Lawyer for New Mexico photographer: Forcing her to work at a gay wedding violates her right of free expression

posted at 4:21 pm on August 23, 2013 by Allahpundit

The comments to Jazz’s post this morning have been raging all day so I figured there’d be interest in hearing directly from her spokesman. Most people, me included, approach this issue from the standpoint of free exercise of religion. If she disapproves of gay marriage because of her faith and the state tells her to ignore her faith and work the wedding anyway, well, then, free exercise ain’t as free as one would think. But that’s probably a nonstarter; read Dale Carpenter’s post at the Volokh Conspiracy to see why. He, Eugene Volokh, and the Cato Institute filed an amicus brief in this case siding with the photographer — but free exercise was one of their minor arguments. Under Supreme Court precedent, as long as a law isn’t deliberately targeted at religion, you can’t plead free exercise if it happens to interfere with your religion. The New Mexico Supreme Court found that the state’s antidiscrimination law isn’t targeted, so that’s that.

But what about a free speech claim instead? Photography isn’t just any ol’ profession, says Carpenter. It’s an art, and art necessarily involves expression, in which case we have a problem. Rod Dreher elaborates:

There is simply no way not to see photography as an art. The New Mexico court disagreed. New Mexico does not have same-sex marriage; the ruling was not on marriage law, but anti-discrimination law. Still, the importance of this ruling is that it’s another example of courts establishing in jurisprudence that homosexuality is exactly like race for purposes of non-discrimination — that is, that the only reason to discriminate against homosexuals is irrational animus, as the US Supreme Court has been holding.

I would have granted First Amendment protection to an artist wishing to discriminate on the basis of race, or any other protected category. To compel a writer, photographer, painter, composer, or what have you, to put her talent into the service of something that violates their conscience is a serious wrong. If a gay photographer believed in good conscience that he could not photograph the wedding of Christian fundamentalists, then I think he absolutely should have the right to refuse, on First Amendment grounds.

When I worked as an editorial writer for The Dallas Morning News, from time to time I had to write editorials taking a position I didn’t believe in, because that was the board’s decision. That was fine; it was part of the job. But I told my editor early on that I could not, in conscience, write an editorial supporting abortion rights, which the paper backs.

Maybe that’s a potential compromise position for the U.S. Supreme Court. Mundane professions have no constitutional exemption from an antidiscrimination law, but a profession that involves a viewpoint — literally, in the case of photography — gets First Amendment protection. That’s not a ruling that’d satisfy everyone, but it’d at least vindicate the principle that you can’t be compelled to adopt another’s perspective, even if you’re being compensated for it.

I’m honestly surprised that there’s no serious movement afoot to pass a constitutional amendment that would build a broader right of religious conscientious objection into the Free Exercise Clause. There’s massive support for the photographer’s position, per Rasmussen’s poll last month. Social conservative leaders like Mike Huckabee occasionally mention the Federal Marriage Amendment, but that’s going nowhere given solid opposition on the left and federalist opposition among the libertarian right. There’d be opposition to this one too, of course — gay-rights supporters would warn that a right of conscientious freedom would lead to people claiming exemption from all sorts of laws, and they’d probably seize the opportunity to push for some sort of offsetting constitutional amendment for gay marriage. Still, though: 85 percent support for the photographer in the Ras poll. And the more people learn the specifics of this case, how the gay couple sued her even though they’d found another photographer and then won attorney’s fees from her(!) on top of it, the more sympathetic they’ll be. This is where the political action will be come 2016 in pushing back against gay marriage, I expect.



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Under Supreme Court precedent, as long as a law isn’t deliberately targeted at religion, you can’t plead free exercise if it happens to interfere with your religion.

So we can’t actually have free exercise of religion, unless the state deems that it targeted religious freedom?

And what frickin’ state is going to put into law: “This is to stop those damned Baptists!”? I mean really, it’s Inanity on Parade. Hey, you can’t actually charge that somebody swindled you, unless they specifically said they were swindling you.

See, the judges are using equivalent effect here. The freedom to engage in contracts is not specifically pointed toward making a sexual orientations second class, but it has an equivalent effect if photographers are allowed to refuse service based on a personal prejudice.

However, to exercise for “free exercise thereof” you need the state telling you that they had the temerity to pass a bill that they CANNOT under the Constitution. What state has ever expressly stated in their legislation the precise motive that will get their law overturned at the federal level?

Do people that stupid even exist–and are we putting them into legislatures?!?

