25 February 2011

Is Seeing Agreeing?

This morning I received a very interesting comment from someone called "Max Drax" to my previous post about Dallin Oaks' "example" of the New Mexico photographer who violated NM state non-discrimination laws by refusing based on religious objections to photograph a same-sex wedding. I thought the comment was thought-provoking enough that it deserved prominent placement and its own post for discussion, rather than burying it in a week-old comment string.

Max Drax thinks the New Mexico courts were wrong to draw the distinctions they did, and that it was wrong for the law to "force" the photographer "to witness and memorialize something that he fundamentally disagrees with." Apparently, to Max Drax, being forced to "witness and memorialize" something that one "fundamentally disagrees with" is enough to encroach on religious freedom.

I think Max Drax presents a viewpoint that many people hold, one which suggests a view of fundamental rights and liberties profoundly different than that held by many others, including, apparently, New Mexico judges. This time, rather than leading out myself, I'm going to invite readers to comment, and I may chime in at some point later. So here's Max Drax's full comment. Readers, I invite you to respond, and Max Drax, you too.

Now wait...as all good lawyers understand, just because a judge wrote it doesn't make it true (as judges are usually just mediocre lawyers).

The judge says that the photographer's religious views aren't compromised by having to photograph a lesbian wedding. That's nonsense. The photographer cannot photograph the wedding without attending and witnessing the wedding. And in photographing the wedding, she is memorializing the ceremony. Attending, witnessing, and memorializing an event will, in most cases, be seen by most people as supporting that event, and if a photographer is forced to support an event that she disagrees with on religious grounds, by sheer virtue of the fact that she decided to become a photographer, then her religious beliefs have most definitely been compromised.

Let's look at it another way. Say a group of young men want to torture and slaughter a pig. These fellas call up a local photographer, who also happens to belong to PETA, and ask him to take pictures that everyone will keep in order to remember the event.

You're going to say that the photographer's moral beliefs aren't being compromised by forcing her to take such pictures? Sure, he can still hold to her moral beliefs. His internal opinions about animal welfare aren't harmed. But he's still being forced to witness and memorialize something that he fundamentally disagrees with.

At a certain point, you have to ask whether the right to hold a belief gives you any rights at all to make any outward manifestation of that belief. If it doesn't, then the right to hold the belief isn't really a right to anything of worth. After all, it's not like the mind can be coerced anyway. The logical implication of the judge's statements is that the right to religious freedom is simply a right to think certain ways, without ever necessarily manifesting those beliefs in public. But that places no limit whatsoever on the government, because the government can't touch anyone's mind to begin with.

For heaven's sake, any good lawyer would have a field day with that judge's statements. Don't treat them as gospel.


David said...

An interesting comment Max Drax. The problem is that we live in a pluralistic society. Would it tamper with the religious belief's of the Chief Justice if President Obama were to take the oath of Office with his hand over the Quran? Surely not. Does it morally stain the Brethren to not only allow but to provide Tea service to Japanese dignitaries who visit Salt Lake? I think not. Do they believe drinking Tea is against the word of wisdom? yes. does offering someone else the respect of understanding their customs in any way harm your own? no it does not. Are a photographer's belief's altered, changed, impugned upon simply by attending a same-sex marriage? Hardly.

The point you do make is a good one though. Perhaps what elder oaks was arguing wasn't the specific cases so much as he was discussing the fact that those laws shouldn't be there in the first place. Now that is a scary thought.

Daniel said...

There's a flaw with the analogy of the PETA photographer and the pig slaughter. A photographer could refuse to photograph the slaughter independent of personal or religious beliefs. Photographing slaughtering animals is probably not a service that the photographer offers, so the photographer could say no without discriminating. It's like a landscape photographer wouldn't have to photograph a wedding (straight or gay) or a fashion photographer wouldn't have to photograph a private event. None of that is discrimination because the service provider is only refusing to provide a service that he/she doesn't normally provide.

It only becomes discrimination if the service provider is refusing to provide a service that he/she would normally provide but won't because of the customer's orientation, gender, race, religion, etc. There is a simple way for a photographer to avoid shooting a gay wedding, and that is if that photographer refuses to shoot any wedding.

