it sanctioned for a long time.

In that case, the passengers are to be respected for taking a stand. It's easy to complain; much harder to sacrifice time and/or money (let alone freedom). And by the same token, their protest will be harder to ignore. Business owners recognize the difference between 'whining' and 'actions that will affect our bottom line' and act accordingly. But again, business owners are people, and willing (sometimes) to take stands that are very unpopular. It's just far less common.

The bible clearly states that women (here on earth) must be subservient to men. Things are more egalitarian in heaven and hell but one has to get there first to enjoy the equality.

Re the biblical injunction - I paraphrase: It is alleged that god is the big cheese who relays his commands to men, who are just below him, then a man is designated the head of the family, then the wife, who is to obey her husband, then the children who, I guess, must do what daddy tells mommy to tell them to do or not do.

I think this duck dynasty turkey should be asked next in a public forum how he views god, men, women - i.e., does he go along with the bible or is he a heretic? And maybe someone should ask him what he thinks of the push to reform America's immigration policy, and what his personal opinions are regarding Hispanics, Arabs, and Jews.

I think the upshot of that would be that pretty much everybody would hate the son-of-a-bitch except redneck men.

Then A&E would look like effing geniuses.

#372: If you're prepared to dismiss the opinions of others as 'beyond the pale', you needn't be surprised when they respond in kind.

Sure. And there might be an argument that it's early to start trying to push against anti-homosexuality that way. But the point is, some opinions are going to be beyond the pale if we as a society are willing to stop inviting them to have discussions with us. he KKK and Ariel Castro is better left beyond the pale, instead of having long discussions with them about the subject as if they represented an important view we should consider. They can respond with whatever words they want; it doesn't matter because they are beyond the pale. (And most of these groups have made it clear they consider us outside the pale; how many times has homosexuality been compared to bestiality?)

Really? Because I honestly don't see this happening. There seems to be just as much hatred, nationalism, and intolerance as ever.

This is, objectively speaking, in one of the most peaceful times in human history. Worldwide, wars of conquest have pretty much been rejected. Worldwide, legalized racial segregation is pretty much over.

If we look at it over thousands of years... "Now therefore kill every male among the little ones {after killing the adult males}, and kill every woman that hath known man by lying with him. But all the women children, that have not known a man by lying with him, keep alive for yourselves." I'm pretty sure that a huge majority of people across the world would agree that's completely unacceptable behavior for a victor in war.

But social pressure is not the law, and vice versa.

But? That's part of the point. The law should be an absolute shield of human rights, whereas society can pressure people to behave in upright ways in ways the law can't. No, I'm not encouraging lynching; I'm encouraging social pressure to be used with in the law.

In that case, the passengers are to be respected for taking a stand.

Why? They're doing exactly what I'm arguing for, the use of social pressure to convince people and groups to behave in ways generally considered acceptable.

We'll have to disagree on the relative 'peacefulness' of the world. From my perspective, if you look at what's going on in Africa and Asia alone, although the conflicts are dispersed, they're just as bloody, intolerant, and full of mass mayhem as ever. And in many of these 'brushfire' wars, killing all the adult males and keeping the women (briefly) alive is still quite common. (As is simply killing everyone.)

People who take a stand when it has personal consequences for them should be respected and acknowledged...because it's so damn rare. Most people will express discontent at something, but not take any action that could expose them to any inconvenience whatsoever. Writing nasty letters, shouting epithets, threatening to call someone who will do something are far more common...and far more easily ignored.

http://rall.com/2013/12/22/syndicated-column-54-of-the-time-americans-arent-prot...

Another take on the issue...

We'll have to disagree on the relative 'peacefulness' of the world.

Then you'll be disagreeing with Steven Pinker, who has the advantage over you in that he has actually studied the issue.

>376 BruceCoulson: Thanks for that.

I agree we allow too much corporate control of our supposed freedom of expression. And frankly, I don't think Rome would burn if corporations practiced a hands off approach to way their employees exercised their freedom of speech outside the workplace.

Interesting that you take the position that I haven't 'studied' the issue.

I'm hardly the only critic of Dr. Pinker's thesis.

379: Well, given that you've offered nothing to back up your claim of a more violent world other than your feelings, the conclusion isn't that hard to make.

Your claim that Africa is more violent (or even merely just as violent) is simply untenable, and you'd know this if you had studied any African history at all.

http://en.wikipedia.org/wiki/Second_Congo_War

http://www.ucdp.uu.se/gpdatabase/search.php

Africa is just as violent because people in Africa aren't any different than people elsewhere.

Violence is a method of resolving conflicts. Although not always successful, there are times when it is the only method of ending a conflict (other than simply surrendering).

The thesis, then, would have to prove that we've turned away from violence in conflicts where there are more succesful methods of resolution.

Yet, violence, or the threat of, or implication of, violence is used universally to ensure compliance to demands.

Particularly since other methods are perceived to take more time and resources to achieve similar (even if more beneficial) ends.

#381: http://en.wikipedia.org/wiki/Second_Congo_War

One data point hardly does much against serious scholarship.

381: The Second Congo War? That's your argument? If so, then we can pretty much dismiss your claims out of hand, since any examination of African history would be sufficient to show you that Africa was much more violent in the past. That you don't know this is evidence that you have not actually studied the question at all.

