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Christian photographer wins right to discriminate against LGBTQ+ couples
(www.lgbtqnation.com)
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this post was submitted on 09 Nov 2023
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I disagree with him, and I think he's bigoted. But I don't think anyone has the right to his labor and that he should be legally forced to photograph things that he doesn't want to photograph. And it's not like photography is a business that anyone can corner the market of in a small town or anything like that, all you need is a camera. It's the most common side hustle I see people try.
And how do you differentiate between this and say, a shop, or a doctor? Do LGBT people not "have the right to the labour" of those services?
I disagree with that framing entirely. But I'm curious to know how you would differentiate.
I'd say it's the business model.
Not defending the practices or arguing in defense of bigotry, just offering an explanation.
If it's a business model like a store where you come in and buy things with prices on them, that's open to everyone equally.
If it's a business where you sit down individually with each client and work out custom goods and services and pricing, then it's less "owner sells things" and more "clients contract owner for XYZ", and at that point, I'd tend to agree that it's a two way street, that both parties must agree to terms.
At that point, both sides have the option to simply not agree and not enter into a contract, for any reason. Just because one may disagree with one party's decision to not enter that agreement doesn't mean they shouldn't have that option.
What if it was a photographer who didn't want to be hired to photograph a Trump rally, a pro-life protest, or something else they felt strongly against like a (peaceful, lawful) far right event?
I don't think in those cases that a photographer should have no choice because the organizers are paying the money, so likewise, in this case, I don't feel like it's fair to force the photographer to cover an event they have a strong moral objection to, simply because that's their business.
Again, I'm not arguing that I agree with the photographer or that their position isn't bigoted, just offering a distinction.
I think your comment can be summed up more succinctly with "independent contractors have more discretion to choose their clients or projects than businesses that serve the public." And I agree with you
I'm not saying I disagree with your position, but being a Trump supporter or anti-choice is a choice, whereas being LGBTQ isn't, so the comparison isn't of equal demographic descriptors.
This isn't about defining a business model. It's about defining discrimination and protected groups. By your logic above, the photographer could charge a black couple more than a white one. I know that's not what you mean, but it would be the potential result of how that law would be interpreted.
At the end of the day, a Trump rally is not a protected group, so a business can say no. Just like a shop proprietor can refuse business to said rally goers, but not to a protected group.
Healthcare falls into this quite easily.
So I agree with you, but food for thought as I was mulling this over: what about someone building a deck? I shouldn't discriminate who I build a deck for based on color or orientationn because building that deck doesn't expose me to anything I object to (I'm using "I" universally here - I'm queer positive and don't build decks). But like if I'm a boudoir photographer who is squicked by queer sexuality I ought to be able to decline a shoot.
So I don't know that the line is just a one on one service. That's not quite there, but it's close. I recognize the need to protect folks from being forced to witness or participate in things they object to, but I also recognize the need to protect minority groups from being excluded from the benefits of society.
I also think it would do people good to get over themselves and be exposed to things they find uncomfortable and grow as a person, but I recognize that isn't anything that can be forced on someone.
Yeah I agree that it doesn't seem to be a firm hard line, but maybe that's a good thing. And honestly, to me it's one of those things that, from a purely economic standpoint, it's just opening up that opportunity to competitors.
So you don't wanna photo gay weddings? That's cool, someone else will.
Gig worker versus someone providing a service to the general public. A wedding photographer is not on the job until you both accept the terms and sign a contract.
Besides, do you really want a wedding photographer that doesn't want to be there and has to be legally forced?
I'd say anything that could be considered as creative, and isn't necessary for life.
That said, I'd rather non-essential creatives be allowed to discriminate. Who wants a closeted homophobe photographing their wedding? I'd rather a non-professional friend do it with their cell phone.
Should they also be allowed to have a whites only business? Because I'm pretty sure they legally can't discriminate that way. It's only okay if someone is LGBT+.
No. But he should be able to reject creating something that says “whites only” or “straights only”.
Example:
Denying a “white power” photo session - should be legal
Denying taking senior photos because the client is white - should not be legal
Denying professional headshots because the client is gay - should not be legal
Denying a “gay pride” photo session - should be legal (though you’re an asshole if you do it IMO)
But the thing is, don’t even give a reason. You don’t have to take every job, and you don’t have to say why. If you make the stand to not take a certain job because of political reasons, you are bringing negative attention on yourself
So you're saying minorities don't have a right to anything but the bare essentials?
