Same-Sex Marriage Job Refused: Photographer Artistic Expression or Bigotry?

Same-Sex MarriageArtistic 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

same-sex marriage
Artistry or Bigotry?

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

Outside the Beltway
Hot Air
The Atlantic

3 Responses to "Same-Sex Marriage Job Refused: Photographer Artistic Expression or Bigotry?"

  1. James M Henderson Sr   April 23, 2015 at 11:11 am

    I understand that no real artist ever lowers herself to accept payment for the creation of her art. In fact, I understand that it is an insult to pay an artist for her art.

    Oh wait, it’s only art if it’s chocolate syrup and sprinkles, and if the NEA pays for it, right?

    There is hypocrisy afoot.

    The makers of wedding cakes, for good or ill, are the makers of dreams, workers in ephemeral media of sugar, flour, food dyes, etc. The makers of wedding dress, for good or ill, are the makers of dreams, workers in not quite so ephemeral media of silks, satins, brocades, gauzes. The makers of wedding photographs are the makers of dreams, workers in paper and silver nitrates, and a variety of human models.

    You want these folks all to be something lower than an artisan. On a day when, as popular culture tells it, every bride demands that they be artists.

    Your liberties are inextricably bound with theirs. When you create the false dichotomy of a conflict between them, and undermine theirs, you are worse than Mr. Bean grabbing the loose thread of the parishioner in front of him in church, because you are unraveling the garmet that protects you.

  2. Ray Whiting   March 12, 2014 at 4:08 pm

    A wedding photographer is a hired contractor, paid to keep the mouth shut and keep his opinions to himself, and to simply document the event as a fly-on-the-wall observer, NOT a real participant. His moral approval is not required (it is utterly irrelevant in the case of a wedding, which is a socially acceptable ritual of creating a union). His area of expertise is lighting, placement, handling the camera, etc., to ensure good pictures. That is what he is hired for. He is not hired to advise the couple on their relationship, nor to offer any sort of approval or blessing. Just like a war correspondent takes pictures without getting involved or immediately helping the victims and casualties of the war he is capturing on film, so too the wedding photographer simply documents the events. Certainly not many people would argue the war correspondent has no moral objections to war, but he takes pictures anyway. A photographer’s (baker’s, florist’s) moral approval has NOTHING to do with doing the actual work being contracted.

    Do wedding photographers examine the relationship of an opposite-sex wedding? Does he refuse the wedding of the guy who ditched his wife to marry the secretary he made pregnant? Would he refuse the wedding of an 80 year old man on oxygen to his 32 year old gold-digging nurse?

    If a photographer does not wish to observe and document specifically same-sex weddings, he has to stop holding himself out as a “wedding photographer” open for the public, and just do private appointments arranged through the church of his choice. Same goes for the baker or florist — if they want to restrict their wedding-related services to just opposite sex weddings, they need to find a better model of business so they don’t have to deal with any weddings.

  3. Ursomniac   March 12, 2014 at 10:05 am

    It’s a business open to the public not owned by a religious institution. Therefore, it must serve the public. If a church wants to retain a photographer for their wedding services, then they can limit that work to those patrons whose weddings align with the church’s teachings. If the vendor wants complete control over their client base, then don’t open your business to the public.

    If “religious liberty” is to be used as an excuse for denying service, then the entire religion’s rules have to be enforced (which doesn’t get around the problem of conflicting religious freedoms – whose wins?): that means for fundamentalist Christians, no serving same-sex couples, nor divorced people, nor adulterers, and so on. Potential clients would have to fill out a questionnaire in order to determine their religious purity – otherwise the inconsistencies would make it impossible to adequately protect the vendor (is it still a sin if a couple doesn’t disclose the cake is for a same-sex wedding anniversary even though the vendor would be unknowingly promoting same-sex marriage?)…

    This is even more complicated when the business has employees: whose religious freedoms win if the employer mandates that all employees follow his religious beliefs? Or to cite the converse example, if an employer is OK with baking cakes for same-sex weddings, can an employee refuse service because of their PERSONAL beliefs? Since one cannot inquire about religious beliefs in job interviews, how do employers and potential employees screen for the conflicts?

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