Re: you suggestion that the plaintiff was laying in wait – after I visited the photographers web site, I don’t find anything that would set her up as a mark. On the other hand, I do see some some very inspired photography with a unique point of view (nice work, Elane). I can imagine the plaintiff being upset and a bit irked if she were rebuffed by this particular business. I would have to have a little bit more evidence to go with the “laying in wait” theory.

In the interest of injecting a touch of absurdity into the discussion (I did read yours, Ricky, but I am going for absurd, not moronic) – could a business – say a small cafe – charge women more on the basis that their religion beliefs would require them to launder the seat cushions after each female guest? After all, 20% or more of the female customers could be assumed to be menstruating at any given time, and Leviticus 15:19-30 makes it clear that any seats these women use are to be considered unclean and should be washed. Could the hostess ask female customers if they are menstruating and then add a surcharge to the bill? Or, to account for liars, just add the surcharge for all female customers?

OK, absurdity complete. Thanks for the blog.

In fact, if you look back at the entire conversation, I never said anything other than I think a business owner should not be told who they must have as their clients (being a sold-proprietorship).

You are not asking a specific question. You are speaking in vague generalities, like being an IRS agent (which is not a sin in and of itself, although we may like to think so). You also may not know if someone is a thief or if one lies, but pretty obvious is two are gay.

I guess if we took it to your extreme the photographer should not take any clients at all since all have sinned and all sin is equal.

Does your religion have “sins of omission”? You didn’t answer the question.

Why is homosexuality the ONLY sin that counts? Does the photographer refuse to photograph previous-divorced newlyweds? Does she ask if they vary the repertoire from missionary? Does she look into their work history to see if one is an IRS agent?

When “Christian” people can accommodate all sorts of clients, but draw the line at homosexuals, which is more likely at play: prejudice or morality?

“What is the theological basis for the idea that photographing a same-sex wedding is a violation of someone’s “religious beliefs”.”

1, there is specific scriptures that talk about different sins, one of them being homosexuality. It is pretty well documented and therefore people choose to not be involved with, around, near, or have anything to do with sinful behavior if they have a choice.

it says in one case:

———

1 Corinthians 6:9-11 (New International Version)

9 Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor male prostitutes nor homosexual offenders 10 nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God. 11 And that is what some of you were. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God.

——–

Now that lists a lot of other sins at the same time too, so you can make the same argument that someone does not want to go into a bar, even if they are not going to drink, because they might be temped to become drunk. It is not up to me to determine what that threshold for each person, it is different.

When you start talking about people’s beliefs you are talking about something personal to each person and that is very subjective.

Thou shalt not observe?

P.S. I there any basis for your insinuations about the plaintiff? I’ve read about this issue before and I seem to recall that the plaintiff had seen the photographer’s work from another wedding. Surely, you could prove the accusation that she was shopping around by confirming with other photographers that she sought to contract their services and backed out when they agreed.

It really is amazing how opposition to gay people seems to carve out an exception to bearing false witness.

You write: “You both see this as a discrimination issue, which is telling all by itself as to where you stand. If this person, being a ‘Christian Photographer’ has mostly Christian clients for one reason or another, FORCING the photographer to shoot a gay wedding could very well be detrimental to her business, something the state can not do, and should not do.”

First, the word “forcing” is interesting, especially since you set it out in capital letters. Perhaps the point is subtle, but no one is forcing anyone to do anything, nor is an American court likely to order or allow the “forcing” of a photographer to shoot a gay wedding. The appropriate remedy is an award of money damages, which, if I recall correctly, is what the court awarded.

Second, I’m not sure what you mean that I “see” this as a discrimination issue—legally, that is the issue, from the plaintiff’s side: If a wedding photographer refuses to shoot a gay wedding, does that act of discrimination violate the civil rights of the gay couple?

The issue you raise, regarding religious freedom, is a defense in this context, apparently raised by the defendant here: If a wedding photographer incurs liability for refusing to shoot a gay wedding on the ground that the refusal was impermissible discrimination in violation of the plaintiff’s civil rights, does that imposition of liability abridge the photographer’s right to free exercise of religion?

In other words, it’s not a matter of “seeing” discrimination—the plaintiff already did that by raising the claim on that ground. And, as a matter of discrimination, from what I understand of the applicable law (the New Mexico Human Rights Act), it’s clear that the discrimination occurred.

