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01/05/2010 03:09:54 PM · #3751 |
Originally posted by johnnyphoto:
All I'm saying is that photography is not really a "service" in the same sense that food catering or limousine rentals are. Photography is a creative art form just like writing music, reporting the news, writing film scripts, painting, etc. Artists should be able to create whatever art they want to. However, artists should not be able to pick and choose who they want to sell their art to. I think it's wrong for a painter to say, "I will not sell my art to a French person". But I think it's okay to say, "I will not create art that depicts anything French." In the case of Elane Photography, the business was arguing that they have the right to create art that only depicts straight couples (which is true according to freedom of speech laws). The prosecutors were arguing that Elane Photography cannot choose whom to sell their services to (which is also true according to human rights laws).
The court ruling forces the artist to create art that the artist doesn't want to create. Basically, the courts are not dictating which clients Elane Photography can sell its services to, rather the courts are dictating what photographs the photographer is allowed to take. |
Wouldn't that be like a gourmet chef at a resturant refusing to cook for a particular type of person? One could argue they're are as much of an artist as a wedding photographer. |
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01/05/2010 03:13:10 PM · #3752 |
| All this crap is why the government should stay out of your business and this type of lawsuit dismissed. |
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01/05/2010 03:26:05 PM · #3753 |
Originally posted by johnnyphoto:
Okay, I shouldn't have said "only the Democratic Party".
All I'm saying is that photography is not really a "service" in the same sense that food catering or limousine rentals are. Photography is a creative art form just like writing music, reporting the news, writing film scripts, painting, etc. Artists should be able to create whatever art they want to. However, artists should not be able to pick and choose who they want to sell their art to. I think it's wrong for a painter to say, "I will not sell my art to a French person". But I think it's okay to say, "I will not create art that depicts anything French." In the case of Elane Photography, the business was arguing that they have the right to create art that only depicts straight couples (which is true according to freedom of speech laws). The prosecutors were arguing that Elane Photography cannot choose whom to sell their services to (which is also true according to human rights laws).
The court ruling forces the artist to create art that the artist doesn't want to create. Basically, the courts are not dictating which clients Elane Photography can sell its services to, rather the courts are dictating what photographs the photographer is allowed to take. |
wrong again. all of your examples include persons creating art, and if one of THEM refuses service to a gay / black / latino / martian, then they as artists would find themselves committing discrimination.
(ok, the limo driver probably isn't creating much art) |
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01/05/2010 03:32:54 PM · #3754 |
I guess, on reflection, the way to look at it is like this:
Despite the fact that some of us intuitively feel there's a real difference between, say, a restaurant and a wedding photography business, in reality there isn't. To understand why, imagine a small town where a hypothetical gay couple fetches up on a road trip, where they walk into the only hotel and the proprietor says "We don't rent to gays!". Depressed, our couple heads down the street to the only restaurant in town, where the waitress says "I'm sorry, we don't serve gays!". So they head to the corner market, where they are told they can't buy food there. By now they just want to get out of town, but they need gas, and guess what? The only service station is manned by a guy that hates gays as well, and he refuses to sell them gas.
Now, this is hyperbolic of course, but still that's EXACTLY what it used to be like to be black in some places in America, right?
What does wedding photography have to do with this? I donno, but where do you draw the line? It seems obvious to me, upon reflection, that if you permit individuals to make choices like that, then you can go backwards easily to where institutions have the same right of choice, and it's probably simpler just to tell all the haters to get over it, it's no longer acceptable to behave that way.
So no matter how ridiculous it seems to me that the government can come up to me, and individual, and tell me that I am REQUIRED to sell my time to people I don't approve of (in my case it wouldn't be gays, but it would be skinheads, neo-nazis), I am not sure I see a way around it.
R.
Message edited by author 2010-01-05 15:33:17. |
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01/05/2010 03:32:55 PM · #3755 |
Originally posted by Louis:
Originally posted by DrAchoo:
Dear Elane,
I would like you to come photograph our Skinhead Rally. We are willing to pay promptly and will include travel expenses. Don't say no!
Sincerely,
Adolf |
I'm surprised and dismayed that you are able to invent this analogy. I honestly don't know if the two scenarios are legally comparable in the US. But it seems to me morally reprehensible to draw a comparison between them.
In Canada, we have hate speech laws, where promulgation of hate speech is proscribed. Photographing and publishing such an event for purposes of endorsement of its message would probably be illegal. I kind of like it that way. In Canada, we have recognized that one may not discriminate against others based on their genetics, their sexuality, their age, and other innate factors that have nothing to do with their social behaviour, or their ability to discern right from wrong. We protect people from those who would harm them, physically and otherwise, based on these arbitrary traits. We have proscribed discrimination against people in the form of preferred definitions of words such as "marriage". I like it that way.
