Published by Christianity Today on 13 June 2012. By Tobin Grant.
The New Mexico Court of Appeals recently ruled against a photography company that said it refused to photograph a same-sex marriage ceremony. On May 31, the court upheld a ruling by the New Mexico Civil Rights Commission against Elane Photography for violating the state's prohibition against discrimination based on sexual orientation. In 2006, Vanessa Willock asked Elane Photography in Albuquerque to photograph her same-sex commitment ceremony. Elane declined because it photographs only traditional weddings, not same-sex weddings. Willock filed and won a claim with the commission, alleging that she was discriminated against based on her sexual orientation. We collected the arguments over specific issues below:
Discrimination or rights of conscience?
The Alliance Defense Fund, which represents Elaine and Jon Huguenin, co-owners of Elane Photography in Albuquerque, argued that the Huguenins were simply sticking to their beliefs.
"Should the government force a videographer who is an animal rights activist to create a video promoting hunting and taxidermy? Of course not, and neither should the government force this photographer to promote a message that violates her conscience," said senior counsel Jordan Lorence. "Because the Constitution prohibits the state from forcing unwilling artists to promote a message they disagree with, we will certainly appeal this decision to the New Mexico Supreme Court."
Who's protected?
The court said there was a difference between denying services to someone who wants you to promote a cause you disagree with and telling someone that you will not work with them because of their sexual orientation. According to the court, Elane Photography had the right to refuse to work with children, for example, because they were not protected by the New Mexico Human Rights Act. The court said that the act prohibits businesses that offer services to the public from refusing services based on "race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation[,] or physical or mental handicap."
Do acts define self-identification?
Elane Photography argued that it did not discriminate against Willock because of her sexual orientation. The problem was not that Willock is a lesbian but that the job was for a same-sex wedding. Elane Photography said it would be willing to take her portrait or take pictures of her wedding if, despite being a lesbian, she married a man.
However, the Supreme Court ruled in its 2003 decision in Lawrence v. Texas that one cannot differentiate between sexual orientation and the acts that define that orientation. For instance, refusing to photograph a same-sex ceremony discriminates against gays just as turning down a bar mitzvah would be an act against Jews.
What about artistic expression?
Elane Photography said that they had a right to refuse to photograph a same-sex ceremony because doing so would force them to portray support for same-sex marriage. Elane said that photography was expression and that as artists, they could not be told what to photograph.
"We should encourage business owners to operate their businesses with ethics and higher principles so that they do not mindlessly dispense goods and services with no thought to the impact of their actions. The Constitution protects people's expression of their views, even when it comes in a commercial context," said Lorence.
The court disagreed. "By taking photographs, Elane Photography does not express its own message," the judges said. "Rather, Elane Photography serves as a conduit for its clients to memorialize their personal ceremony. Willock merely asked Elane Photography to take photographs, not to disseminate any message of acceptance or tolerance on behalf of the gay community."
Religious freedom or regulations?
The photographers said that the law was infringing on their religious freedom. They said that they were being forced to choose between their livelihood and their religious beliefs.
The court said that Elane Photography was not forced to do business in New Mexico. And when the photographers voluntarily entered into a public marketplace, they came under the same regulations that affect every other business in the state.
"This does not deny Elane Photography the right to express its religious opinion," the court said. "The owners are free to express their religious beliefs and tell Willock or anyone else what they think about same-sex relationships and same-sex ceremonies."
Future?
Almost half of the states have non-discrimination laws similar to the New Mexico Human Rights Act. New York and New Hampshire have some exemptions for religious organizations that provide marriage services. The ADF said that the case is not over, and Elane Photography will appeal to the New Mexico Supreme Court.
Dietrich Bonhoeffer, "Silence in the face of evil is itself evil: God'll not hold us guiltless. Not to speak is to speak. Not to act is to act."
ReplyDeleteDr Martin Luther Kind Jr, "Our lives begin to end the day we become silent about things that matter."
http://abcnews.go.com/US/wireStory/college-prezs-prostitution-site-ruled-legal-16610583#.T-KepRcjGSo
ReplyDeleteA website that authorities say two aging professors used to run a multistate prostitution ring is legal, a state judge has ruled, highlighting the difficulties that prosecutors face in using decades-old laws to combat a modern phenomenon.
The ruling comes as prosecutors were scheduled to present to a grand jury their case against former University of New Mexico President F. Chris Garcia, who is accused of helping a physics professor from New Jersey oversee a prostitution website called "Southwest Companions."
State District Judge Stan Whitaker ruled that the website, an online message board and Garcia's computer account did not constitute a "house of prostitution," the Albuquerque Journal reported.
Whitaker also said the website wasn't "a place where prostitution is practiced, encouraged or allowed."
The ruling means that prosecutors will now have to decide how to proceed with a case involving Garcia, retired Fairleigh Dickinson University physics professor David C. Flory and others.
They were arrested last June on a criminal complaint charging them with promoting prostitution. Flory, a retired physics professor at the New Jersey school and has a home in Santa Fe, is accused of buying the site in 2009.
Garcia's attorney, Robert Gorence, said Garcia was satisfied with the judge's decision and felt vindicated. A woman who answered the phone at Flory's Santa Fe residence said he had no comment.
Investigators said the prostitution ring had a membership of 14,000, including 200 prostitutes. Members paid anywhere from $200 for a sex act to $1,000 for a full hour. Prostitutes were paid with cash, not through the website, according to police.
But the ruling also showed the difficulty that prosecutors have in trying prosecute owners of websites that promote or facilitate prostitution because of laws created long before the Internet age, experts say.
"Most state laws only address street walkers and brothels and are so narrowly written that it's hard to prosecute these new cases," said Scott Cunningham, a Baylor University economics professor who has written about technology and prostitution.
For example, Cunningham said, Craigslist withstood lawsuits and challenges by law enforcement agencies and district attorneys' offices to shut down its erotic services section and only closed them later for publicity reason.
To change laws, Cunningham said, some states will have to pass laws that outline step-by-step regulations on websites.
Chief Deputy District Attorney Mark Drebing said prosecutors' options are limited because New Mexico has laws on the books for computer fraud and use of computers and the Internet for child pornography, but none geared toward prostitution.
Drebing said no decisions have been made about how prosecutors intend to move forward with their case.