This country gets stupider by the day and overlord sophists who decide our “standing” to challenge them are pushing us there all the time.

I’ve always said, I can handle gays getting married and recognized by the state–I just can’t stand all the STYOOO-PID arguments that get us there.

Axeman on August 25, 2013 at 2:10 PM

Now that is being BAD. I am a gay conservative, which is not an oxymoron. I have friendly discussions all the time with people within my own family about how dumb Obama’s policies just are. I still talk to them. Also, some of my Obama/Democrats in my family are for gay rights, but are against gay marriage.

SC.Charlie on August 25, 2013 at 8:13 AM

I wouldn’t fire you and I might even host your (gay! – I’ve done it before) wedding. On the other hand, if you never ceased to tell me that I got my law degree through ‘luck’ – ‘luck’ meaning that while I studied you were out doing shooters and shagging every dude in town hoping for Mr $$$bags to ride in to your rescue inside his black Ferrari only to be disappointed and, most assuredly, vomit-faced and late to the office in the morning – and, then, once Obama got elected spouted every bloody, nonsensical, BS, ‘profits & earning ratio’, spend more to get rich, 57 states, Austrian is the greatest language!, I have my boot on the neck of the working class and eat the poor, yada, yada, yada, then, you’d be outttttttttttttttttttta there!

:-)

Resist We Much on August 25, 2013 at 2:14 PM

“Rightful Liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.” -Thomas Jefferson

Akzed on August 25, 2013 at 2:30 PM

Family Terrorized After Teacher Molests Their Son

it emerged that a male teacher molested their 8th grade son and then — unbelievably — six other teachers spoke out against the 15-30 year sentence the man received.

“Neal [Erickson] has plead (sic) guilty for his one criminal offense but he is not a predator,” Harriet Coe reportedly wrote. “This was an isolated incident. He understands the severity of his action and is sincere in his desire to make amends…”

John Janczewski, the father of the victim … said he and his wife have been threatened and attacked for speaking out against the teachers.

“At one thirty in the morning on a Saturday, I was awoken to a bomb sound going off,” Janczewski said, choking back emotion. “I went to the window to find my garage was on fire and engulfed in flames, my camper and the side of my house… If I wouldn’t have woken up, we could’ve all died.”

The family also had the letters “YWP” and “ITY” spray painted on the side of their house, which Janczewski thinks mean “you will pay” and “I told you.” …

Janczewski said they’re being targeted because they want the six teachers and a board member who sat with the pedophile’s family in court fired.

To top it all off, Janczewski was pained that a church down the road from his house posted bail for their son’s molester.

Akzed on August 25, 2013 at 2:49 PM

These homosexuals think they won this case. In the short term they have… but in the long term the giant called government just got a little bigger, a little more powerful. And in time.. when it wants to it will turn on the gay community as well. It will turn on anyone and everyone because that is what giant abusive all powerful governments do. They are never satisfied because it’s never about gay marriage or getting served cheeseburgers at the lunch counter.. it is about raw power to control with and by force all of our lives.

JellyToast on August 23, 2013 at 5:51 PM

But people who are “riding the giant”, seldom if ever care. And let’s be real, the storybook moral is not useful. Most Nazis weren’t consumed by a rapacious government, but by over-extension and hubris. There are certain groups of people that the giant may never bite.

Equality is not a thing and we are not each other. It is but a goal–a Humean OUGHT–that we should treat each other “as equal” and each other as we treat ourselves. To make the human the equal unit of allocation is Marx’s end vision. We get equal allocation because as the only standard of worth, each of us is worth one human’s allotment of supplies. (The reason for the Humean specification is the discourage avid reductionists from trying to make the case that “equality” is anything that IS. So that people who diatribe against “fuzzy ideas” would need to take stock, or demonstrate “equality” in nature–and they really can’t without partially invalidating the mechanics of Darwinism.)

Axeman on August 25, 2013 at 3:00 PM

Akzed on August 25, 2013 at 2:49 PM

After all, all that teacher did was have sex with the kid–and sex is not the worst thing in the world….

Why are these parents so negative about sex?

(And in stream-of-consciousness riffing that is contemporary liberalism, we slide into how by censuring these parents we are saving the world from the Medieval specter that ever dogs our tracks…)

Axeman on August 25, 2013 at 3:19 PM

But many Christians here believe this is only the case as it applies to sexual preferences, and they would have no problem with these same antidiscrimination laws being used to punish a person who refuses to serve black customers. My problem is with the hypocrisy.

