What’s really at stake in the Elane case?

There seems to be pretty widespread disagreement within the GLBT community over the meaning of the New Mexico Human Rights Commission ruling in the Elane Photography case, and whether the decision was correct. (The short version: Lesbian couple approaches photographer to take wedding pictures; photographer refuses, citing religious objection to homosexuality; couple files discrimination complaint with Human Rights Commission; photographer is fined.) For those who find the ruling troubling, the gist is that equality for GLBT people can’t be attained through the use of force, and there is a danger of that approach backfiring. Timothy Kincaid at Box Turtle Bulletin:

On one hand, I recognize the value of the limitations that society has placed on the application of religious beliefs and can see the societal benefits that have resulted from anti-discrimination laws. I would not want a plumber, for example, using religious freedom as an excuse to deny services to a Muslim. And I don’t want to return to the day when a store can refuse service to someone solely because they are black or Jewish or gay.

But, on the other hand, I don’t think we are best served by forcing photographers to participate at same-sex commitment ceremonies and I am not convinced of the wisdom of laws that don’t allow for religious objections. I fear that legislatures that might be considering laws that protect gays and lesbians from discrimination will balk if they believe that individuals will be forced to participate in events that they find immoral or objectionable.

Of course he’s right that people who find someone else’s beliefs or conduct objectionable can’t just be forced to change their views. There is not much value in forcing someone who hates you to associate with you, I get that; but I question whether that objective is really the one underlying this complaint. And as much as I share the concern about sending the wrong message to legislators, I think the alternative may be even worse.

Since what we are really talking about is a case of religious discrimination, I’ll stick with comparable examples. Suppose that the proprietor of a photography business is an Orthodox Jew, and would find mixed marriages objectionable on religious grounds. If the business is advertised as doing “wedding photography,” it’s certainly likely that its services will be sought by couples with a different religious view on this question. Is it acceptable to advertise to the public that a business does wedding photography, and then refuse to work with certain prospective clients on the basis of their religious beliefs? (Some would probably say yes, but New Mexico law says no.) The same would be true of a devout Catholic who believes that it’s a sin for divorced people to remarry, or, for that matter, someone who objects to women having children out of wedlock. Can such a person advertise to the public that they specialize in baby photography, and then refuse to photograph the baby of a single mom? Should they be able to demand information about marital status, where the baby’s father is, how the pregnancy was accomplished, etc?

I don’t see how the Commission could have ruled other than the way they did, given that they define a photography business as a “public accommodation” (a valid question in and of itself, taken up by some of the commenters at Box Turtle Bulletin). They would have to come to the same conclusion if the hypothetical Catholic photographer refused the business of a couple by saying to them “It offends my conscience that you divorced people are getting married, and I will not participate in your sinful behavior.”

The point that some are making, that photography requires good rapport between the photographer and the client, and is therefore different from, say, service in a restaurant, is well taken. Certainly, the couple wouldn’t have wanted this hostile woman to actually be their wedding photographer, so the question becomes why didn’t they just walk away? I do have reservations about the decision to bring the complaint in the first place. In a business such as wedding photography, it seems to me that the market should be able to work this out without non-discrimination law being invoked. In practice, the market will demand photographers who are open to couples of all faiths and combinations, and those who are not will experience the consequences in their business.

In some areas it might be viable to only serve a niche market like non-interfaith Jewish weddings, and in fact there are plenty of places where different niche markets co-exist, even though discrimination is illegal. This is accomplished through something called “discretion.” Instead of our hypothetical Orthodox photographer saying to an interfaith couple, “I’m not doing your wedding because self-hating Jews like you are contributing to the demise of our people, and by the way, you’re breaking your mother’s heart,” he might say, “I’m so sorry, but we’re already booked that day.”

See how this works? Elaine Huguenin chose to handle this situation without discretion, in a way that seems to have been calculated to cause offense, and that very deliberately communicated her belief that she could violate New Mexico law with impunity. That was her choice, and it was very stupid and belligerent, not to mention unnecessary. The fact is that not every business is right for every client, and people should be able to sort these things out without taking up positions behind the barricades. Here is a real-life example of how that reality can be handled 1) without violating the law and 2) without being insulting. This is how people with very different beliefs and viewpoints co-exist:

Let me give a comparative example. In CA, there is an anti-discrimination law that includes LGBTs. Yet in Palm Springs there are several bed-and-breakfasts that cater to gay men and are typically clothing optional. I asked the owner of one such establishment how he handled reservation requests from non-gay men (since the law works both ways, he cannot refuse reservations from straights). He told me (and the story he related was actually of an Orthodox Jewish family who had contacted him about booking some rooms) that he was very frank. He would certainly welcome them to the b-and-b, but explained that there would undoubtedly be gay men also there at the time, that the rules that people could be nude around the pool would not be restricted, and basically left it up to the family to decide. They opted for another establishment, which he recommended to them after they asked. No laws were violated, and all information was upfront.

The photographer could have taken that same route, instead of refusing the work. Simply explain to the couple that, of course she would take the job, but that she would be uncomfortable around the ceremony. If the couple still wanted her, they would have to deal with the discomfort during the day. Presumably they would have shopped elsewhere.