Or are you saying the right of bigoted business owners to discriminate trumps the right of individuals to be treated equally?
Is mixing a drink creative?
Is hairstyling creative?
Is designing landscapes creative?
Is putting shingles on a house creative?
Is doing electrical work creative?
What type of work that requires some level of skill and design specific to the project not creative?
Why don't minorities deserve the right to hire the same businesses as everyone else?
This is basically how it's handled. In the Masterpiece Cake case it wasn't about selling the couple "just" a cake. If they'd wanted one out of the case the Shop was legally required to sell them one. They wanted a custom cake and that falls under "creative" which changes the rules.
The United States has long held that artistic expression, basically creative work, is protected under the 1st Amendment as a type of speech and the Government cannot compel speech without extreme need and even then it can only do it narrowly and temporarily.
What we really have with these is a collision between individual rights. Is it fair for the Government to abrogate the 1st Amendment Right of one person by compelling them to speak (create art) in order to satisfy the 14th Amendment Right of another person?
It may seem obvious but consider the controversy around Piss Christ. It was art and was thus subject to 1st Amendment protections and without those protections it would have been removed.
So not allowing art, creative work, 1st Amendment Protections would cause a pile of other problems. There is no perfect solutions when rights collide, there are only trade-offs.
I think the difference comes down to creative outlets. Just like with the "create a website for same-sex weddings". I also feel a photographer should be able to deny a Trump themed wedding or cake. But if it's a general service or product offered to everyone, you shouldn't be able to deny a person just for being gay or black or anything protected. I don't know if I'm elaborating my thoughts about it well but do you get where I'm coming from?
A wedding photographer offers their services to everyone having weddings. If that photographer refuses to photograph same-sex weddings, is that not the same as denying service to someone over their sexuality?
The United States has long held that creative work, art basically, is a form of Speech and protected under the 1st Amendment. This means that compelling art is the same compelling speech and boy howdy are there a bunch of laws around that, laws that society really needs to have.
So it's a collision between rights:
On the one side we have the Photographer and their Constitutional Claims to not be compelled to create art (speak) and their right to not do something that is against their religion.
On the other side we have a LGBTQ person and their Constitutional Claim to not be denied services as a member of a protected class.
We currently draw the line by protecting the right to not be compelled to speak. In practical terms this means that buying a standard per-packaged Good or Service cannot be denied to people in a protected class. If a member of that protected class wants to purchase a Good or Service that would require creative input then the seller can refuse.
It becomes more clear if you create a scenario where someone in a protected class wants something distasteful. Let say that this Nazi here is gay and getting married to this Nazi here. They roll into one of these fine bakeries in New York and demand a custom cake in the shape of Hitler standing on a base that says "Blood and Soil" with little red fondant swastikas between each letter.
They also need a wedding photographer but their Hitler Themed wedding has a 7' tall statute of the guy standing underneath a banner that says "Arbeit Macht Frei" and they really want a shot of the two of them standing next to that statue in their finest Hugo Boss tuxedo's while they both kiss Hitler's cheeks.
So how does Society decide this mess? Do we force the Jewish bakery to make that cake because the buyers are minorities and gay? Do we force the photographer to take those pictures? Would YOU want to be forced to do either of those?
I sure as hell wouldn't because what they want is deeply and personally offensive. This is why we protect against compelled speech.
You make a good point and I thought the same thing after I made my initial comments. Another one I thought about was what if a person truly strongly believed in segregation, even maybe it being a part of their religion. Does that mean it’s ok for them to deny black people? That makes me deeply uncomfortable to put it lightly; I don’t think that is justifiable.
At the same time, there is something very personal about creative pursuits. Graphic artists can reject any idea and they don’t have to justify it. And this is something that is custom made for each customer. If the artist isn’t interested, and even is morally opposed to performing the work, even if they were legally required to do it, is it going to be their best work? Can they be penalized for deliberately doing a terrible job? I don’t know
I think this issue is why we have protected classes and why sexual orientation/preference/gender should be one.
When you say "graphic artists can reject any idea and they don't have to justify it" the implication is that they can reject it for any reason which is not strictly true.
"I don't feel like it" is a perfectly valid reason.
"I don't like Black people" is not.
A photographer can choose not to do a job because they don't feel like it, but not because it's for a Black person or a Jewish person.
