Musings on Photography

The photos the government compels you to make

Posted in ethics by Paul Butzi on April 11, 2008

Some time back I wrote about the photos not to take. That post, and the followups to it, are still among the most read posts on this blog.

Yesterday, I read about an artist being penalized for refusing to make art for hire, based on her religious convictions.

The short version of the story is that a lesbian couple approached Elane Hugenin, a wedding photographer, wanting her to photograph their same-sex commitment ceremony. Elane refused. Vanessa WIllock filed a complaint with the New Mexico Human Rights Commission. The NM Human Rights Commision found agaist Elane, and she’s been fined

There are interesting issues here. An interesting summary of the legal issues can be found here. It’s worth reading. I’ve spent much of the last day and a half (including essentially ALL of the time I’ve spent this morning pressure washing the patio) pondering how best to weigh and care for the compelling interests of the parties involved. While I haven’t changed my mind, there’s a lot there than I thought at first.

20 Responses

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  1. Rosie Perera said, on April 11, 2008 at 5:37 pm

    Hmm…very interesting case. I don’t see why the couple would have wanted to force Elane to do the photographing. She wouldn’t likely have been able to do a good job of it if her heart wasn’t in it. I also don’t see why Elane had to make a preaching moment out of it, as she apparently must have or they probably wouldn’t have sued. Why not just politely decline and refer the couple to someone else who could serve them better? Surely there are wedding photographers in quirky Albuquerque who would be able to do it with a clear conscience and portray the ceremony in a lovely light.

    I checked out Elane’s website and read her bio.

    “When you find something that you are passionate about, it’s one of the most invigorating feelings ever. You realize that you were created for more than just sitting around, and you feel alive. The arts evoke that in me. I love to dance, I love singing in harmonies. I love to sit outside and paint oil on canvas, and I love photography. It is something that, even as a vocation, I would never become tired of it.”

    It would be a sad thing if it turned out that our country’s laws (or those of the state of New Mexico) allowed the government to take that joy away from her and force her to photograph events that she finds distasteful. And even if it could be legislated, can you imagine a gay couple wanting to choose a photographer who photographs them with churning stomach as she looks through the lens at their “bride may now kiss the bride” moment? That would take their joy away too.

    Sometimes our legal system does not really serve human purposes well.

  2. sjconnor said, on April 11, 2008 at 8:36 pm

    The catch is that Elane, in fact, isn’t being forced to photograph a same-sex couple as an artist. She’s being forced to as a business. As soon as she advertised herself as a wedding photographer for hire, she lost the right to claim artistic integrity. Had she been an artist, working according to her own artistic inclinations, advertising and selling the works that such inclinations led her to make, I suspect the outcome would have been different. As it is, her situation is no different than that of the owner of a diner who refuses to serve someone based on skin colour.

  3. Paul Butzi said, on April 11, 2008 at 11:15 pm

    I will just throw a couple of thoughts out there:

    I also don’t see why Elane had to make a preaching moment out of it, as she apparently must have or they probably wouldn’t have sued.

    They didn’t sue. They filed a complaint with the Human Rights Commission, not the same thing as filing a lawsuit. And I could imagine that, after she turned them down, the couple filed the complaint just to be vindictive. We have no more cause to believe that Elane made this into a preaching moment any more than we do to believe that the couple, knowing a priori that Elane would decline, decided to ask her, then file a complaint just to make a political statement and harrass Elane.

    As it is, her situation is no different than that of the owner of a diner who refuses to serve someone based on skin colour.

    That would be true if being a wedding photographer was a public accommodation, and it would not be true if being a wedding photographer was not a public accommodation. Beyond that, there is no constitutionally protected right to refuse to serve someone a meal. There is, however, a constitutionally protected right both to freedom of religion and freedom of speech.

    In any case, that doesn’t change the facts – she’s being coerced into making artistic statements she doesn’t want to make. You can argue that it’s right for the state to do so. But the fact of the matter is that she’s selling her artistic interpretation of the event – and apparently she does not have the right to refuse to make statements that conflict with her religious beliefs. I call that a loss for freedom of expression and a loss for freedom of religion – two rights I hold dear.

