Elane Photography

A friend of mine, a colleague and excellent photographer who happens to be a defense-of-marriage person posted a status update that erupted into a firestorm of comments on Facebook. His claim was that people like me are “intolerant” of his beliefs.

To those people, I might say disagreement is not intolerance. I’m not asking you to change your beliefs, I only hope that you be tolerant to others theirs. As for the bible, it says many things about marriage, some of which you’d be hard pressed to defend now. Some of “the other side,” you know, love us some scripture too. 😉

But more interesting than that rehash would be the part I find fascinating. In the course of the comments he brought up an interesting case that apparently has been making the rounds:

A same sex couple in Albuquerque asked a photographer, Elaine Huguenin, to shoot their commitment ceremony. The photographer declined, saying her Christian beliefs prevented her from sanctioning same-sex unions. The couple sued, and the New Mexico Human Rights Commission found the photographer guilty of discrimination. It ordered her to pay the lesbian couple’s legal fees ($6,600). The photographer is appealing.

Hmm, at first blush, I side with the photographer. But then a little thought breaks it all apart.

What if I take the same statement up above and replace “same sex couple” with “mixed race couple”? Well in that case, it’s clearly “stepping in it.” Oh, the hard bigotry I engaged in at first blush!

Not only that, the damages were just the legal fees.

The issue, of course, is as a photographer we understand that there is a first amendment right in this case. A photographer is an artist and should feel free to exercise their first amendment rights.

When it comes to understanding the issue at hand, I guess the biggest mistake was the e-mail trail that the photographer left. No doubt, we engage in soft bigotry all the time—God knows I have! My position though is best expressed by Photo Business News: “Yes, you’re a business.”

Still, I’ll be the first to admit, that it’s a tough pill for a religious social-conservative to swallow.

I understand. That doesn’t mean I agree.

14 thoughts on “Elane Photography

  1. I’ll claim it… Don’t I get link love as a ‘hater’ lol

    Terry, YOU MADE THE SAME POINT I DID… and I think we agree. My side dosen’t hate gays or your side, we disagree, but why did they call it “prop hate” then??? You tell me!

    This “went down” on my facebook status page, and was mostly “tongue in cheek” but none the less a true observation after watching search.twitter.com for “prop 8” and also 102 (I’m in Arizona)

    Twitter is pretty uncensored, like observing people talk around their dinner table or at a party… I can see frustration on a vote not going the way you want it, but that means

    Today I also posted my feelings on another contact’s status or imported note as they had expressed the attitude that people like myself who don’t support gay marriage are, things like…. Hater, Biggot, intolerant, etc…. After I made my comment, some of the friend’s friends posted some pretty hard hitting flames, that if I posted here *should* tick off the NO side, as it made those look pretty dumb.

    I’ll state that I don’t hate gay people and I don’t approve of their lifestyle. Also in AZ it’s already not allowed, so saygin that my vote of YES for the ammendment is “not letting people marry” is a lie. They already can’t. I am the status quo by being a man married to a woman…That’s how it is, so don’t flip it on me.

    I’ve had several great talks thru IM, DM, in person with my friends, some of which have loved ones who are guy or are gay themselves. I’m sure they’ll tell you I’m not a hater. Just because gay sex dosen’t excite me does not mean I’m the bad guy.

    What about Terry’s readers? Have you seen either side do things a little off the wall, or slanted. Do share.

    ~AcmePhoto in Phx

  2. Personally, I don’t have a problem with the photographer rejecting the opportunity for *any* reason as long as they say why. If someone doesn’t want to support same-sex unions or whatever, I think the market will take care of the rest. People like I will avoid them and then people like you will avoid and mock them.

    Their business will either become niche, die, or they’ll change.

  3. While I would not refuse to take a photograph job for the reason as in this case, I also feel bad for the photographer at the same time. IMHO, If you run a business, you should be able to refuse to take money from anyone you wish for any reason, but sadly that is not how the law is written. This photographer was up front and honest about their beliefs and responded in a tactful manor, so the fact this suit was brought against them just seems petty to me, despite me disagreeing with their reason to refuse the job. Discrimination laws have gotten out of hand honestly and are part of why I would be hesitant being a business owner again.

    Here’s a scenario for all readers to ponder:
    Take an owner of a restaurant for example. A customer comes in smelling _extremely_ fowl, bad enough to the point it causes normal people to convulse from the smell. In some states, if the owner of the restaurant refused service to this person they would easily be sued for discrimination. On the other hand, if they didn’t refuse service, probably everyone who could smell it would leave, likely without paying. The owner would then be in a big lose/lose situation. Should it be that way?