#381

Fukuyama's Origins of Political Order would seem to contraindicate some of that, also.

It's a sad thing that the best response offered to untellable human suffering around us this very day is, "It used to be worse!"

385: No, what is being said is "the world is getting better".

Actually, what is being said is "the assertion that 'war and violence are a constant' does not seem to be supported by the data."

#386,387: Right. This started in #374 where I was arguing that we could make it better, and the response was, no, it's always been this way and always be this way.

Yet here is the report from one of our own members, @johnthefireman , who recently had to take an emergency evacuation flight with his wife out of Juba to Nairobi:

The first few days were a bit hectic. I found myself driving around the town gathering the church leaders to work for peace (cellphone networks were off so we had to do it the old-fashioned way). Every time I heard a fire-fight ahead I had to turn off and find an alternative way round. I also helped to mobilise the Caritas agencies (including CRS) to assist the thousands of people sheltering in the Catholic cathedral. My wife had to hunker down in her office for a while as they used tanks and heavy weapons at the end of her street, but then she took on the relief work - she is currently the Country Director of CAFOD.

They are working to making it make it better, but the guns and tanks are still shooting.

I'm not sure how that's anything but a non sequitur...

I mean, it's a pretty nice story to wake up to on Christmas Eve Morn and all, but...

I think you could posit that the capacity for violence inherent in the human species has not changed, but that the situations where we choose to resort to it are decreasing. At least, on a global scale. When we do resort to it, though, we're just as bloodthirsty as we ever were.

>391 Jesse_wiedinmyer:: We have a nasty habit of talking about violence in terms so detached and clinical that we easily forget the real people who are hurt, their lives destroyed by the bloodthirst of our fellow humans.

When it's people we know and care about--even if only electronically these days--who are being hurt by that violence, it makes it a bit more difficult to dismiss its cost so blithely.

Some people don't have a problem with that at all. After all, it is just a non sequitur.

Welcome to our brave new world.

393: The only person who has talked about dismissing the cost blithely is you. You're fighting against a position that no one has taken.

#393: Every person I know who is a member of the NRA justifies it by the concept of real personal violence to their family. Many wars are justified by perceived threats to the citizens of the country. A little distance helps.

Specifically, dwelling on war encourages the creation of large protective armies and even preemptive attacks designed to fight the "inevitable" war on foreign soil. Teaching nonviolence needs people dwelling on the examples and statistics of peace in the modern world.

I said it's a beautiful thing. It's also a red herring to the discussion at hand.

Certiorari denied: The Supremes take a pass on Elane Photography v. Willock http://www.supremecourt.gov/orders/courtorders/040714zor_21p3.pdf

Here they go again (this time in Pennsylvania):

"A Facebook post is getting a lot of attention after a same-sex couple was denied service at a bridal store in Columbia County.
Eyewitness News spoke to the woman who was turned away by "W-W Bridal Boutique" in Bloomsburg.
According to the woman's Facebook status, an employee at the boutique told her quote "Unfortunately she would not be able to schedule an appointment for them because they currently do not service same sex couples -- it's just not something they do."
The owners of "W-W Bridal Boutique" told us they turned away the women citing religious beliefs." http://www.pahomepage.com/story/d/story/bridal-store-denies-same-sex-couple-gown...

And here's the twist, after some months:

Baker faces complaint for refusing anti-gay message on cake
http://www.cruxnow.com/life/2015/01/22/baker-faces-complaint-for-refusing-anti-g...

If a cake decorator is required to decorate a cake for a same-sex couple, are they also required to decorate a cake AGAINST same-sex marriage? The baker refused and is now being sued.

Obviously I think asking for a cake with an anti-gay slogan on it is enormously offensive. But it raises a legitimate question, and goes to a distinction I drew--a distinction few on the left or right want to draw, because it gives both sides only a "partial victory."

Above I argued something that wasn't much heard in the debate about bakers and photographers who refused to provide their services for a gay wedding and were sued, namely that there is a distinction between inexpressive and expressive services. It's one thing for the law to prevent discrimination about the former--to ensure that gay people, or Catholics, can buy a sandwich, whether or not the sandwich-shop owner hates gays or Catholics. But the right to free speech means nothing if is doesn't mean the right to refuse to speak against your conscience. This is, of course, clearest in the "most" expressive occupations. A novelist who sometimes writes on commission can scarcely be sued for having a policy of refusing to write a novel in support of gay marriage, a novel against gay marriage, a novel in favor of some religion they don't believe in, etc. If the state can compel people to write novels against their consciences, free speech is truly dead.

This case is the same principle, albeit with a less lofty form of expression. The law should defend anyone denied wedding chairs, port-o-potties or chipped ice based on their religion, race or sexuality. But certain services fall under free speech. Words and drawings made on a cake—whether of a happy gay couple or a gay couple with an X through them, next to a Bible—fall under that principle. While cake decorating—or wedding photography—aren't novel-writing, they are still expressive, and given that the supreme court has repeatedly broadened free speech, including, for example, exotic dancing, it's entirely appropriate to put them in that category here.

>400 timspalding: This case is the same principle, albeit with a less lofty form of expression. The law should defend anyone denied wedding chairs, port-o-potties or chipped ice based on their religion, race or sexuality. But certain services fall under free speech.