    Consider the matter from the other end. Suppose Elane was just an employee at a large firm that did wedding photography. Her employer must make reasonable accommodation of her religious beliefs. Does this mean that as an employee, she could NOT be forced to photograph same sex ceremonies of commitment? I would think so.

    It seems a bit strange that she has rights when employed by someone else but no rights when self employed.

  4. Ken Hagler said, on April 11, 2008 at 11:57 pm

    The summary of the legal issues has, perhaps unsurprisingly, overlooked any mention of what the supreme law of the land has to say on the subject:

    “Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

    Note that it does _not_ say “except as a punishment for being a bigoted religious fanatic.”

  5. Martin Doonan said, on April 12, 2008 at 1:23 am

    While I don’t normally comment on these sort of issues, I have noticed a couple of interesting points here (offered without judgment):
    First, it is not the photographer (Elaine Hugenin) who has had the ruling against her, it is her company (Elane Photography (sic)). It seems that the interpretation being given is that the company does not have the right to refuse, even if the individual does.
    Second, would the same arguments on freedom of religion also hold only for the individual?

    Now a bit of opinion…
    By setting up as an LLC, a person is gaining certain protections (especially financial) under law. It seems only appropriate that there are associated restrictions and duties. I would argue against the ruling if this had been brought against the individual photographer, but it has not.
    On the religious freedom angle (which I don’t think has come into play here) – if you are claiming it, it needs to go the whole way. In this case, assuming Elaine Hugenin is a Christian, then I would expect her to be refusing to work on a Sunday as well. If you want this sort of legal protection it cannot be at your own convenience.

  6. Sean said, on April 12, 2008 at 7:32 am

    I figure that businesses should be allowed to refuse to deal with customers on whatever basis they feel like.

    As a small business owner I can tell you that if I refused to do business with visible minorities I would disgust the rest of my non visible minority customers quickly, lose their business, and go out of business myself. Which is as it should be. No need to employ several thousand bureaucrats to attempt to poorly enforce the same process.

  7. ron said, on April 12, 2008 at 8:01 am

    This case does raise all kinds of intriguing questions, I agree. I’ve commented before about this on other blogs, but what I haven’t seen stressed so much until this post was the artistic claim.

    Although subtleties abound, the present justification really revolves around art vs. service; to the extend that we agree that the couple is hiring an artist, we can see the merits of the photographer’s argument. But the photographer’s freedom as an artist is also necessarily constrained by her commission, and no wedding photographer who wanted to stay in business long would operate without taking into consideration the couple’s vision for the work produced. The flip side is that couples generally look to someone with an artistic sensibility to augment the meaning and impact of their photos.

    In other words, the wedding photographer lies somewhere on a spectrum between pure artist and photojournalist; the former would never be expected to have an outside influence sway a choice in subject matter, and the latter would be expected to never refuse do document what goes on about her.

    All this, I suppose, is to say that for me, the artistic claim has some merit, but only goes so far; it would be possible to hide behind such a claim to justify any sort of business decision. The more I think about it, the more complicated it becomes. Our advocacy-based system requires that both parties appear extreme in their views; where the truth lies (if even such a thing can be made) is surely in the haze between.

  8. Bob Gussin said, on April 12, 2008 at 9:42 am

    What if the shoe were on the other foot. What if a homosexual event photographer were asked to photograph an event for a religeous denomination that doesn’t condone homosexuality. I have no answer, I’m just positing this question.

  9. […] but I’m guessing most of us aren’t. So it might seem to those of us who are not that this issue doesn’t really touch us. That’s what I thought at first, […]

  10. Rosie Perera said, on April 12, 2008 at 1:07 pm

    As it is, her situation is no different than that of the owner of a diner who refuses to serve someone based on skin colour.

    It’s more akin to a restaurant not serving a particular kind of food that a certain kind of clientelle might demand (kosher, for example). I don’t know of any cases of restaurants being fined for that. Sure, they can’t turn Jews away at the door, but what orthodox Jew would want to eat at a sushi restaurant?