Exactly. Notice what happened here – or, more accurately, what didn’t happen; this Orthodox family didn’t respond by becoming outraged that this guy runs a B&B at which they might not be comfortable, and declare that they were going to stay there anyway and be miserable. They thanked the proprietor for the reference to a more suitable establishment, and life went on. When you treat someone with respect, they tend to respond in kind. There could easily have been a similar outcome in the Elane Photography case. Just as it didn’t serve the Orthodox family’s interests to stay at that particular B&B, it wouldn’t have served the lesbian couple’s interests to have an uncomfortable, homophobic photographer at their wedding. If Elaine Huguenin’s objective was one of mutual interest – she didn’t want to do the job, and they didn’t want someone uncomfortable with same sex marriage to do the job – she could have explained that she probably wasn’t the right photographer for them, and recommended someone else. The free market would have worked, and all parties would have had their needs met. Mutual interest doesn’t appear to have been her goal, though. Instead, she seemed to need to make a point of refusing them and asserting her “right” to refuse them, to make a political statement. As absurd as this sounds, the equivalent would be for our B&B proprietor to have huffed at the Orthodox family that he most certainly would not accommodate them because he found their religious beliefs and way of life offensive, and furthermore, that his own beliefs give him the right to violate the law with impunity. Would anyone be defending him if he had done that?

This is the reason that, although I might not have chosen to take legal action, neither do I have much sympathy for Elaine Huguenin. She went beyond the reasonable pursuit of her interest as a business owner in finding compatible clients, and chose to make an unnecessary, inflammatory STATEMENT that she was violating the law.

I don’t claim to know the rationale for the decision to file the complaint, and I really don’t know anything about this couple, but it could be that they were looking beyond their own interests (after all, this unpleasantness certainly couldn’t have enhanced their wedding celebration much) and were instead considering the larger implications of this incident. Wedding photography is not a life-and-death issue. That is not the case with some other services and accommodations.

We have, in recent years, seen an unprecedented attempt on the part of certain “religious conservatives,” as they call themselves, to establish a “right” to discriminate against people who hold other beliefs in the critical area of health care delivery. These health care providers have asserted that their “religious freedom” includes the freedom to determine, according to their personal moral judgment, who is and is not entitled to receive their services – to have prescriptions filled, to obtain surgical procedures, or even to be accepted as a patient in a general practice. Attempts are being made both through state legislatures and through the private sector to permit so-called “conscience clause” provisions that would exempt individual pharmacists from having to provide certain legally prescribed medications, or to fill prescriptions for certain people – for instance, contraceptives to unmarried women – simply on the basis of their personal “disapproval.”

This trend, part of a larger political strategy of framing every obstacle to the public policy desired by these “religious conservatives” as an attack on their religious freedom, is obviously extremely dangerous to the rest of us. There is no logical endpoint if individuals are allowed to make these “exceptions” to the delivery of health care based entirely upon subjective belief and bias. Taken to its logical conclusion, people could be denied life-saving medical treatment and allowed to die – which, in fact, is exactly what happened to Robert Eads, a transexual man who was turned away by doctors until his cancer was too advanced to successfully treat. He died at 53. See the film Southern Comfort for his story.

I have a solution for pharmacists who object to filling the prescriptions that people obtain from their doctors and bring to you: Change careers. The job description of a pharmacist is to fill prescriptions written by doctors, being on the alert for medical contraindications and drug interactions that may have been overlooked. Your own moral judgments and opinions about how other people live their lives is not a medical issue. If your conscience prevents you from filling certain prescriptions – which it may, and that is certainly your right – then you are not qualified for the job of pharmacist. It’s that simple. Ditto for any doctor or other health care practitioner who would refuse care to a person because that person offends your beliefs. If that is the effect of your “conscience,” then your “conscience” needs to be treated like any other disability that would prevent a person from doing a particular job. Firing or not hiring someone because they can’t do the job is not discrimination. Find something you can do.

It’s easy to see why, in the context of this kind of assault on the basic rights of anyone who doesn’t share the beliefs of these “religious conservatives” – to equal treatment in health care, housing and employment, things that are necessary for life – allowing someone to get away with openly declaring that their religious beliefs make them exempt from following a law sets a dangerous precedent, one that will have real, life threatening consequences.

It’s a shame that things turned out this way, and that a Human Rights law would be invoked in an encounter about something as voluntary as wedding photography – but there’s your slippery slope. People who consider their own beliefs so special that they trump everyone else’s will not put limits on themselves, limits have to be put on them externally. To see a real life, and local, example of this, you need look no further than the angry-man sputterings of Brian Withnell over at Nova Townhall. He claims, among other fascinating things, that GLBT people have “no right” to work in the interest of our own equality. That’s right, Mr. Withnell goes far beyond stating that he would refuse to do business with GLBT people, or even that the lesbian couple in this case went too far – he openly states that we have no constitutional rights that he recognizes, because to his mind such rights are only granted in accordance with his religious beliefs. The fact that completely escapes him is that our Constitution was written to protect the rest of us from people who think this way. Can you believe that this poor guy actually attempted to run for public office in Loudoun County? If he had any plans to try again, that idea just ended with a whimper. As for Elaine Huguenin, maybe she was ignorant of the law in her state; maybe she inadvertently got caught up in this without knowing what she was stepping into, and maybe not. I don’t know.

In the end – and maybe everyone can agree on this – I think everybody loses in this case. This is exactly the kind of situation that abstractions like “law” can’t really resolve. Only human beings acting in good faith can do that.