What falls under the category of "expressive services" is what the courts seem to be attempting to determine. And it might not simply be the presences of words that makes something fit in that category, but also the intended audience, the reach, the nature of the payment for services rendered, etc.

No, mostly the arguments are about freedom of religion and conscience. Both sides thinks the principle should be general—religious qualms should trump discrimination law, or never do so.

As I've argued, there are some aspects of that here. No one should be required to enter a religious space or attend a religious event, unless absolutely necessary. (Thus, "least restrictive means" not "compelling interest.") But that applies only to the photographer—or a harpist, stained glass artist, etc. It doesn't apply to the person who rents wedding chairs, sells champagne flutes, etc. And it doesn't apply to someone who bakes a cake. It does, I think, apply to a cake artist who'e asked to draw or write things they don't want to draw or write, whether we're talking about anti-gay things, pro-gay things, religious things or atheist things.

So would you support a baker's right to deny service to a gay couple that went to a bakery and picked a wedding cake out of a catalog of their styles, a cake that the baker would be happy to make for a straight couple? Or just if they wanted a custom cake that flagrantly depicts that they are in a same-sex relationship?

Right. That's the difference, or could be, depending on what level of creativity and artistic input is involved. (Cakes are a bad case, because they're so conventional, but I can imagine a cake decoration that is highly original and expressive.) But I support the right of people to write novels in favor or against gay marriage, and not to be forced to write novels against their views because someone is willing to pay. Obviously that rationale should not cover refusing to sell ink and stationary.

To be clear, the point needs to be the expression, not the recipient. If there's evidence it's the recipient per se, not the forced expression, discrimination law should apply.

Mike Huckabee in 1216!

"Republican presidential hopeful Mike Huckabee says expecting Christians to accept same-sex marriage is "like asking someone who's Jewish to start serving bacon-wrapped shrimp in their deli."

He also called homosexuality part of a lifestyle, like drinking and swearing.

He also offered a nod to legislation that some conservatives have advocated on the national and state levels protecting businesses from discrimination claims for adhering to their owners' religious views.

"I'd like to think that there's room in America for people who have different points of view without screaming and shouting and wanting to shut their businesses down," he said. "What worries me in this new environment we're in, it's not just that someone might disagree, they don't want to argue with me, even take a different point of view. They want to close someone's business down."

Huckabee pointed to President Barack Obama's 2008 opposition to same-sex marriage, but said there's no chance he'll ever drop his opposition to gay marriage.

"This is not just a political issue. It is a biblical issue. And as a biblical issue -- unless I get a new version of the scriptures, it's really not my place to say, OK, I'm just going to evolve," Huckabee said." http://www.cnn.com/2015/02/01/politics/huckabee-gay-marriage/

>405 theoria: "What worries me in this new environment we're in, it's not just that someone might disagree, they don't want to argue with me, even take a different point of view. They want to close someone's business down."

Coming from a man who doesn't want to legalize gay marriage? I guess all sides are willing to use legal power to back their position and then complain about the other side doing so. And he's clear that he doesn't find a protest or probably even a boycott acceptable; you have to just accept a business that doesn't want to deal with gays.

Mr Huckabee illustrates the risks for politics and religion when they are naively mixed: lacking sufficient regard for constitutional rights (e.g., "It is a biblical issue"), both are debased.

Huckabee means that asking a Christian to accept same-sex marriage is like asking a Jewish deli owner to be OK with the seafood restaurant down the street, right? Since no one is trying to force straight people to marry someone of the same sex, I'm sure that's what he was getting at.

N. Ireland:

"Equality legislation aimed at preventing discrimination on grounds of sexuality, religion, race, age or gender cannot have any exceptions, the court case concerning the “gay cake” controversy in Northern Ireland has heard.

A barrister for a man alleging the Evangelical Christian-owned County Antrim bakers Ashers is guilty of anti-gay discrimination told Belfast high court: “The rule of law says there shall be no discrimination in the commercial sphere.”" http://www.theguardian.com/uk-news/2015/mar/26/gay-cake-row-bakery-owner-says-he...

N. Ireland ruling:

"A Northern Ireland bakery has been found guilty in a landmark ruling of discrimination for refusing to bake a cake with a pro-gay marriage theme.

Ashers Baking Company received worldwide support from evangelical and born-again Christians over its refusal to make the cake for a local gay rights activist in the region.

But a judge in Belfast high court on Tuesday ruled that the family-owned firm was guilty of discriminating against Gareth Lee on the grounds of sexual orientation.

District judge Isobel Brownlie acknowledged that the McArthur family, which owns Ashers, do “hold genuine deeply-held religious beliefs”.

However, she pointed out that government regulations were there “to protect people from having their sexual orientation used for having their business turned down”.

The judge added: “I believe the defendants did have the knowledge that the plaintiff was gay.”

Outlining her reasons why this was a case of discrimination, Brownlie said: “The defendants are not a religious organisation. They conduct a business for profit. As much as I acknowledge their religious beliefs, this is a business to provide service to all. The law says they must do that.” http://www.theguardian.com/society/2015/may/19/northern-ireland-ashers-baking-co...