The issue here that is being overlooked in a lot of the discussion (but definitely is not being overlooked by the Supreme Court) is that LGBTQ people are not a protected class. Every time one of these cases pans out it sets another precedent that will be used to keep it that way.
It's not the same as being forced to photograph a Trump rally or campaign photos. A far more apt comparison imo is race. Most people would agree that a business (any business) should not be able to exclude someone based on their race.
Not saying this is a perfect analogy, but consider housing. If you are renting or selling real estate, you can not discriminate based on protected classes. However, if you are renting a room with shared spaces, you can deny applicants for any reason.
Take something you strongly disagree with. Let's say a certain political party and their agenda. Republicans, Democrats, Nazis, a radical independent, doesn't matter what, just one you disagree with.
You've decided to provide a private service as an individual. Let's say, event planning.
A political party approaches you to host their biggest rally yet. On enquiring, what it's about, you find out it's the one you disagree with.
Should you be made to? Are you denying rights by declining your services to them, or are you exercising your own by choosing to stand by your beliefs?
Your beliefs will of course outrage some people that have opposing ones, but they are yours and they should be protected no matter what they are or how wild or somber they are. It is only when you actively start harming people or directly denying human rights is when it becomes an issue.. But you host events, you don't control water, shelter, justice, health, or food to societies. So unless that's somehow happening—and boy would that have been a regulatory fuck up—you have the freedom to not host events for things that go against what you believe, and we protect that even if people disagree with them.
You can't make someone do things against their beliefs, just as you wouldn't want to be made to do things against your own. That's called hypocrisy and double standards. We respect this by disagreeing with someone's beliefs, but we don't strip them from people and force our own on them, just because we disagree.
In the US, the civil rights legislation forces racists to serve black people and that is great.
There is a fundamental difference between immutable traits, such as race, gender, sexuality, and physical ability, and political beliefs. So your comparison to "something you strongly disagree with" is not fitting analogy.
We aren't talking about "beliefs". We're talking about actions. Discrimination is an action.
And denying people goods and services based on who they are is harming them. So it is an issue.
We can and we do, all the time. That's part of living in society.
Whether you see it or not, your opinion is carving out a way for legal bigotry when done by a christian. Of course an atheist refusing to serve this asshole bigot would open up the door for a religious discrimination case against the atheist because bigots want nothing more than to divide society. We have no obligation to defend a bigot's rights they are actively taking those same rights away from others.
To say that anyone can be a photographer belittles the skill associated with a professional photographer. That's akin to saying that you can hire anyone with a voice to be a singer. Sure, you can, but there's a qualitative difference.
That aside, would there be any sign that the photographer could put on their door that would be illegal? No Blacks, No Jews, No Women, etc… If not, play that to the logical extreme; What if all photographers in town had the same sign? What services are appropriate to deny in entirety to a specific class of people.
Yes anyone with a camera can be a photographer just like anyone with a paintbrush can be a painter. Just because it takes skill to be good at them doesn't mean the unskilled are just babies with fisherprice cameras pretending.
This potentially opened the floodgates for discrimination. Unless this is specifically only for for “hired” or “contract” If not…. Coming soon to stores in the south near you
“NO F****TS ALLOWED”
“TRA***ES NOT WELCOME”
No. He gets to choose who to work for. He doesn't get to choose not to work for entire classes of people when those classes are protected.
It's the same as if he said he didn't want black clients.
I don't think he has the right to make his business known publicly if it isn't available to the public-- all of it.
What a dumb take. There are plenty of businesses that advertise to the public but are not open to serving the public.
While I agree about a photographer not having to photograph things they don't want to, as someone else said, where do you put that line in the sand?
If the private business of a photographer can deny their services, can the private business of a hospital deny their services for those same reasons?
The problem is it's a hard discussion to have as on the one hand you want private businesses to be able to give bigoted folks the boot, but then private businesses of bigots can then throw you out all the same. Advocating for the first does mean unintentionally advocating for the latter.
The bigger problem is why are there private hospitals.
That's a much easier answer. Money and ~~bribery~~ lobbying.
Eh, if he want to leave money on the table, that is his business, I am sure there are plenty of people in a small town seeing the niche the guy just opened, the "Don't be an asshole" niche.
The discriminating photographer will find that more than just LGBT people don't want to support him. How many more is absolutely up for debate, but probably enough to support a new photographer