The Dark Side of the Gay Rights Movement

Just yesterday, in Elane Photography v. Willock, the New Mexico Supreme Court issued a most unfortunate ruling on the application of the New Mexico Human Rights Laws to a Christian photographer, Elaine Huguenin, who refused, on religious grounds, to photograph the wedding of a lesbian couple. The decision of the Court was unanimous (with one misguided concurrence), and it shows the sorry state to which the human rights laws have fallen in their treatment of public accommodations.

In this case, the New Mexico Human Rights Act (NMHRA), adopts (as is typical in these instances) a very broad definition of what counts as a public accommodation subject to its general non-discrimination laws. Thus, the term includes, “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.”

There is, in my view, no doubt that this definition covers Elane Photography, the small husband-and-wife photography firm hauled before the court. And that is just where the problem begins. The traditional account of a public accommodation, derived from the early English Law, was limited to those organizations that had some degree of monopoly power in a particular market. This was intended to deal with situations where, for example, only one firm could get you from London to Oxford, or only one inn was available in Reading. At that point, a refusal to deal could not be offset by going to another provider.

The current definition of a public accommodation, however, covers all sorts of competitive businesses. As they well knew, Vanessa Willock and Misti Collinsworth — the lesbian couple in this case — had access to plenty of other firms that were interested in their business. Indeed, it is highly unlikely that the couple would want to have hired a photographic team that was morally opposed to the ceremony. There is, alas, in much of the modern law of public accommodations a foolish assumption that the services in question are purely transactional, like withdrawing money from an ATM machine or getting a grocery cart through a supermarket line. But these arrangements are, to some degree, intimate and some measure of chemistry is needed. Willock and Collinsworth had lots of alternatives, so why force the issue at all? Or, to put the question the other way: could Willock and Collinsworth have been hauled into court if they refused to hire Elane Photography because its owners were opposed to gay marriage?

Indeed, from the sketchy facts of this case it appears that the couple set up a test case on the reach of the NMHRA. When Huguenin refused to take the business on religious grounds, the couple called back and asked for information about wedding shoots without disclosing that it was for a same-sex ceremony. Once she gave her standard rates, all questions of proof were resolved. What was also resolved, I fear, is that the couple wanted to have the right to employ Huguenin, but not to employ her—which may explain why Willock waived attorneys and was not granted monetary or injunctive relief. What was at stake was the precedent.

In dealing with this issue, Huguenin raised serious questions of whether the duty to serve violated her constitutional rights to freedom of speech and freedom of religion. The New Mexico Supreme Court brushed these issues aside, on the ground that her only duty was to supply her standard services. She was not forced to profess beliefs that she did not hold or to refrain from expressing those that she did hold. But that consolation prize does not explain why there is any reason for this forced association in the first place. And it is always dangerous business for the courts to weigh the strength of private interests against the supposed interests of the state.

The ACLU, in its support of the decision, noted that, “when you open a business, you are opening your doors to all people in your community, not just the select few who share your personal beliefs.” That is true under the terms of the public accommodation law, but there is no explanation as to why this should be the case. The simple response here is that Huguenin did not open her doors to all people in her community — she only opened them to those with whom she wanted to do business. It is the law, not her, that imposes the fundamental obligation — and it does so at great cost to the party who is forced to supply the service, all in order to generate a symbolic benefit to those who could easily have had their needs met elsewhere in the market.

The concurring opinion of Judge Bosson expresses some uneasiness with the basic decision, noting the dangers of forced speech in the flag salute cases during the Second World War. He follows that up by noting that in 1967′s Loving case the Supreme Court struck down Virginia’s anti-miscegenation law. That opinion should be heartily welcomed by libertarians on the ground that it sweeps aside an odious state restriction on the freedom to marry, which was supposedly justified in terms of the racial stability and harmony that it created in Virginia. But, in reality, it was an ugly manifestation of state monopoly power in withholding a license.

Bosson then argues that the move from Loving to the public accommodation provisions of Title II of the Civil Rights Act of 1964 is a short one, given that these laws declared “invidious“ all discrimination, whether done by the state or through private decisions. It is here that he goes wrong in dealing with the issue. As I argued recently in my Hoover column on The Butler, it is one thing to use the power of the state to counteract private threats of force or the state’s unwillingness to supply key essential services. It’s quite another to use it to regulate individual, voluntary transactions with readily available substitutes. Title II properly functioned as a counterweight to local monopoly. It should not be extended this far.

Times have, to say the least, changed since Title II was passed in 1964. Now the power runs in the opposite direction. Today, Huguenin is the isolated minority while Willock and Collinsworth hold all the powerful political cards. No longer do public accommodation rules protect those who are unable to protect themselves. Now it allows those in the politically dominant faction to impose their wills on minority groups that cannot defend themselves through the political process.