>410 theoria: Ashers Baking Company received worldwide support from evangelical and born-again Christians over its refusal to make the cake for a local gay rights activist in the region.

Honestly, these Christian wedding photographers and bakeries and pizza-makers who so jealously guard their services and are so easily discombobulated by a rainbow flag. Could the concept of freedom of religion possibly be made any more petty and small?

>411 southernbooklady:

More generously: they suffer from misguided beliefs.

Less generously: they gravitate towards any reason to hate.

More analytically: the rush to defend the religious freedom of bakers, pizza makers, and wedding photographers has something to do with a specific form of bigotry, but it is also a symbolic act, a big swing against secular, modernist trends that have put tradition on its back foot. Much as anti-abortion rhetoric has been shown to be linked to a defense of the status of motherhood (Kristin Luker, Abortion and the Politics of Motherhood), anti-gay religious freedom legislation (or executive orders) may be linked to a defense of the status of the patriarchal family. A study of the values and lifestyles of those most active in this religious freedom movement would be necessary to distill the symbolic value of what appears, from a rational and objective point of view, to be an superfluous rush to defend something that is not threatened.

>412 theoria:

More charitably, we have a strong, abstract and bright-line sense of right and wrong, together with a similarly bright-line theory of moral involvement, and a dislike of the idea of government involvement. These aren't simply bigoted attitudes, they're typical of evangelicals and conservatives generally respectively. That is, in seeing things in such stark terms and in thinking government involvement here is heavy-handed, the proponents are acting in character. They might be bigots—probably are—but their political ideas would go in the same direction even if they weren't.

FWIW, I have a lot of sympathy with the latter. There is something silly about demanding that the government force someone to make you a cake who doesn't want to. I mean, someone can refuse to make you a cake for all sorts of silly, arbitrary, hurtful and discriminatory reasons and the government doesn't get involved. Things look different from a liberal perspective--that is, from a perspective that assumes government is there to right every wrong. A conservative looks at that and thinks that, even if the recalcitrant baker deserves a slap, a government empowered to intrude on cake-buying is just a bad actor away from micromanaging a lot of stuff that should be left to personal choice.

I have much less sympathy with the former. That is, I think Jesus would have baked the frikin' cake. Even if such a wedding is immoral—which I doubt—I think he'd have shown love. Baking the cake shows love, and creates a connection that might grow in love later on. To hear some Christians talk about it, giving cakes to gay people is like supplying the Nazis with poison gas.

Lastly, constitutionally, as I've said, I think the bright line is actual participation in a religious ceremony and speech. The government cannot force a private citizen to be present at a religious ceremony, even as a photographer. And there's a point when the content level of an art form gives it absolute free-speech protection. The government cannot, I think, force people to compose poems in honor of a gay wedding, even if they execute them in chocolate. I have no strong opinion about how many chocolate letters turn a product into speech.

Much as anti-abortion rhetoric has been shown to be linked to a defense of the status of motherhood (Kristin Luker, Abortion and the Politics of Motherhood)

Maybe so. Personally I'm amazed that pro-choice and pro-life numbers have stayed constant, even as American family structures and gender relations have been transformed in the last few decades. Abortion is often portrayed as a straightforward battle for women's rights and against traditional ways of thinking. If so, pro-life sentiment would have fallen in line with other, similar metrics.

>413 timspalding: There is something silly about demanding that the government force someone to make you a cake who doesn't want to.

It becomes much less silly when it is a doctor who refuses to treat a patient because they disapprove of them.

Things look different from a liberal perspective--that is, from a perspective that assumes government is there to right every wrong.

The government is there to ensure its citizens enjoy the full rights of citizenship. Somehow, I think disallowing discrimination seems like a better route to take than implementing a discrimination free-for-all.

But yeah, I agree. Jesus would have baked the frikin cake. He's also the type that would have sat down with all those sinners and shared it.

There is something silly about demanding that the government force someone to make you a cake who doesn't want to.

Yeah, just as silly as demanding that the government force restaurants, hotels, and landlords not to discriminate against certain groups of customers. I mean, we used to have racial segregation and that went away when every bigot was politely asked not to do that any more. No government force needed at all.

It becomes much less silly when it is a doctor who refuses to treat a patient because they disapprove of them.

Yeah, just as silly as demanding that the government force restaurants, hotels, and landlords not to discriminate against certain groups of customers. I mean, we used to have racial segregation and that went away when every bigot was politely asked not to do that any more. No government force needed at all.

Well, no. Ultimately I agree with you guys about the cake baker. But we need to keep our sense of proportion. Some services are more critical than others. Renting an apartment is a critical need. Doctors treating patients is a critical need. Restaurants and hotels are pretty important too. But getting the evangelical anti-gay cake decorator over the 99 others is not on the same level of necessity.

As for segregation, I think there's a major difference in scale—a difference in scale that is grotesque. We're talking about a small segment of a small segment of the market that wants out of providing services to gay weddings. I don't like it, and I understand and even largely agree that discrimination should apply to small things too. But that's not remotely comparable to the culture-wide, market-wide and state-sponsored discrimination against black people.