    1. I want you to think about your analogy : a smelly restaurant customer & gay customers……do you really believe that your analogy is a legitimate one…..think about what you have written!!

      1. Bias against protected classes (gender, race, religion) is not allowed in business transactions. For instance, you cannot fire someone because they’re a woman, or refuse service to someone because they’re black. You can do either if they smell bad.

        Please understand that Jeremy wrote this four and a half years ago. What he didn’t understand (and I tried to warn in my article) was that in New Mexico (and California where he and I were living), gender preference is a protected class, and the action is more akin to refusing to serve blacks than to refuse to serve someone smelly.

        I felt that time would prove me right and cause him to regret his view. That was my warning to him. The fact that this is obvious now to you is more an expression of how far we’ve come so quickly. 🙂

        You are free to be sexist or a bigot, but not in business, which is basically why Elane Photography lost the case. I noticed years later (2014), there was a bill passed in Arizona (later vetoed) that businesses should be free to discriminate against gays. The reason such a bill was written is in this case. The reason it was passed is found in the comments here circa 2008. The reason why it was vetoed is here too, in your comments.

  4. @Adam Nollmeyer – AcmePhoto: I don’t want to single out people unless they are okay with it. Because tying people’s politics to their business or their person publicly is not something I want to do unless they are okay with it. I’m okay to disagree with your politics, because I think that there is a lot of common ground, I wanted to point out. Others might not be that way.

    I certainly don’t label you as a hater. And, from the comment thread, I don’t think your friends did either. Some may say “Eight is Hate.” but that is directed at the proposition, not the individual. There are extremists who might label you as that, but, I’ll tell you that the number is far less than those on the other side who would say that many of our friends, yours and mine, are going to burn in hell because they are gay. Let us not be guilty of false equivalence here.

    I do agree that photography is artistic and as such it should enjoy first amendment rights. The very act of taking a photograph is to discriminate! But the business of wedding photography is a service, as such, it must be subject to the same laws as any service, if it is open to the public.

  5. @Keith Casey: The problem is that there is a slippery slope there that is much more likely (since it has occurred). Let a pharmacist refuse to fill out a prescription at the only night pharmacy in a town? Let a doctor or EMT refuse care to someone because the EMT is a scientologist or christian scientist? Let a restaurant refuse service because of race? Separate but equal? The case is very clear about those forms of discrimination.

    Even in the example above, if we were to replace her polite e-mail exchange whic went like so:
    Business: “I only do traditional marriages”
    Customer: What do you mean by that?
    Business: “I don’t photograph gays because such marriages is against my religious beliefs.”

    Business: “I only do traditional marriages”
    Customer: What do you mean by that?
    Business: I don’t photograph mixed-race couples because it is against my religious beliefs regarding the children of Cain.”

    Um, well I hope that your libertarian view is sufficiently offended!

    I realize that people are allowed to discriminate privately. They even get away with discrimination in business if they don’t overtly state it. There are a few excellent golf courses that the USGA will not have the Open because they discriminate. There is no law against this discrimination at all—there never has been; there never will be. I realize that this discrimination has a market forces. But you must assuredly realize that the reason segregation was eliminated in this country was because there is no such thing as separate but equal. We’ve found that market forces, at least in the case of African Americans did very little to correct their plight. In fact, neither did a Civil War. This is why we study the reconstruction period at school.

    1. You got this all wrong. Segregation was enforced by the states, the seperate but equal ruling by the court allowed it but did not require it. So it is the state laws that required segregation in some states. The Civil Rights act of 64 did away with those laws, but went one step further and required private businesses of certain types to hire and cater to everyone regardless of race.

      Herein lies the problem, it is one thing to reverse a law that requires discrimination (a good thing to do), and it is another to bring many private people into a new kind of slavery to force them to provide their time, labor, and money to serve those that they would not choose to freely. We are enslaving ourselves, and no one realizes it.

      1. Your analysis shows I didn't get it wrong at all: The libertarian “market forces” argument fails since, as you and I point out, discrimination existed as a legitimate business practice until it was declared illegal in 1964.