The religious freedom issue is much more difficult and not nearly so cut-and-dried as you seem to think, and as the commenter “rickey” seems to think when he or she (apologies for my ignorance on that point) writes: “Why can’t this Christian couple’s religious convictions be tolerated?”

From the “other side” of the question, there is a deep and troubling concern that religious people are knowingly setting foot on a slippery slope when they raise these kinds of claims. Let me explain, with a little background.

Under the current law of religious freedom, a “neutral law” of “general applicability” is constitutional, even if it burdens religious practice. In other words, so long as the law doesn’t pick out religious people and specifically burden them, but is equally applicable to everyone, it’s okay. That’s from the U.S. Supreme Court case of Employment Division v. Smith. When that case came down, religious people were pretty upset and Congress passed the Religious Freedom Restoration Act (or “RFRA”), which gave the government a much higher burden to overcome when a citizen claimed that the law kept him or her from some religious practice. The Court found that unconstitutional, but said such laws are within the purview of the state governments. So many state governments have passed similar laws. I’m not sure if the photographer’s defense in this case arises under such a law, but your concerns are essentially the kind that a RFRA is supposed to address.

Some of us worry about these laws, though, in no small part because their effect is to put a legal tool in the hands of religious people that non-religious people do not have. If a Christian files suit under a state RFRA, claiming that a law burdens his or her free exercise, which arises from the convictions of his or her faith, the Christian will probably win. But if a non-religious person with strongly held beliefs feels that his or her practice of life is somehow circumscribed or limited by a law, no RFRA claim is available.

Furthermore, how far can a religious person, such as a Christian, go with these claims? The limits are not yet clear. But there are plenty of examples of Christians who fervently believe that their religion trumps all law, including the Constitution. Does “free exercise” mean Christians are exempt from the law and the Constitution? Obviously, if we want to remain a nation ruled by law rather than some form of tyranny, a line must be drawn somewhere. From this side of the question (i.e., from the side that disagrees with your position), the most prudent place to draw the line is simply to nip it in the bud and require religious people to adhere to those “neutral laws” of “general applicability,” such as ones that forbid discrimination on the basis of race, religion, sex, sexual orientation, and so on.

The conflict on that point also raises a more fundamental problem: What, exactly, is religion? Claims have been raised in court by people who practice religions of their own design and founding. Officially, judges are not supposed to distinguish between “real” religions and “fake” ones, although they are allowed to ask whether the claimant is “sincere” in whatever belief he or she claims. But in practice, that must be a difficult call. And what about the religious people who insist that people like me, who claim no religious beliefs, are actually just as religious as anyone else, we just use different words for what we think?

In my view, it’s not just a simple matter of “tolerating” the “convictions” of someone who doesn’t want the law to apply to his or her conduct. Rather, it raises some of the deepest possible issues, relating to the source and meaning of law and religion, which reach to the fundaments of our society, whose continued existence is essential to us all.

My point is not that the convictions of Christians or photographers or anyone else should be disregarded, but that their claims are not so simple a matter as they’d like to believe. Part of the problem, in my opinion, arises from persistent misunderstanding on the part of religious people, which I tried to touch on in my comment above, which confuses the difference between beliefs and conduct. But religious people will insist just as strongly that their beliefs compel certain conduct. How, then, do we maintain a society where people are allowed to have differing beliefs, which compel them to mutually exclusive conduct, and still protect all citizens equally under the law? These problems and questions trouble me daily.

Finally, though I am not a professional photographer, I have occasionally used such services, which typically involves looking at some of the work the photographer has done before deciding to hire. From that perspective, the idea that it’s reasonable for a prospective customer or client (not sure which term your profession uses) to ascribe to the photographer some personal ideological viewpoint based on the prior subjects of his or her work seems, at first, patently absurd to me. But maybe I come by that perspective only because I work in the legal field, where taking up causes one does not personally agree with or approve of—and representing them with as much zeal as one might have if one did approve of them—is just a part of being professional and recognizing that even the people you loathe deserve competent representation in court. Having the experience of, on occasion, working both for people I find despicable and against people with whom I sympathize leaves me with little warmth for the claim that a professional can or should be judged by his or her clients or customers. Part of me wants to say, “Just grow up, get over it, and be professional.” But I have to remind myself that I started out as a musician and ultimately changed course to law after deciding that I could not stomach producing art for pay, and one of my music professors said something to the effect, “Just grow up, get over it, and be professional.” So I certainly see both sides.