I am of the opinion that if you are going to go into a business, you have to go into that business knowing that you are going to provide your business to the public. If you aren't willing to do that, then don't go into that business. Don't own a hotel if you don't want certain people sleeping there. Don't own a restaurant if you don't want to serve food to black people. And don't photograph weddings if you're going to be uncomfortable at some people's weddings. (because they are gay, pregnant, old, or any other reason).

You can discriminate in the services you provide, but not in the people you provide them to.

J G-W said...

I guess I actually agree that a photographer shouldn't be forced to photograph an event he or she doesn't want to photograph.

And frankly, if it had been my wedding, I would have wanted a photographer who was genuinely happy to be there. After all, a happy photographer is more likely to take the kinds of pictures I want to be taken to commemorate an event with that kind of emotional significance.

But I also don't see how photographing a wedding necessarily implies approval for the wedding. If that is true, does that mean all the journalists who are photographing violence in Libya and Egypt right now approve of the violence? Poppycock.

Also, I do think it would be wrong for a venue provider -- someone who rents space to the general public -- to discriminate against same-sex couples who want to use their venue.

Scott N said...

Since the issue of the New Mexico photographer first came up during he Prop 8 brouhaha I've been unsure how I feel about it...

Most of the other cases are pretty clear-cut. Catholic Charities used state funds as part of its operational budget, and so by accepting those funds it was entering into a relationship with the general public. The Ocean Grove Methodists accepted a tax exemption in exchange for allowing public use of their facility. The Boy Scouts in Philadelphia were using a government-owned building for their meetings.

But the photographer was just an individual--a privately owned business. I'm still not entirely sure how I feel about a business being forced to provide a service to customers in a situation that goes counter to the business owners' beliefs.

As I understand it, a white supremacist restaurateur could probably be successfully sued on discrimination charges if he refused to serve blacks. And his refusal would, without question, be discrimination motivated by bigotry. But if he owns the restaurant and the property, I'm not sure he should not have the right to serve (or not serve) whoever he wants. He also deserves to be held up to the light of public scrutiny, and to be subject to boycotts and lost business because of his bigotry. I'm just not convinced that he deserves to be subjected to civil penalties or forced to serve someone he doesn't want to serve.

Possibly I've missed something or not considered some nuance that would change my mind. I'm more than willing to be enlightened if so.

Pablo said...

Part I:

As all good lawyers understand, just because an anonymous commenter wrote it doesn’t make it true. Or logical. I can’t accept as credible a comment that offers false analogies and misses the fact that the New Mexico case was decided by the state’s Human Rights Commission, and ultimately affirmed by a panel of appellate judges. Here’s a link to the Decision and Final Order of the New Mexico Human Rights Commission: http://www.law.georgetown.edu/moralvaluesproject/News/documents/ElainePhotographycase.pdf

While people may disagree with the outcome, this wasn’t just some rogue outlier making an unreviewable determination. Flippant dismissiveness and mischaracterization of the judicial branch of government is not just annoying. It’s disturbing. The statement that “judges are usually just mediocre lawyers” is self-serving and completely unsupported by any objective evidence. But I guess in the alternate universe in which Max Drax’s comment was written, facts aren’t necessary to support one’s arguments.

At a certain point, you have to ask whether using false metaphors to support an argument is just an exercise in the ridiculous or an expression of willful ignorance. Certain types of locations and services in the realm of commerce are considered public accommodations which are subject to a specific kind of legal analysis. Lawyers bright and dull alike can disagree with the existence of that body of law and the kind of analysis required. But to change it, you have to convince a majority of the appropriate appellate court whose members are duly authorized to interpret the validity and application of the laws in that jurisdiction (federal or state). That’s how the rule of law works.

I understand John’s (J G-W’s) practical point. I wouldn’t want to have to force the photographer to take pictures of my wedding either. But this isn’t precisely the point of what happened here. Again, reasonable minds might disagree as to whether the law of New Mexico is correct on this point, but what the law requires is even-handed treatment of those seeking services being made available to the public. If a photographer wants to make a living entering into contracts for photographic services only with private event venues which are not made available to the public, or operates a distinctively private service or establishment not available to the general public, he or she is free to do so.

Pablo said...

Part II:

A professional offering his or her services to the public is not permitted to serve those he or she likes and refuse to serve others who fall into demographic categories the law designates. If he or she does so, there is a consequence, usually in the form of monetary damages and recovery of reasonable attorney fees. The courts don’t force photographers to actually take the photographs, but they attempt to provide reasonable compensation for proven acts of discrimination. Business owners who offer their premises or services to the public have the protection of our system of laws, and so do those who pay the proprietors of those premises or services. It’s the public-private distinction that matters under the law.

