I’ve been consumed recently by an issue that I learned about through Metafilter: a wedding photographer in a very conservative town in Colorado said he was in a quandary over whether, if the question came up, he would shoot a gay wedding and risk offending potential straight clients, or refuse to shoot the gay wedding and risk offending gay clients, and possibly risking a discrimination complaint.
The photographer mentioned a recent case heard before the New Mexico Human Rights Commission in which a lesbian couple complained that a photographer refused to shoot their commitment ceremony, and while they did not demand punitive damages, they won reimbursement of more than $6,000 in legal fees, effectively penalizing the photographer for their decision not to offer their services. The Commission also found that the wedding photographer was discriminatory against same-sex couples.
I don’t like bigotry. I prefer to be kind to everyone. And frankly, I don’t let my religious views decide who I will be friends with, talk to, or conduct commerce with. So, if I were to become a wedding photographer, I would shoot a gay wedding. Because I would approach it from a photojournalist perspective, it would be clear that my presence at the event was neutral, just as it would be for a straight wedding. And if any of my future clients have some sort of “have you shot a gay wedding before?” litmus test, they are probably too dumb to be my client anyway.
But the more I thought about it, the more I came to think that there are two issues at play: the right of equal access versus the right of an artist to define the scope of their work. Specifically, I believe that the freedom of the press mentioned in the First Amendment to the U.S. Constitution includes the freedom to create works of authorship, as well as the freedom not to create works of authorship. I do not think it is constitutional for a law to compel any person to create original works of authorship (photos, poems, videos, plays, etc.) that express an idea that person doesn’t want to express.
So if a photographer doesn’t want to express support for gay marriage, what about a caterer? Do they also get to refuse service at a gay wedding, on the basis that they don’t do gay weddings? I would argue no, because the caterer provides a service that is not considered a “work of authorship fixed in a tangible form of expression” under U.S. copyright law. As creative as a chef is, and while the food may be called a work of art by some, it is not considered a work under the law. Images, on the other hand, are necessarily considered works of authorship under the law. My argument is very specifically about the rights of artists to determine what works they will and won’t create, and what ideas they will and won’t express.
It sets a bad precedent when a law compels the reluctant creation and publication of any work of authorship, no matter how well-intentioned that law may be. Just because a person takes money for their work doesn’t mean they should lose the right to reject a job because of the ideas they would be asked to express (which is entirely different than rejecting the job on the basis of a client’s skin color, gender, race, religion, etc.) If there is a photographer that only wants to create images of Catholic weddings, because they think all non-Catholic congregations to be heretical, and that creating images of them expresses ideas legitimizing the beliefs of the heretics, they should have that right. It’s discriminatory, but so what? There are probably wedding photographers who think that Catholicism is really paganism, and won’t create images of Catholic weddings. That’s fine by me, too, but it is probably illegal in New Mexico. And if it is your wedding, do you really want a photographer that is only there because you approached him or her and the law compels his or her presence? Or do you want a photographer that is eager to please you?
Federal law considers photographers to be similar to poets, writers, graphic artists, sculptors, musicians in that they are all people that express ideas as original works of authorship in a tangible form of expression. So if a wedding photographer can be compelled to shoot a wedding they don’t want to, it creates a precedent in which a person can be forced, by law, to communicate ideas they don’t want to. What’s to stop a later law from compelling a pacifist poet to write an ode to glorious war? What’s to stop a conservative commentator from being forced to write articles in support of liberal causes? Can a photographer or painter of the future be forced to create nude images against their will? Can a vegetarian musician be forced to do an ad campaign for the beef industry? Maybe a newspaper can be forced by law to report on something that’s not an issue they want to cover. Maybe an R&B artist can be forced to record classic rock?
If you read through the aforementioned Vanessa Willock vs. Elane Photography LLC decision by the New Mexico Human Rights Commission, you may notice the 27th paragraph under “Findings of Law”, which reads:
To the extent that Elane Photography’s arguments in this proceeding sought to raise questions as to the constitutionality of the NMHRA or questions as to an automatic preemption of of the NMHRA by the United States Constitution, the New Mexico Constitution or the New Mexico Religious Freedom Restoration Act, those questions are not before the New Mexico Human Rights Commission for determination in this proceeding, and, accordingly, are not addressed here.
Based on my non-lawyerly reading of this, I think it is possible that some part of the law that ended up penalizing the photography studio may be found unconstitutional by a court of law, if it is challenged. If it happens, perhaps you read it here first: the right to a free press includes the right not to be forced or penalized by law to create works of expression that you don’t agree with.
Technorati Tags: gay marriage, Willock v. Elane Photography, first amendment, civil rights