Monday, April 07, 2014

Freedom of Association, Freedom of Expression, and Business

The case the high court declined to hear:
The Supreme Court has refused to hear an appeal from Christian photographers who were fined and admonished by the New Mexico Supreme Court for declining to work a same-sex ceremony, in what could be a blow to religious business owners...

Elaine Huguenin said she also has a right of artistic expression under the First Amendment that allows her to choose what pictures to take, or refrain from taking. 
I understand the “artistic expression” argument—and in fact, I’ve been trying to think of a way to word that for quite awhile now.

We as a society have decided that we’re not going to allow businesses to refuse service to customers—we’re long past the days of “no coloreds allowed”. However, there are differences between types of businesses.

If your business sells widgets in a store, you will sell widgets to anyone. That’s what we as a society say is part of the arrangement of getting a license to conduct business.

However, if some rich patron wants to commission a portrait, is the artist required to paint it? Of course the answer is no. If a corporation wants to hire an architectural firm to design a building, is the firm required to design the building? Of course not.  Must a photographer photograph a child's birthday party (age discrimination!)?  Of course not.  The difference in these examples, as opposed to the widget store, is that there is an element of artistic expression.

I’m not willing to go all the way with the artistic expression, though. If the patron wants you to paint a nude and you don’t do nudes, then you don’t paint it. Is a florist an artist, or are they selling flowers? How much individuality, how much creativity, goes into each wedding cake, as opposed to a painting?  What is the difference between "I don't do kids' birthday parties" and "I don't do gay weddings"?

When I worked for a small custom computer cable assembly firm, we didn't have to accept every order that came through the door (but we did accept them because we needed the money).   When must a business accept business, and when can it decline?

These are, to me, interesting questions worthy of exploration. The New Mexico Supreme Court did a disservice by not fleshing out the limits.


rsj said...

There is also a difference between not serving for an occasion, and not serving a group of people.

Has this business refused service to gay people entirely or just gay weddings?

I know there are some people who would see no difference between the two actions, but there is a difference.

maxutils said...

I agree with you ... this is right on the edge. I could argue it either way. What my gut tells me ... is that the photographer was probably a jerk about it and made an issue of it. To the best of my knowledge? If you were to walk in to a photographer's studio, and commission a photo shoot, there needn't be a presumption that you are gay (my ex-wife hired are photographer ... I did other stuff.) I think if yo make it a policy ... then it goes beyond the being able to decline service to anyone: but that policy is predicated on the idea that you can't use it to discriminate, just like hiring and housing. So, if you're really THAT icked out by gay marriage? Why not just lie, and say "We're booked"? I wouldn't want my wedding photographed by a business owner who was not enough of an entrepreneur to take any client possible ...

maxutils said...

I do agree though... the limits are interesting. As I indicated, my side would be ... if it can be documented that it's an established policy, it's unconstitutional. If it's a personal decision that cannot be proved to be institutional ... then the business owner is a bad person, but is legally in the right.