Artistic expression or bigotry? Is a photographer who shoots weddings for money a traditional business or an artist? This is the debate that continues even after the August, 2013, New Mexico Supreme Court ruling that found Elaine and Jon Huguenin guilty of discrimination for refusing to photograph a same-sex marriage ceremony.
The Huguenins, New Mexico photographers, refused to photograph the 2006 wedding of Vanessa Willock, who is gay. Willock sued the Huguenins for discrimination and the New Mexico Supreme Court found them guilty.
The Huguenins refused to say that they did not provide services to same-sex couples, only that they would not photograph same-sex marriages because it was against their religious beliefs. They claimed that photography is a type of artistic expression, and that as such they should be free to decide whom they want to take pictures of.
Jordan W. Lorence of the Alliance Defending Freedom, a legal advocacy group based in Washington, and one of the attorneys for the Huguenins, said that the fundamental freedom of citizens to live and work according to their beliefs is a foundation of America. Citizens should not be forced to support ideas and messages they do not agree with.
The court disagreed and said refusing to photograph a same-sex marriage is no different from refusing to photograph a wedding between a multiracial couple.
This ruling is important because it is an example of a court legally establishing that homosexuality and race are the same for purposes of determining non-discrimination. When the Civil Rights Act of 1964 was passed, private discrimination like what had existed in the South for generations was outlawed by the Federal Government. New Mexico says the same rule should apply to discrimination against gays, but the Federal Government has not.
Central to the dispute was the interpretation of New Mexico Constitution’s Human Rights Act, which was revised in 1972 to offer equal protection to people regardless of sexual orientation. But the Federal Government still defines protected classes as race, color, religion, national origin, sex, age, disability, veteran
status, genetic information and citizenship.
ACLU’s Louise Melling said when a business opens its doors, it is opening them to all the people in the community, not just the select few who share your personal beliefs.
And Jazz Shaw notes in Hot Air that once you make the argument that it is hard to see where to draw the line once private business owners are given the right to discriminate. He says when you bring up the concept of “reserving the right to refuse service” one of the first images that comes to mind is the legendary “Whites Only” lunch counter.
Doug Mataconis, in Outside the Beltway, says that what this case really asks is whether an artist should be required to create a work of art for anyone, or should they be free to refuse to do business in particular situations? He says that artistic freedom could be preserved by answering yes to this question, but it would also mean ordinary vendors would still be subject to anti-discrimination laws such as the one in New Mexico.
Of course the argument will begin over which “ordinary vendors,” are artists.
Perhaps the question should be “What is art and what is bigotry?”
The Free Dictionary defines art as the conscious arrangement or production of colors, sounds, movements, forms, or other elements in a manner that affects the sense of beauty.
It defines expression as the act of representing or conveying in art, words, movement, or music, a manifestation: an expression of rural values.
And finally it defines bigotry as the extreme intolerance of any belief, creed, or opinion that differs from one’s own.
So is the action of the Huguenins in refusing to photograph a same-sex marriage artistic expression or bigotry?
Photography can certainly be defined as art, but when one charges money for the creation of that art the argument can be made that it is like any other business. Most artists need to sell their art in order to live and most never question that the works of painters, for example, are art.
Joshua Steimle of Forbes, says that if we want fairness and justice for all, the law should focus on crimes of violence, even if it means letting people get away with doing wrong. He goes on to say that even the Huguenins are wrong to discriminate, a free society with a thriving entrepreneurial base may have to tolerate such behavior. He says that those who are happy about the results of this case may come to regret it in the future if that precedent is used against them. We may not want to give the government such power in the first place.”
Interestingly enough, the Huguenins were not completely in agreement about why they would not shoot a same-sex marriage. In court statements, Elaine said they would photograph same-sex couples, but not their weddings. Jon says he would not photograph a same-sex couple at all, even if he was not sure they were gay, if they were same-sex and showing any sign of affection.
Jon’s statement sounds more like bigotry than artistic expression, which apparently the New Mexico Supreme Court agreed with. There is no easy answer as to which category the Huguenins decision to refuse to shoot a same-sex marriage falls into, but it is easy to imagine that the debate will continue.
By Beth A. Balen