        I’m curious which of the TEN titles of the Civil Rights Act covers “private people.” As far as I can tell, it covers businesses that serve the public, government, and other public institutions (voting), but makes no abridgement of people’s private choice to discriminate or create private institutions that choose to do so. I can see how that may seem to bring a “private people into a new kind of slavery” to some, but that is a matter of opinion, not fact. We can agree to disagree on that. 🙂

  6. @Jeremy Johnstone: The problem with your example is that the restaurant has the right to refuse service to that person by law. Restaurants discriminate based on dress code all the time—no shoes, no service!

    The slippery slope in your example would only occur if a person’s smell is considered discriminatory. It isn’t. Currently one’s sex, religious beliefs, race and sexual orientation falls under that rubric, but wealth and hygiene do not.

    So instead let’s take your example but replace it with this one:

    Here’s a scenario for all readers to ponder:
    Take an owner of a restaurant for example. A customer comes in with extremely dark skin, dark enough to cause all the other “normal people” in the building to convulse that a Negro was eating nearby. In some states, if the owner of the restaurant refused service to that person, they would be easily be sued for discrimination. On the other hand,if they didn’t refuse service, probably everyone who could see the Negro would leave, likely without paying. The owner would then be in a big lose/lose situation.
    Should it be that way?

    I think all of us are a student of history to know that such a thing did occur in the United States and this argument was the argument typically given. In fact, this was the biggest argument by the South against the enforcement of Brown v. Board of Education. Even great conservatives like William F. Buckley were guilty of this oversight in argument which is why a lot of his early work regarding race looks so absurdly abhorrent today!

    Now you may be of the opinion that the sexual orientation is not a natural state, and thus they should be considered a like the “no-shoes customer” or the “fowl[sic] smelling customer” in your example. That’s fine. But the law in New Mexico. is pretty clear, that like the white segregationist, that view is on the wrong side of the law in this case.

    I think the force of history is with New Mexico on this one.

    We forget that we are part of a moving history. We are not as eloquent as Mr. Buckley and look what his past writings look under the lens of today. I posit that in thirty years you will look back at your example and might feel ashamed. I know that I already look back on my views of homosexuals not more than a decade ago and am appalled at my ignorance.

    The law is clear and the decision is reasoned (feel free to disagree with the consequences, but violate it at your own risk): as a business that provides services open to the public, you cannot discriminate based on sex, race, religious belief, or sexual orientation.

  7. @TyChay – I agree that it was necessary a generation or two ago to put those rules in place. Personally, I consider us a bit better educated, open minded, and generally better informed than those generations. I don’t know about you, but my high school (Kankakee, IL) was 60% black. I was the only “white” kid in my neighborhood.

    Is there going to be some discrimination? Yes, but at least it would be more out in the open… and give people the ability to make decisions based on that. It’s better than the secret/quiet crap that happens now.

  8. @Keith Casey: That’s a “driveover state” between Champaign Urbana and Chicago. I’ve been through there many times. 😉

    I guess we’ll agree to disagree on the state of the country. I saw the videos of the McCain/Palin rallies as a reminder that a sizeable segment of population isn’t out of that past. The boos during McCain’s gracious concession speech were shocking to many of us. I have no doubt that it can be overcome, but I’m of the opinion that the Civil Rights Movement was necessary for Barack Obama to have become President-Elect. That, in a small way, it cost this country the Democratic Party being “in the wilderness” for 26 years, I still applaud Johnson’s decision that made the Southern Strategy a viable one for the Republicans.

    I see discrimination in myself as I didn’t see anything wrong with Elane Photography’s position and found her statements gracious until I replaced “gay” with “mixed race.” When confronted with the bigotry of miscegenation, I was offended about my view just moments before!

    I understand where you stand valuing her openly stating her morals. I agree with you there, but the law is very clear. Read the opinion closely and there are apparently at least two “outs” that would have allowed her to openly state her personal biases.

    For instance, if she had said, “Because of my religious beliefs I personally cannot photograph this event so my LLC would have to hire a contractor to photograph the event. I recommend you not choose me because the website is not reflective of the quality you’ll be getting.” she’d have been perfectly okay. Reading the legal opinion it was the case that 1) the business was an LLC, 2) they have hired contractors, and 3) the law could not compel her (the individual) to photograph the event.

    Another out might have been if the wedding photographer’s contract had not stipulated that the business owned the photos. In that case, it would have been clear that the purchase was for an artistic work and not the service and then I believed 1st amendment rights may have trumped it. I’m not certain because the opinion didn’t state this, but they did explicitly mention in detail the stipulations of the businesses contracts—I can only assume that was the reason for it.

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