All-in-all, in less than two decades we've gone from legalized same-sex marriage being forbidden everywhere, with our current president a opponent of them on explicitly religious grounds, to forcing stubborn evangelical cake decorators to make rainbow wedding cakes on demand. I'm inclined to wonder at that. And while I actually agree about the wedding-cake people, I don't see this in quite the same everything-or-Jim-Crow terms you guys seem to.

But yeah, I agree. Jesus would have baked the frikin cake. He's also the type that would have sat down with all those sinners and shared it.

"Jesus—go away, already! We paid for the cake. You don't get to 'share' it with us."

The government is there to ensure its citizens enjoy the full rights of citizenship.

I think it's worth considering just how far "citizenship" extends. Originally civil rights was about stopping the government from treating some people unfairly—the full rights of citizenship were about citizenship, not social acceptance. The Civil Rights era extended that principle to how private individuals in commerce behaved, but left other social acceptance out.

At present the line is something about public things being open to all, with special carve outs for religious worship and private endeavors. A church doesn't need to hire a female priest, and you don't need to invite your black neighbor to your child's birthday party, even if you invite all your other neighbors and it's at the local park. But the edge is ragged.

I think we're in for a lot of edge-cases, with each proclaimed to be the moral equivalent of Jim Crow. As said, I agree on the cake baker, and obviously on doctors and so forth. But I don't agree that a church should be forced to rent its property out to groups it disapproves of, even though the property is not within the four walls of a sacred space. Nor I think the government should be forcing religious organizations to provide condoms to employees when other easy legal means are available to provide them (ie., tax organizations and have the government pay for them).

>416 timspalding: Doctors treating patients is a critical need.

Not necessarily: Michigan pediatrician refuses to treat lesbian couple's child

Originally civil rights was about stopping the government from treating some people unfairly—the full rights of citizenship were about citizenship, not social acceptance.

They still are. But I'd argue that government is also about protecting/supporting the common good. The "freedom" that people were looking for when they came over on those boats from England wasn't freedom of religion. It was the freedom to establish their own government on their own terms. They weren't exactly liberal terms, by and large.

But I don't agree that a church should be forced to rent its property out to groups it disapproves of, even though the property is not within the four walls of a sacred space. Nor I think the government should be forcing religious organizations to provide condoms to employees when other easy legal means are available to provide them.

A wedding cake maker isn't "a church." Although I disagree with you on the issue of birth control on the grounds of safeguarding public health and safety, which has precedence for trumping religious scruples in many cases.

>416 timspalding: But I don't agree that a church should be forced to rent its property out to groups it disapproves of, even though the property is not within the four walls of a sacred space.

The more the church gets into owning large chunks of property that it rents out, the less comfortable I am with religious exceptions. The line between being a church and being a business should be cleaner than that.

Not necessarily: Michigan pediatrician refuses to treat lesbian couple's child

It might be true that there are enough pediatricians out there that it's not a "critical" need. But heath care overall is, well, a life-or-death matter. There are never enough doctors near you, never enough spots. A compelling case can be made for a blanket rule on such a critical part of the economy. I don't think the same logic would apply to cake bakeries.

The more the church gets into owning large chunks of property that it rents out, the less comfortable I am with religious exceptions. The line between being a church and being a business should be cleaner than that.

I agree with that. If the Mormon church owns Kreuger—and for all I know, they do—that should have no protection. I take the Ocean Grove Camp Meeting Association case as the other extreme. A Christian religious camp should be able to control whether or not same-sex marriages are performed on their premises, even if from time to time they allow the Boy Scouts to use their site.

A wedding cake maker isn't "a church."

No, and I agree. Nor does it have a very close tie to one, as might, for example that bakery that makes communion wafers for Catholic churches around the US.(1) I would say, however, that one can also distinguish between discrimination against people and against ideas. For example, a cake baker is perfectly within their rights to refuse to bake a pro-Obama or pro-Romney cake. Indeed, they are within their rights (in most states) to refuse services to Republicans or Democrats, and in hiring too. I would presume that they could refuse to bake a cake for a "Yes on whatever" ballot initiative, even if the initiative were about gay marriage. I would similarly pressure one could refuse to bake a cake for the "Gays for Clinton" dinner. At what point does same-sex discrimination come into play? What if the customer—for example, the mother-in-law—is straight, and the baker is happy to fashion any cake for a gay couple, excepting one that says "Happy Wedding Joe and Larry" on it, and has two marzipan grooms on top?

---

1. Must they be forced to sell communion wafers to Satanists? To Episcopalians?

>419 timspalding: I would say, however, that one can also distinguish between discrimination against people and against ideas.

Homosexuality is not an idea, it is an indivisible aspect of a person. Granted, there are churches that have a hard time accepting that, but they are going to have to get around to dealing with it eventually. Mind you, for the same reason I don't think it should be allowed to refuse to serve someone who wears a turban, or a Star of David, or a habit. But my usual position is that the rights of the individual trump the rights of the corporate.

At what point does same-sex discrimination come into play?

At the level of the Constitution, I hope. We'll see what SCOTUS says but I hope they do the right thing. You can be as discriminating as you like in a free-market economy and the only judgment that you will suffer is that your business might fail. But there are specific things you can't do, and these have been put in place to redress and safeguard against great and terrible social injustices that would not otherwise correct themselves and that would inflict suffering on the citizenry.

