Rights: Yours, Mine, and Theirs

There are lots of topics on the subjects of rights I could discuss, though this wouldn't normally be one. But as it deals with the business of being a photographer, it deserves our attention. It's when a photographer is alleged to have violated the human rights of someone else.

What's that you say? Aren't we supposed to be the defender of the downtrodden, the under-served, the discriminated against?

Yes, one photographer has been taken to task for alledgedly discriminating against the rights of another, a prospective client, for religious reasons - the photographer's religious reasons.

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The Washington Times reported (Artist hit for refusal on beliefs, 2/25/08) that an evangelical Christian photographer is being charged with violating the rights of a lesbian couple who wanted to have Elaine Huguenin, who is based in New Mexico, photograph their commitment ceremony.

Now, before I continue, let me say one thing - at no time in this article am I (nor should you) going to take a position on the issue of Huguenin's religious beliefs, nor on the couple's ceremony. If you decide to make this about that in the comments, not only are you missing the point of this piece, you're comments will be subject to deletion. I was going to turn on moderation of comments, but thought better of that.

Had the photographer - who is in the business of providing photographic services to couples - simply decided, in her own mind, that she objected to these specific types of ceremonies, simply said "I don't think I would be a good fit for your ceremony", or even said she had other obligations, that would have been the end of it. Instead, the photographer opted to leave a paper trail, of sorts, in the form of an email to the prospective clients, regarding her religious objections to a same-sex ceremony, and thus, indicated that her intention to not provide professional services to this couple was based upon this position. A statement that, in many jurisdictions, can be interpreted (and has successfully been, in courts-of-law) as discriminatory.

Are there many, many other photographers in the Albuquerque area that could provide as good as, if not better, services than Huguenin? Surely that's the case. Why did this couple decide to bring this case before a state tribunal? Because refusal of service could very well be discriminatory, when made by the owner of a business.

Yes, you're a business, just like the malt shops who wouldn't serve blacks in the 60's - they were in the wrong. You're a business, just like those that might refuse an interracial couple from enjoying a romantic dinner in their restaurant. Those that would do so would be found to be in the wrong. You're a business, just like those that would refuse a muslim service after 9/11, they were found to be in the wrong. Federal laws have jurisdiction over civil/human rights issues, where people are discriminated on the basis of race, color, creed, religion, and sexual orientation.

The defense's position, according to the Times, is that "Elane Photography is basically a husband-and-wife small, little commercial photography business" run by "devout Christians who have a variety of things they don't want to take pictures of." This is acceptable where, say, they don't want to do boudoir photography. Or, perhaps, produce pictures which depict a burning cross, and so forth. But is it, in this case? The defense goes on to suggest "...'the First Amendment protects artists like Mrs. Huguenin from being compelled by the state to engage in expression that violates their religious convictions.' The First Amendment 'is pretty clear that Christians should not be penalized for abiding by their beliefs,'...", and so, an interesting twist is added when we begin to discuss the compelling of an artist to make expressions that they believe violates their religious convictions.

This isn't, in the end, the same as the sale of a tangible product like a chocolate malt, or an appetizer and main course.

Remember - you are a business. And, your business falls under anti-discrimination laws just as any other "small, little commercial photography business" falls under laws that preclude the dumping of film chemicals down the drain into city water, or handicap-access to your storefront studio in that quaint downtown shopping district in Anytown USA.

Does the state have a case? Maybe, with the laws written as they are, and precedents set where other businesses have been found liable for discriminating. If the state's position is that refusal of service is comparable when made on racial grounds, as it is when made against a homosexual couple, then it's not a maybe-they-have-a-case, then they do. And it's one which will drag out in the courts for years, or get settled for a significant dollar figure. Will this photographer spend a great deal of time defending her religious position? Yes. In the end, will the photographer prevail? I don't know.

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