It is perfectly consistent to want to protect gay marriage and to want to strike down the New Mexico Human Rights Act. Gay marriage advances freedom of association — to which the broad application of the NMHRA is a massive affront. This situation should change promptly.  So let us hope that the Supreme Court takes this case and keeps its wits about it by reversing this most unfortunate decision.

  1. Miffed White Male

    It’s getting harder and harder to hide from the truth that this country has morphed into an outright fascist dictatorship.

  2. Tom Meyer
    Richard Epstein:

    Today, Huguenin is the isolated minority while Willock and Collinsworth hold all the powerful political cards. No longer do public accommodation rules protect those who are unable to protect themselves. Now it allows those in the politically dominant faction to impose their wills on minority groups that cannot defend themselves through the political process.

    Well said, professor.

  3. Noah Pology

    My considerable experience with and among gays as well as those who consider themselves sympathetic to their various causes reveals their inability to get beyond first-stage thinking and not understand the consequences of the positions they support. So, before the gay activists and their friends start high-fiveing  each other over this decision, I would have them contemplate this scenario: The Westboro Baptist Church contacts a printing business owned by someone who is openly gay, for the purpose of having signs, t-shirts and bumper stickers made with the phrase “God Hates Fags”.

  4. Tom Meyer
    Noah Pology: My considerable experience with and among gays as well as those who consider themselves sympathetic to their various causes reveals their inability to get beyond first-stage thinking and not understand the consequences of the positions they support.

    That’s because they’re mostly Leftists.

  5. Hydrogia

    We reserve the right to refuse service to anyone, unless you have a gun.

  6. Guruforhire

    Coexistence requires in fact coexisting.

  7. Western Chauvinist
    Tom Meyer

    Noah Pology: My considerable experience with and among gays as well as those who consider themselves sympathetic to their various causes reveals their inability to get beyond first-stage thinking and not understand the consequences of the positions they support.

    That’s because they’re mostly Leftists. 

    I like and respect you, Tom, I really do. But, this is exactly the consequence we traditionalists were predicting, and you were wishing away with the libertarian’s characteristic blindness to the totalitarianism of the Left, now in power in this country. 

    When libertarians insist we treat unlike things alike, for the sacred, omnipotent principle of “liberty,” eventually someone’s freedom will have to give way to someone else’s. An unborn child’s right to life must necessarily give way to a woman’s “right to choose.” And a traditionalist’s rights of conscience must give way to a lesbian couple’s right to hire the traditionalist’s “public” services.

    It’s been said before, but it bears repeating. We can have SSM or religious freedom. Not both.

    You and others have chosen ceremonial/legal validation of gay relationships (no one was prohibiting the relationships) over our freedom of conscience. 

  8. MJBubba

    There was an earlier discussion of this topic on the member feed at a post  by C.U. Douglas:

    http://ricochet.com/member-feed/The-Saga-Continues

    Edited to say it has been promoted to the main feed now:  http://ricochet.com/main-feed/The-Saga-Continues

    National Review has a column on their website by Ryan Anderson that focuses on the religious liberty aspect and has a lot of links on backup info:

    http://www.nationalreview.com/article/356539/clashing-claims-ryan-t-anderson

  9. MJBubba
    #3  Noah Pology: My considerable experience with and among gays as well as those who consider themselves sympathetic to their various causes reveals their inability to get beyond first-stage thinking and not understand the consequences of the positions they support. So, before the gay activists and their friends start high-fiveing  each other over this decision, I would have them contemplate this scenario: The Westboro Baptist Church contacts a printing business owned by someone who is openly gay, for the purpose of having signs, t-shirts and bumper stickers made with the phrase “God Hates Fags”. 

    It would not work that way.  The Human Rights law specifically names sexual orientation as a protected class.   To avoid the protection for religion, a gay printer could easily satisfy the State Human Rights Commission that he is willing to provide materials to lots of Baptists, just not these highly-offensive ones.

  10. Scarlet Pimpernel

    What free speech rights to the photographers have? May they wear t-shirts declaring that they disapprove of gay marriage and they are only there because Big Brother is forcing them to work?  How about one that criticizes gay marriage, or President Obama, or, even, one that suggests that homosexuality is immoral?  Would the law say that they may not proclaim their views if it makes others uncomfortable?

    And what about the quality of their work?  How can the state ensure that they try to do their best?  What if they only do a half-ass job?  And how can one prove that they messed up intentionally, rather than by accident, if the pictures don’t come out well?

    What if they’re late for the wedding?  Will the assumption be that they were late intentionally?  How to prove it? Etc.

  11. Caleb Doxsey

    This is not the same as when Boston businesses routinely posted signs saying “Irish need not apply.”

    FWIW this never actually happened.

    Evidence from the job market shows no significant discrimination against the Irish–on the contrary, employers eagerly sought them out.