    It is quite possible that Ms. Hugenin would have agreed to do some other sort of photographs for one or both of these women (her website advertises that she does more than just wedding photography — portraits, for example). So its isn’t necessarily the fact that they are lesbians per se that caused her to refuse service. It is that she didn’t want to photograph a commitment ceremony. I think she had the right to refuse that. In her religious perspective, that is not a wedding. She is a wedding photographer, not a commitment ceremony photographer. At least for now, the state of New Mexico agrees with her on that point and does not allow marriage between same-sex couples.

    What if a homosexual event photographer were asked to photograph an event for a religeous denomination that doesn’t condone homosexuality.

    Probably a moot point. I doubt that such a photographer would ever be invited by such a group to photograph their event, if his or her orientation were known about ahead of time.

  11. Sean said, on April 12, 2008 at 4:56 pm

    “Sure, they can’t turn Jews away at the door, but what orthodox Jew would want to eat at a sushi restaurant?”

    Hey, fundamentalist Moslems eat at Burger King:

  12. Georgia Halloran said, on April 13, 2008 at 8:17 pm

    Ms. Hugenin First Admendment rights have been trampled on and I am sure the fine will be appealed. She has chrsitian beliefs that do not believe in gay marriages or the homosexual lifestyle. These thoughts and her beliefs are protected by our constitution. Someone on earlier post spoke to discrimination on a black person is the same idea-Wrong-race is one thing and giving special priviledges to homosexuals is not the same.
    This is where these commissions and so called “hate crimes” laws will lead us all. We won’t be able to utter a word in case it ‘offends” someone.

  13. mojo said, on April 14, 2008 at 11:07 am

    Liberty is the ability to say “no, I will not” and make it stick.

  14. Half Canadian said, on April 14, 2008 at 11:09 am

    Forget her rights as an artist, what about her rights as a citizen? I know my way around statistics. IF I, as a freelancer, refuse to do stats analysis for a gay-rights/ethnic/religious group because of my own POV (religious or not), can I refuse that work without getting sued (regardless of the court)? Or do I have to lie to these people about why I won’t take their work?

    Assuming that I would have any problems with taking their money, of course.

  15. SF said, on April 14, 2008 at 2:43 pm

    People should be free to do business with whomever they like. The reason is irrelevant. Fighting discrimination should not involve forced servitude.

  16. Martin Doonan said, on April 14, 2008 at 2:59 pm

    All the talk of rights – it’s interesting. Is there a distinction between the rights of the individual and the rights of a company?

    Remember (go read the judgement), Elaine Hugenin has not been fined. Her company, Elane Photographic, has. I believe there is a substantial difference there.

  17. Paul Butzi said, on April 14, 2008 at 3:10 pm

    Is there a distinction between the rights of the individual and the rights of a company?

    The answer seems to be unclear, especially if the ‘company’ is a sole proprietorship or LLC. Perhaps some lawyerly reader will weigh in?

  18. CMPatti said, on April 14, 2008 at 6:16 pm

    Corporations do have free speech rights. See First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).

    That said, the legal question whether Elane Photography is exempt from antidiscrimination laws because of the expressive aspect of the service it provides is an interesting one. Let’s assume (because I think it’s true) that courts would reject the claim of a hair salon that it could refuse to serve customers on the basis of race because of the artistic or expresive nature of the services it provides. What factors permit drawing a principled line between that example and the wedding photographer?

  19. Richard Ball said, on April 15, 2008 at 6:24 am

    Pornography is legal. Should a person be forced to film a pornographic event if it conflicts with their conscience or religion? Do person not have a moral right (and responsibility) to refuse to participate in activities they view as immoral?

    Is “bigoted religious fanatic” the left’s only rejoinder to what is at essence a moral argument?

    And, for the record, homosexuality is an inclination and a behavior, not an immutable characteristic such as skin colour or sex.

  20. Dennis Allshouse said, on April 15, 2008 at 12:28 pm

    Paul, couldn’t you require a release prior to evaluation that would absolve you in case you rejected a job?

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