But I'm still stuck on the fact that stories like those of the wedding cake maker and the pizza parlor have set the stage for discussions of freedom of religion at this small, petty level of who you don't want to have to deal with -- who you want to exclude from your life.

Someone once accused the gay couple who sued a wedding photographer of being trivial--of trivializing what it means to be discriminated against. We can turn that around, now, can't we? People all over the world are being targeted and even massacred because of their faith, and you object to making a pizza? Why are we even having the discussion of what freedom of conscience means in a just society on this level?

Homosexuality is not an idea, it is an indivisible aspect of a person. Granted, there are churches that have a hard time accepting that, but they are going to have to get around to dealing with it eventually. Mind you, for the same reason I don't think it should be allowed to refuse to serve someone who wears a turban, or a Star of David, or a habit. But my usual position is that the rights of the individual trump the rights of the corporate.

Gay marriage is fuzzy. Homosexuality is not an idea, clearly. At the other extreme, support for a same-sex marriage ballot initiative is an idea. What is same-sex marriage itself—discrimination against the person or the idea? As noted, I'm okay with laws here—I think it's more person than idea—but we should notice when the ground moves from black and white to a a shade of gray, even if it's closer to one side than the other.

As a thought exercise, consider the other situations I may decline to bake a cake. There are some protected cases, but mostly you can sell or not sell on whatever grounds you like.

There is, for example, no question that I can refuse to bake a cake because I think a given customer is a jerk. I can refuse to bake a cake because I think a customer should not get married to someone. This could be based on an idea. I might object, for example, to a twelve year-old girl getting married—legal in some states, with parental permission. (Honestly, if I ran a bake shop, I think I might well refuse to bake a wedding cake for a child bride, out of some vain hope that this might bring them up short and force a reconsideration. How about you?) I might feel similarly about first cousins, or, say, legal first cousins whose fathers were identical twins(1). I can bring my perception of their morality into it directly—no cakes for slumlords, investment bankers, meat-eaters, smokers, litterers, porn stars, and even, perhaps, porn stars who specialize in anal sex. All this is legal under current law. Should it be? Is it utterly different that one is black and the other white?

But I'm still stuck on the fact that stories like those of the wedding cake maker and the pizza parlor have set the stage for discussions of freedom of religion at this small, petty level of who you don't want to have to deal with -- who you want to exclude from your life.

Well, obviously I'm totally in agreement there. But the law is not about proportionate morality. Anyway I might get small-minded too. I'd be inclined to not bake a cake for people who didn't want to bake a cake for gay people.

Sue me. Or don't. I'm confused.

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1. In Ada or Ardor it's different legal fathers but the same actual father, and the mothers are identical twins—so full genetic brother and sister. Incidentally, refusing to bake a cake for a child bring might be ruled impermissible as age discrimination.

>421 timspalding: At the other extreme, support for a same-sex marriage ballot initiative is an idea.

So was Loving vs. Virginia. And frankly, it's not at all "fuzzy" to me. Marriage is an integral part of the social structure. Our institutions are built on marriage as the primary recognition of the state of "family" because two otherwise unrelated people. It's not fuzzy at all. It's a legal reality.

>419 timspalding: they are within their rights (in most states) to refuse services to Republicans or Democrats, and in hiring too.

I don't know what they might or should have the legal right to do, but I think it would be a disaster and a half if any significant number of people started doing so.

So was Loving vs. Virginia. And frankly, it's not at all "fuzzy" to me. Marriage is an integral part of the social structure. Our institutions are built on marriage as the primary recognition of the state of "family" because two otherwise unrelated people. It's not fuzzy at all. It's a legal reality.

We agree that bakers must bake cakes for gay people. Political campaigns are different, aren't they? You're not actually saying that a baker must bake a cake for a ballot initiative they dislike, or a candidate they dislike, even if the dislike is about their stance on gay marriage, are you? Conversely, does that mean no one may legally sell a cake or rent space to a campaign to declare marriage as between a man and a woman?

I don't know what they might or should have the legal right to do, but I think it would be a disaster and a half if any significant number of people started doing so.

Meh. This has largely already happened against conservatives in journalism and academe. No doubt there's some liberal comparandum. Nor am I entirely against it as a method. If someone applied to me who was an activist against same-sex marriage, and especially if they were on record mouthing standard objections to gays raising children and so froth, that would weigh heavily against them. I'd hardly be the only staff member who found that startlingly offensive. The tension of it would rip the office apart. Things are somewhat different in a big, "professional" office than a close knit small business.

>424 timspalding: Political campaigns are different, aren't they? You're not actually saying that a baker must bake a cake for a ballot initiative they dislike, or a candidate they dislike, even if the dislike is about their stance on gay marriage, are you?

I think this is somewhat artificial. In my experience, the business person is always conscious of the distinction between their personal beliefs and their business policies. The two are often in alignment, but they are not interchangeable. As a result businesses tend to express their values in positive actions---they sponsor the little league teams in their neighborhoods, donate to their church charities, underwrite their favorite programs on the public radio station, and even make donations or host parties for local candidates (although that last is much more rarely done as a business, rather than as a person, for a multitude of reasons).