Armin Tamzarian on August 23, 2013 at 5:16 PM

Why would you want to have an ignorant at your wedding?

Why do you want to have glitzy, retouched photography, and a palace and garden to pretend you’re royalty for the day and invite into your “special day” somebody who’s going to mutter “When are they going to pass out the watermelon?”–and the best case is under his breath.

Even if that described everybody in your locality (shouldn’t you move?) is there no one in your family that can take a competent picture–are you suggesting that black photographers aren’t as good as white ones?

Liberals are always making hypotheticals like this.

So you have two points against you. You use stupid liberal hypotheticals–does that type of person even exist in sufficient capacity anymore to pose a problem? (Liberal dogma says “yes”, because it’s the “same thing” as not wanting to photograph gay weddings) And you trot out the Alinskyan saw of “hypocrisy” as well. Check yourself to make sure, you’re not a liberal, or are not easily influenced by liberal tropes.

Axeman on August 25, 2013 at 3:31 PM

I assume this means I can now get service even if I am not wearing a shirt or shoes…

Colony14 on August 23, 2013 at 6:38 PM

Only if you are a member of an approved and protected minority…

Athos on August 23, 2013 at 6:42 PM

Well I’m a transgendered lesbian (love females but trapped in a man’s body).

Nutstuyu on August 25, 2013 at 8:32 PM

Do not ever argue with filth like JetBoy. He is a gay liberal first and a person second. Since he cannot think beyond his sexual orientation and is obsessed with punishing and attacking anyone who doesn’t give him his way based on his sexual orientation, he can’t respond rationally. He is cowering and spinning and screaming to try to blame you for opposing this because he is a desperate, pathetic little shill who is terrified of disobeying the gay and lesbian community.

northdallasthirty on August 23, 2013 at 6:55 PM

Do you mean he is a liberal that enjoys misusing his sexual organs to the exclusion of the way nature intended? As for gay, I dont know very many liberals that are actually happy and joyous. They’re all pretty miserable.

Nutstuyu on August 25, 2013 at 8:37 PM

I wouldn’t fire you and I might even host your (gay! – I’ve done it before) wedding. On the other hand, if you never ceased to tell me that I got my law degree through ‘luck’ – ‘luck’ meaning that while I studied you were out doing shooters and shagging every dude in town hoping for Mr $$$bags to ride in to your rescue inside his black Ferrari only to be disappointed and, most assuredly, vomit-faced and late to the office in the morning – and, then, once Obama got elected spouted every bloody, nonsensical, BS, ‘profits & earning ratio’, spend more to get rich, 57 states, Austrian is the greatest language!, I have my boot on the neck of the working class and eat the poor, yada, yada, yada, then, you’d be outttttttttttttttttttta there!

:-)

Resist We Much on August 25, 2013 at 2:14 PM

I wouldn’t want to associate with anybody gay or straight such as you have described. I would fire such a person ASAP.

SC.Charlie on August 26, 2013 at 7:11 AM

Now that is being BAD. I am a gay conservative, which is not an oxymoron. SC.Charlie on August 25, 2013 at 8:13 AM

When something is obvious, only liars deny it. – Akzed on August 25, 2013 at 1:24 PM

Do you extend your statement to non-gay conservatives who have supported gay rights in the past and present. Three names come to mind, immediately.

1) Barry Goldwater, Mr. Conservative, who said that gays were going to have to fight for their rights.

2) Ronald Reagan, who put his conservative neck on the line when California was about to vote of the Briggs Initiative prop back in the late 1970s. If passed and put in forced gays and lesbian teachers would be fired and banned from the public school systems along with anyone else who publicly supported gay rights.

3) Dick Cheney, who supports gay rights and even gay marriage. Of course he supports his gay daughter. And, I will never forget John Edwards trying smear Cheney in one debate with bringing up his gay daughter and his support for her. Edwards is the definition of a slimeball, as we all learned much later.

SC.Charlie on August 26, 2013 at 7:24 AM

Akzed, Reagan wrote a famous newspaper article opposing the Briggs Initiative. I will let you use Google to do some research on it and Reagan’s reasoned opposition to it.