I also have some questions for Max Drax: Is the taking of photographs part of the New Mexican photographer’s religious beliefs? If yes, how so? If not, how are her religious beliefs relevant to a public commercial transaction under New Mexico law? It seems to me that this is a matter of commerce, not religion. But I’m willing to consider alternative viewpoints. Exactly how are the photographer’s outward manifestations of religious belief being infringed? Doesn't she have the freedom to manifest her religious beliefs in a wide variety of venues, both public and private, that do not come into conflict with her duties as a citizen to uphold the laws regarding non-discrimination?

Even staunchly conservative courts have placed limits on the manifestations of belief where those manifestations are in conflict with other laws. In other words, in a pluralistic society founded on the principles of democracy and equal protection under law, expression of belief is not unfettered. Put another way, there is a time a place for everything. Or if you prefer Ecclesiastes: “To everything there is a season, and a time to every purpose under the heaven.”

Pablo said...

Looks like the link to the decision didn't display completely. Here it is again:


Thanks for letting me post multiple comments Rob.

santorio said...

I'd like to ask the photographer if she objects to premarital sex. If so, does she make any effort to avoid providing services to couples who violate this standard? I assume not, if she is still in business. Her inconsistency shows that it wasn't a moral or religious stand that she was taking, it was an illegal, discriminatory stand.

So yes, she can be sanctioned for this discrimination. And no, the government can't make you eat broccoli.

Trev said...

I'm glad that comment was made and that you are devoting a post to it. Actually, that case didn't quite sit right with me, either. Although though I didn't formalize my reasons like MaxDrax, thugh he pretty much got to some of the sources of my discomfort.

I think the "memorializing" meaning is a little stretched, but I also feel like something in the nature of photography makes this case of denying a service a little different from, say, simply selling something.

A large source of discomfort with the case for me is touched on by J G-W. It seems like this couple is baiting the photographer, and this strikes me as disingenuous to the point of weakening their argument.

In an ideal world, perhaps accepting or not accepting such an issue as a photographer shouldn't be an issue. In our un-ideal world, maybe a good transitional route would be to take note of each others' concerns and try not to make each other uncomfortable. Let's not try to dig pits for each other by trying to bar gay marriage or trying to get each other to do things neither of us wants them to do just to make a point.

Santorio, I'm sure the photographer wouldn't get in this kind of trouble if (s)he refused to photograph people having premarital sex. Of course, I will rightly draw flak for this comment because a wedding should be something innocuous, but, again, if it is such a big deal for the photographer, why are they specifically seeking him or her out?

Pablo said...

I was hoping that since you provided a forum for discussion (I've appreciated everyone's comments, btw), that Max Drax might decide to contribute as well. I was also hoping that he would answer the questions I posed, because I honestly want to understand where he's coming from. I'm not trying to engage in bashing. We both have strong opinions, and we may not agree at the end of the day, but this discussion is worth having. It's part of healthy discourse in a civil society.

Based on his comment, I presume Max is a lawyer. Under basic standards, there isn't sufficient support for the assertions he made in his comment. That's what I'm looking for. It seems that he is arguing for a change in the law. To accomplish that, one's position and arguments must be clear and convincing.

So far, it's just crickets chirping from Max's direction. And that is genuinely unfortunate.

Steven B said...

To make a comparison to same-sex marriage it is not enough to slaughter the pig, they must torture it as well?

Sean said...

No one has yet discussed the legality of the example Max offered. Intentional torture of an animal is of course illegal. Capturing that event would then make the photographer an accessory to the crime committed.

It is a logical fallacy to make the comparison at all. What may work better is a Jewish news reporter being asked to cover a story in a butcher house who protests to do so on religious grounds.

Or a counselor trying to impose their moral code on their client because of their drug abuse or sex addiction problems.

I think the problem is less about morality or religious convictions and more about the apparent unethical nature of some people in their profession. If you are in a service oriented business that is just the nature of doing business. You are going to end up doing business with people you may not like.

What the potentially slippery slope is here, is the religious based discrimination of service businesses. I think past history of this country tells us how bad of an idea that is.