What they don't do is go around making blacklists of people and/or situations and then make a public statement out of it. Mostly because whatever might be gained by taking their moral stand usually does not make up for the cost in terms of the customers and potential customers they make uneasy, or even lose.

There's a very grey line between discriminating against a person (not happened in the cake case, was a former customer and remains so for non-decorated items) and refusing a service because it's your business and you don't have to sell something if you don't want to. Personally I think businesses should have the right to say we don't want to sell that service. But they have to be very careful about WHY they do so. And to uniformly do so - not to sell gay marriage cakes to anyone.

If they'd refused to bake a 'Long Live Hitler' cake, would there be any outrage? Why is that different?

>426 reading_fox: One difference is that refusing to bake that cake would be worth going to jail for.

If they'd refused to bake a 'Long Live Hitler' cake, would there be any outrage? Why is that different?

If they refused to bake a cake for a black couple getting married, or a mixed-race couple getting married, would that be okay?

>426 reading_fox:

Being a Nazi or a Christian is a matter of political (in the broadest as well as narrow sense) opinion, expressed through arbitrary political thought and action. Being gay or black or female is a matter of biology, something gays, blacks or women can't change or help "expressing" i.e. being, even when they are "passing". (Passing is superficial, being isn't.)

This is why insults to sexual orientation, gender, race are worse--radically, fundamentally worse, orders of magnitude and at an entirely different level worse--than insults to politics and faith.

The people of Ireland seem to have got past the whole idea that same-sex marriage is somehow a blow against their faith.

http://www.cnn.com/2015/05/23/europe/ireland-referendum-same-sex-marriage/

>429 LolaWalser: "Being a Nazi or a Christian is a matter of political (in the broadest as well as narrow sense) opinion, expressed through arbitrary political thought and action. Being gay or black or female is a matter of biology, something gays, blacks or women can't change or help "expressing" i.e. being"

I'll let slide the fact that you've grouped Christians and Nazis together to address the more fundamental issue here: for Christians, being a Christian emphatically isn't an "arbitrary thought or action." Rather, being a Christian is an essential part of a person's core identity -- being born again in baptism by water and the Spirit, born unto new and eternal life, involves an existential change of the entire person.

This is why creed is commonly found side-by-side with skin color, ethnicity, sex and/or gender, and sexual orientation and identity in the laws that protect civil rights and prohibit discrimination.

You may not believe that being Christian is a core part of a Christian's identity, but that doesn't change the fact that for Christians, it is a core part of personal identity; and you don't get to decide for other people what constitutes their identity.

>431 nathanielcampbell: I'll let slide the fact that you've grouped Christians and Nazis together

As you should. Nazis were brought up by reading_fox in >426 reading_fox:, who asked for people's responses.

>432 southernbooklady: A well-played effort to avoid the fundamental issue.

>433 nathanielcampbell: A well-played effort to avoid the fundamental issue.

Well you know me -- I'm infamous for avoiding the issue of role of religious identity in modern society.

Matters of biology and matters of conviction are perhaps different categories of identity, but on the whole I'm not inclined to construct a rigid hierarchy out of them. In my experience they tend trade off in their importance, depending on one's immediate circumstances.

I don't give a fuck how "essential" anyone thinks their opinions are: there is a radical, fundamental, irreducible difference between acquired and inborn traits. A gay baby, a black baby, a female baby, would be gay/black/female in any place and any time. Nazism and Christianity are arbitrary traits, arbitrarily adhered to. Even if one is born into a Nazi or a Christian family, at some point one chooses, deliberately, consciously, to be a Nazi or a Christian.

>434 southernbooklady:

It's not a question of hierarchy of importance. There's a categorical difference between biological and cultural traits that makes their equalization impossible, and most comparisons irrelevant.

>431 nathanielcampbell: Rather, being a Christian is an essential part of a person's core identity -- being born again in baptism by water and the Spirit, born unto new and eternal life, involves an existential change of the entire person.

This is why creed is commonly found side-by-side with skin color, ethnicity, sex and/or gender, and sexual orientation and identity in the laws that protect civil rights and prohibit discrimination.

This argument opens up wiggle room for the "right" of a Christian baker or photographer to deny service to a same-sex couple. If such a person is compelled by law to provide service, it would deny the "core identity" of the baker or photographer, an essential element of which is a view of homosexuality as sin. Hence, the baker and photographer would be "victimized" be such a law.

This is how >431 nathanielcampbell: is able to both support marriage equality (or at least I think he does) and defend the right of denial of service by Christians whose core identity would be disturbed.

However, if one rejects the "core identity" claim, his position vis-a-vis denial of service amounts to a defense of religious bigotry.

>437 theoria:

Legal formulations don't depend on biological fact or on accepting anyone's view of what constitutes "core identity"--that, of course, is nothing but a load of bollocks manipulated to defend religious bigotry, as has been done in multiple threads for a long time now here.

It doesn't matter one whit what X or Y think is a "core identity". What matters is what I've been pointing out--that one is gay/black/female in a radically and fundamentally DIFFERENT way to the way one is a Nazi or a Christian. The law or anyone can make of it what they will--it simply is so, and many people--decent ones anyway--apprehend this difference instinctively.

>438 LolaWalser: ... one is gay/black/female in a radically and fundamentally DIFFERENT way to the way one is a Nazi or a Christian.