  12. KC Mulville

    From the concurring opinion: 

    That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. [...]In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.

    It is astonishing what a failure this is.

    Is the legal imagination so limited that the only way to address racial discrimination is to pass laws so broad that they inevitably trample religious beliefs?  Frankly, we have lawmakers who can’t write a law. 

    The purpose of the public accommodation law was to penalize people for racial discrimination. Normally, refusing to serve a customer would have been penalized via the marketplace; but because that refusal was such an inflammatory racial insult, lawmakers used law as a moral blunderbuss. Until then, a business owner had the right to refuse service, but because those business owners didn’t exercise their rights properly, the lawmakers summarily took the right away. 

    As if the state can take rights away. 

    They resolved the racial conflict. but because a customer’s “right to service” was a useful fraud, we find ourselves with yet another conflict.

  13. Larry3435

    In my comments to the earlier post on this subject, I argued that there is nothing out of the ordinary about this decision.  This is exactly how anti-discrimination laws have been enforced for decades.  That said, I have a lot of sympathy for the Professor’s argument, which essentially asks for a “de minimis impact” exception to such laws.  Which makes sense.  This is not the same as when Boston businesses routinely posted signs saying “Irish need not apply.”  This was, clearly and in the tradition of Rosa Parks, a manufactured dispute to make a point.

    But, it still gives me some pause to think of the qualified white (or Asian) male who gets rejected for college admission under some affirmative action program.  Is it sufficient answer to say that he could easily attend another college?

  14. Knotwise the Poet
    Larry3435: 

    But, it still gives me some pause to think of the qualified white (or Asian) male who gets rejected for college admission under some affirmative action program.  Is it sufficient answer to say that he could easily attend another college? · 14 minutes ago

    Depends- private or state school?  

  15. Guruforhire

    I generally put most gay activists into the same box of small minded malicious jerks as the westboro baptist church.

    Same great hate now with sprinkles.

  16. Randal H
    Western Chauvinist

    I like and respect you, Tom, I really do. But, this isexactlythe consequence we traditionalists were predicting, and you were wishing away with the libertarian’s characteristic blindness to the totalitarianism of the Left, now in power in this country. 

    Libertarians aren’t interested in totalitarianism from any political side. Free association (including business transactions) is an essential part of liberty. In a free market, you should be able to serve or decline to serve anyone for any reason you choose, understanding that there may be business impacts from that decision.

  17. Douglas

    “The dark side of…”

    What was ever bright about it?

  18. Tom Meyer
    Western Chauvinist

    I like and respect you, Tom, I really do. But, this isexactlythe consequence we traditionalists were predicting, and you were wishing away with the libertarian’s characteristic blindness to the totalitarianism of the Left, now in power in this country. 

    WC,

    • Kind thoughts appreciated.

    • Just to be clear, I’ve never supported SSM as a libertarian.  My support with it is consonant with my libertarianism, but that’s not how I argue for it.  As we’ve seen over the last few years, libertarians differ greatly on this subject, and I don’t think we can say that there’s a “libertarian position on it.”
    •  The only way in which I could be said to have enabled the Left on this matter is by saying that I support SSM in principle.  I have never had the opportunity to vote for directly SSM, have not donated money to SSM causes, nor has the subject ever figured into my voting for politicians (largely because I don’t think it’s actually that important).
  19. Tom Meyer
    • I am opposed to SSM being decided by judicial decision; popular ballot or, preferably, state constitutional amendments are the only appropriate ways to handle this both for small-d democratic reasons and because it’s much easier to build in protections that way.

    • I’m fairly certain I’ve said this before but — as Ricochet’s search engine is not yet the envy of the world — I’ll just say it here: I would not directly support SSM legislation that did not have protections for religious/conscience dissenters.  If I had to choose between extending marriage to homosexuals and forcing fellow Americans to violate their consciences, I’d choose you every time.  If that means I can’t support any particular instance of SSM of legislation, so be it.  That in no way affects — nor should it affect — my thinking on whether or not SSM itself is a good policy.
  20. Bob Wainwright

    As I said in the previous discussion on this: The court had an easy out on this one.  They could have simply made a distinction between a PLACE of public accomodation, such as a store or restaurant, and a SERVICE performed by a professional or independent contractor for a client.  They could have carved out a “safe harbor” for such a situation.  For example, if an attorney decides not to take a case, the attorney is in a safe harbor where he does not have to justify why he refused to take it, since such a decision is based on all kinds of professional nuances that the courts shouldn’t be second-guessing.  Or if a plumber decides not to take a certain job etc etc.  

    So there’s a world of difference between turning someone away from your store or restaurant because he’s gay and refusing to photograph a gay wedding.   It’s such a huge difference and one that is so apparent and easily understood that one must conclude that this court’s decision is based on nothing more than animus against people who disagree with its enlightened worldview.