SC.Charlie on August 26, 2013 at 7:27 AM

Do you mean he is a liberal that enjoys misusing his sexual organs to the exclusion of the way nature intended? As for gay, I dont know very many liberals that are actually happy and joyous. They’re all pretty miserable. – Nutstuyu on August 25, 2013 at 8:37 PM

Nutstuyu, I guess you keep forgetting that NorthDallasThirty is gay. On another board, I believe I can say he and I have come to a meeting of the minds on many issues that confront the gay community.

SC.Charlie on August 26, 2013 at 7:33 AM

SC.Charlie on August 26, 2013 at 7:24 AM

That is known as an appeal to authority. It proves nothing.

Just because Ronny, Dickie, and Barry jumped in a hole doesn’t mean I have to.

Look at em, down there in the hole, at sodomists’ disposal whenever they want to point and say, “Well, they did it!”

Akzed on August 26, 2013 at 8:40 AM

I suspect the original couple did not really want pictures, they wanted to make a federal case. There are billion photographers out there, a lot of them gay who photograph straight weddings…for CASH. They want to make money. If you don’t get along with your photographer, it’s hard to take pictures, and plenty of photographers are advertising to send gay wedding customers their way.

Some photographers want no part of photographing babies, and some are excellent at it. Some don’t want to photograph your pregnant belly…this is popular, but a niche market. Sometimes a customer is so particular and picky you don’t want them as a customer.

There is no lack of photographers for gay weddings – no scarcity – no organized deprivation.

Did someone make money suing? Was there cash to be had? I think we need to take the cash out of “insult” lawsuits. Some of this is a reverse harassment an in-your-face to make other people uncomfortable. There is a litigation racket out there which is how some ornery people make money. I hope someone will sue one of these annoying in your face types and win somewhere, you can’t bully people the way liberals do forever.

Fleuries on August 26, 2013 at 10:38 AM

For the record, the Church teaches clearly that procured abortion is NEVER licit, not even in the case of endangerment of the mother’s health/life. One may NOT intentionally kill one’s unborn child even to save one’s self, just as one may not throw someone out of a lifeboat because there may be too much weight on board.

Oh, BS. The Catholic Church allows termination of pregancies that endanger the mother’s life. Ectopic, for example. Such as abdominal pregancies which can go to term but are terminated usually when they are discovered no matter what the gest. age.

Marcus on August 26, 2013 at 11:53 AM

Citizens of NM should force the judges to have gay sex with queers. What judges, you don’t believe in having gay sex? Well this photographer feels the same about shooting photos of queers. Get my drift azzholes? You liberal pieces of s**t are just asking, no begging, for an all out revolution, and if and when it happens, your names will be on the list.

F_This on August 26, 2013 at 8:54 PM

Should have shot the wedding and then realized that they had forgotten to put film in the camera. Of perhaps have the back of the camera “accidentally” come open and ruin all the pictures. Then they could refund the fee. Both parties would have been put upon. Wasted hours of productivity for the photographers and no pictures for the couple who couldn’t find a willing photographer.

MTinMN on August 27, 2013 at 10:00 AM

Since it seems blatantly unfair to punish a photographer for refusing to memorialize a same-sex wedding that isn’t even legal in NM, the obvious solution is to simply change the law:

http://www.washingtontimes.com/news/2013/aug/27/aclu-stunned-nm-judge-rules-gay-marriage-legal-des/

New Mexico doesn’t have a specific constitutional provision or law that allows same-sex marriages, but a judge said on Monday that prohibiting the unions is a form of sexual discrimination — and by proxy, ruled gay marriage legal.

The American Civil Liberties Union of New Mexico called the judge’s actions “monumental” and unexpected, The Associated Press reported.

AesopFan on August 27, 2013 at 1:01 PM

There is no lack of photographers for gay weddings – no scarcity – no organized deprivation.

Did someone make money suing? Was there cash to be had? I think we need to take the cash out of “insult” lawsuits. Some of this is a reverse harassment an in-your-face to make other people uncomfortable. There is a litigation racket out there which is how some ornery people make money. I hope someone will sue one of these annoying in your face types and win somewhere, you can’t bully people the way liberals do forever.

Fleuries on August 26, 2013 at 10:38 AM

They are getting pretty close to it.

No one person is inconvenienced enough to push back, unless forced to as the photographers were, so they inch their way toward their goal.
Many Supreme Court cases (state or national) are “put up” jobs, where litigants are chosen precisely for the highest probabilility of winning the case (Roe v. Wade is a textbook example); the Left has gotten very, very good at that.

AesopFan on August 27, 2013 at 1:06 PM

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