I agree wholeheartedly.

>439 theoria:

I thought so!

Given that fully half of American adults change their religion, it's hard to argue that it's a core part of identity.

Obviously, some people think so; but for lots of people "religion" is more a matter of fashion or convenience.

Edited to add: there's also the detail that only a minority of self-declared adherents have more than a vague understanding of the tenets of their faith.

Ok, so maybe there's just a sort of mushy, rotten sort of thing at the core.

I find it interesting that for as much as there's talk of Christianity and the core identity that people profess, there's very little discussion of how core their views on homosexuality are to that faith. For many people (Mr. Spalding among them), it seems to be pretty tangential.

>438 LolaWalser: What matters is what I've been pointing out--that one is gay/black/female in a radically and fundamentally DIFFERENT way to the way one is a Nazi or a Christian.

I agree. More to the point, it is useless and stupid to pretend otherwise. There are aspects of identity that can't be changed, and demanding people be ostracized or repressed on the basis of them does nothing but put you in a state of conflict with the entire group you object to (the state of women in patriarchy being the ultimate example). It won't make such people "not gay," or "not black" -- it only makes the oppressor not realistic.

However, there are things that people believe deeply, to the point where they would not recognize themselves without those beliefs. I suppose that's what meant by "conscience." And I think as a species, as a civilization, we are better off respecting a person's conscience, just as we respect their physical person.

>444 southernbooklady: However, there are things that people believe deeply, to the point where they would not recognize themselves without those beliefs. I suppose that's what meant by "conscience." And I think as a species, as a civilization, we are better off respecting a person's conscience, just as we respect their physical person.

Still, we (as a species, as a civilization/society) can't treat claims of "conscience" as an unlimited "GET OUT OF JAIL FREE" card.

Suppose that I sincerely believe that I AM THE EMPEROR OF ALL SPACE AND TIME and - further - that (therefore) MAN'S LAWS DO NOT APPLY TO ME.

Is society under obligation to respect such a sincere belief? How does a society evaluate such claims?
And a LOT of supernatural claims look just like that....

>445 AsYouKnow_Bob: Still, we (as a species, as a civilization/society) can't treat claims of "conscience" as an unlimited "GET OUT OF JAIL FREE" card.

Oh, absolutely. Which is why I draw the line at honoring the dictates of one person's conscience at the expense of hurting other people. A Christian may well believe that homosexuality is immoral, but our tolerance of their freedom to think this stops at the point where they start treating homosexual people badly.

>444 southernbooklady:

I'm not clear on what you mean by "conscience", but as long as we're talking about average sane individuals (i.e. all who don't suffer from some organic impediment to understanding), anyone's "conscience" will be expressed and expressible in a bunch of opinions. In contrast, race, gender and sexual orientation exist before and beyond any way we have of expressing them through opinion. They are biologically BASIC. (And their basicness has nothing to do with whether they are considered, by anyone, "core" or whatever to anyone's "identity" or whatever.)

And, no, for my part I absolutely refuse to bow down to anyone's "conscience" that consists of oppressing people--theoretically and/or practically--for their basic biological traits. I think that's vile. I think it's uncivilized, I think it's immoral, and I KNOW it leads to actual crime.

Evidence that "conscience" or "core identity" is implanted (and apparently not all that well at the moment):

"... Diarmuid Martin, the archbishop of Dublin, said it showed the church needed to reconnect with young people to regain its traditional cultural standing and moral authority in Ireland. . . . The archbishop personally voted no, arguing that gay rights should be respected “without changing the definition of marriage”. “I ask myself, most of these young people who voted yes are products of our Catholic school system for 12 years. I’m saying there’s a big challenge there to see how we get across the message of the church,” he added." http://www.theguardian.com/world/2015/may/24/ireland-same-sex-marriage-dublin-ar...

In other words, the perpetuation of a traditional view of marriage among the younger people depends on better indoctrination of children.

The case is complicated by the fact that a photographer effectually accepts a commission (to create a work of art) when agreeing to photograph an event. Historically, it has always been the commissioner who is at the mercy of the talent. Artists have freely accepted or refused commissions for centuries. Commissioners have happily paid for their work of art, or gone on to find another artist who will say, "yes."

Had the photographer simply refused to perform the service without citing any reason for saying "no," I believe there would have been no grounds for a lawsuit as the artist's defense is simply, "I refuse commissions all the time."

Of course, determining exactly what the commission entails ahead of consenting to perform it is the responsibility of the artists when they're solicited. If they prematurely agree to a commission and only later discover there is something they can't do or won't do, then they should be compelled to honor the implied (or actual) contract, either personally or by procuring talent who can/will.

Yet, I can imagine a situation when this opinion could become a perversion -- when a model agrees to pose for a "nude study," something s/he has agreed to do for other artists many times in the past, then only later is informed that the "study" requires him/her to pose in a pornographic manner, perhaps involving another model. What then? Must s/he be compelled to honor the commission s/he agreed to? Or is the nature of the misunderstanding sufficient that the model should not be compelled to do so? Forcing the talent to procure a substitute might possibly be illegal. Is the commissioner's "free speech" then infringed? I wouldn't want to have to decide that scenario!

In the original case, it became a state case because both parties made a federal case out of it.