12 February 2011

Oaks Rebutted, Chapter One

Someone called "Trev" made an interesting comment on my last post about Dallin Oaks' misrepresentations. He quoted my observation that "those who are not attorneys probably won’t take the time to research the cases (or even know where to find them) or see the distinctions" between what Dallin Oaks claimed and what the truth really was, then said this:

You're right. I don't want to take the time. But I *am* interested. I kept waiting for the substantiation of your claims of misrepresentation to surface, but they never did. Could you educate us readers on the actual details of those cases and what they were? I always question these cases they bring up when they speak, but, as you say, I'm lazy and don't want to take the time to look them up. If you've already done the work, do share, rather than just saying you did it and leaving it at that."

It's interesting that he thought I'd called him "lazy" when I didn't, and then flat-out admitted that he was. Couldn't help chuckling at that.

Truth is, my life is pretty packed right now. Those who follow this blog have noticed I'm not writing nearly as much lately. I've resolved a lot of the conflicts that drove my previously more frequent and lengthy posting, and I have a lot going on personally and professionally which take priority. Result: blog posting drops off a bit.

Part of me wants to say "Trev, if you really are that interested, you should be willing to take the time to look something up!" But maybe he's as busy as I am, that's possible too. So "Trev," I went back and did the research for you and for anyone else in your situation. As often happens, the real story is not packaged in quite the same neat little soundbites used by Oaks. So I'll do a separate post for each of his examples of "threats to religious freedom," one a day for the next week. Any non-lawyer who finishes reading these will not only have my admiration for endurance, but is also likely to get more of an education in the legal realities of "freedom of religion" than they ever would from Oaks' speech.

Okay, here we go. First one.

Oaks: "In New Mexico, the state's Human Rights Commission held that a photographer who had declined on religious grounds to photograph a same-sex commitment ceremony had engaged in impermissible conduct and must pay over $6,000 attorney's fees to the same-sex couple. A state judge upheld the order to pay."

Real story:

The case arose after Vanessa Willock of Albuquerque contacted Elane Photography about photographing her commitment ceremony. Its owner Elaine Huguenin told Willock by e-mail "we do not photograph same-sex weddings," but gave no explanation for the refusal.

The next day, Willock's partner, Misty Pascottini, asked Elane Photography via e-mail if the studio would photograph her wedding. Pascottini didn't identify herself as Willock's partner. Huguenin responded that she would be willing to travel to photograph Pascottini's wedding, and sent her pricing information.

Willock filed a discrimination claim in December 2006 with the New Mexico Human Rights Commission, seeking attorneys fees but no damages.

The Commission heard the matter and decided against Elane Photography because its admitted "existing policy that excludes same-sex couples from its wedding photography services" violated the state's Human Rights Act. That law prohibits a business dealing with the public from making any "distinction in offering or refusing to offer its services" on the bases of race, religion, color, sex, sexual orientation and several other factors. The decision went up to the New Mexico Court of Appeals which affirmed it.

Oaks suggests this was an encroachment on religious freedom. The New Mexico court disagreed. It correctly noted that neither the business nor its owners' own religious beliefs or practices were restricted in any way by the state's law against discrimination. "At most, they have been directed to respect [the couple's] belief system and religious observation. They are not being asked to participate in the observation or to adopt or even defend [the couple's] religious beliefs. They are merely being asked to photograph it, for an agreed fee in the ordinary course of their business."

The New Mexico Court cited an Alaska Supreme Court decision in a similar case brought by a landlord who "refused to rent to roommates of the opposite sex because of the appearance of immorality." The landlord insisted he was not discriminating on the basis of marital status, but even if he was, he was only discriminating based on conduct ("hate the sin, love the sinner," anyone?) and in any case he was exempt from state anti-discrimination laws because he was merely exercising his freedom of religion.

The Alaska Supreme Court disagreed. "When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity." Put simply, your religion doesn't give you a free pass to ignore laws applicable to others who are in the same business you voluntarily chose.

In fact, the New Mexico court found the issues to be so clear that it granted what's called "summary judgment" against the photography business. That's legalspeak for "this isn't even worth having a trial, the result is so clear so here's the ruling right now."

This was such a predictable outcome, based on well-established legal federal and state legal precedent, that it didn't even need a trial. The photography business violated the state anti-discrimination law. Period. Religious belief doesn't get you an exemption, and that's not a new rule. And it's not a "restriction on religious freedom" either. Unless you think that religious bases for defending slavery are valid, because the analysis is the same.

How can I put this politely? Oaks "misrepresented" this case when he cited it as an example of encroachment on religious freedom.

Tomorrow, the equally exciting case of the poor persecuted New Jersey church that refused to let a gay couple use their facility for a commitment ceremony.


Daniel said...

I might add one other point to this story-- it took place in a state, New Mexico, that doesn't recognize gay marriage. I have heard many people use this case as a reason to oppose gay marriage, but the fact is, non-discrimination is a separate issue from gay marriage. It has nothing to do with marriage!

This case would have had the same outcome if there had been no marriage ceremony at all involved, for example, if a gay (biracial, Mormon, Catholic, Hispanic, etc) couple and their children went to a local family portrait photographer and that photography refused to take their family portrait. It is the same sort of nondiscrimination law that protects religious people. I, as an artist, cannot refuse to sell my art to a Mormon simply because he is a Mormon. These laws actually protect freedom, including religious freedom.

Invictus Pilgrim said...

I'm glad you've taken this up, Rob. I look forward to reading your posts telling the "real" story.

Trev said...

Whoo hoo! Thanks! I'm glad you're going to post this.

Ha ha, I enjoyed the analysis of my comment.

Gunarm Dyne said...

Well now, heaven forbid that a private business can decide who it conducts its business with. While this isn't a religious rights issue, it's more than definitely a civil rights issue as the only entity that government anti-discrimination laws can truly apply to are the government.

In a truly free society, any private business that operates on contracts with other private customers would not have the government involved in any way (unless the completed contract was violated somehow) and the business would have the right to discriminate against anyone they wish.

Brent said...

The libertarian in me tends to sympathize with Dyne's view: I don't see the goal of eliminating discrimination as adequate justification for stripping private businesses and individuals of the freedom to refuse to conduct business with whomever they choose.

Assuming they haven't voluntarily made an agreement to the contrary, why shouldn't private businesses have the freedom to discriminate on whatever ridiculous bases they want: race, gender, sexual orientation, shoe size? Market forces already naturally punish this: by refusing service on such bases, they will lose business, not only to the individuals themselves, but to others who will now view them as bigoted. If such disincentives are not enough to dissuade them, then fine. Let them discriminate. I can take my business somewhere else. Live and let live.

I guess I question whether such anti-discrimination laws solve anything. They do little to combat the prejudices that lie at the root of the problem; rather, by stripping freedom from people who discriminate, it turns them into martyrs which only entrenches them in their position.

Rob, one other point from this case: the photographer argued that producing a photograph is a speech act, and that photographing a same-sex ceremony would represent a speech act incompatible with their religious belief which disapproves of same-sex wedding-like ceremonies. Hence, the photographer argues that the NMHRC is imposing compelled speech, violating their First Amendment freedom of speech right. I tend to think this constitutional argument might have some merit, and was wondering if you could address that?

max.drax said...

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.

bradcarmack said...

Thanks for this analysis, Rob.