Originally posted by DrAchoo:
BTW, just for clarity. The "sexual orientation" part of the discrimination law is specific to the state of New Mexico (and perhaps other states) and does not exist in Federal anti-discrimination laws. |
In my reply, I was careful only to mention the state's laws. |
Well, the analogy was meant mainly tongue-in-cheek and doesn't apply anyway because "ideology" is not among the factors you cannot discriminate against. I was going for a feel though to try to encourage you to put yourself in her shoes.
Anyway, I will note that a while back on this thread people were accused of being Henny Penny when they worried about churches being forced to accomodate same-sex marriages. In this light I would say, at the very least, it's a reasonable concern.
However, Elane pretty clearly broke the law to me as it is written. The courts ruled correctly. This doesn't make her action moral or immoral, but does make it illegal. I'm not sure anybody was making a moral judgement here, but our conversation about the courts just previous does help us keep things clear. |
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01/05/2010 03:42:40 PM · #3756 |
Originally posted by Bear_Music:
I guess, on reflection, the way to look at it is like this:
Despite the fact that some of us intuitively feel there's a real difference between, say, a restaurant and a wedding photography business, in reality there isn't. To understand why, imagine a small town where a hypothetical gay couple fetches up on a road trip, where they walk into the only hotel and the proprietor says "We don't rent to gays!". Depressed, our couple heads down the street to the only restaurant in town, where the waitress says "I'm sorry, we don't serve gays!". So they head to the corner market, where they are told they can't buy food there. By now they just want to get out of town, but they need gas, and guess what? The only service station is manned by a guy that hates gays as well, and he refuses to sell them gas.
Now, this is hyperbolic of course, but still that's EXACTLY what it used to be like to be black in some places in America, right?
What does wedding photography have to do with this? I donno, but where do you draw the line? It seems obvious to me, upon reflection, that if you permit individuals to make choices like that, then you can go backwards easily to where institutions have the same right of choice, and it's probably simpler just to tell all the haters to get over it, it's no longer acceptable to behave that way.
So no matter how ridiculous it seems to me that the government can come up to me, and individual, and tell me that I am REQUIRED to sell my time to people I don't approve of (in my case it wouldn't be gays, but it would be skinheads, neo-nazis), I am not sure I see a way around it.
R. |
Yeah...that's about where I fall on this one as well.
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01/05/2010 03:46:44 PM · #3757 |
| Probably the real world thing to do would have been to say, "I will do your wedding, but I must, in good conscience, tell you I strongly disagree with same-sex unions." That would be the best thing to do because you can't refuse, but it wouldn't really be fair to anybody if you didn't state your feelings. Who would really want a photographer like that at their wedding? |
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01/05/2010 03:53:11 PM · #3758 |
Originally posted by DrAchoo:
Probably the real world thing to do would have been to say, "I will do your wedding, but I must, in good conscience, tell you I strongly disagree with same-sex unions." That would be the best thing to do because you can't refuse, but it wouldn't really be fair to anybody if you didn't state your feelings. Who would really want a photographer like that at their wedding? |
I agree. "Your lifestyle disgusts me!" *click* "You are going against the laws of nature!" *click* "God condemns this union in the strongest possible terms! Er... could you move a little to the left, please?" *click* |
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01/05/2010 04:04:50 PM · #3759 |
Originally posted by rossbilly:
wrong again. all of your examples include persons creating art, and if one of THEM refuses service to a gay / black / latino / martian, then they as artists would find themselves committing discrimination.
(ok, the limo driver probably isn't creating much art) |
Except (and this why I'm not wrong) Elane was not refusing her services to a gay person. In her email Elane said, "I don't photograph same sex ceremonies". She did not say, "I don't offer my services to gays". Elane did not refuse to sell photographs to the same sex couple, she simply refused to create art that depicted a gay wedding ceremony.
If a deli refuses to make a sandwich for a gay/black/republican that would be wrong. But what if the deli is owned by a Muslim person, so they don't sell ham sandwiches? In that case is it wrong if the deli owner says, "I don't make ham sandwiches"? I don't think so.
Message edited by author 2010-01-05 16:06:02. |
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01/05/2010 04:05:03 PM · #3760 |
Originally posted by johnnyphoto:
It's human rights vs. freedom of speech. |
Where do you get freedom of speech from a refusal of photographic services to a couple? |
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01/05/2010 04:07:58 PM · #3761 |
Originally posted by yanko:
Originally posted by johnnyphoto:
It's human rights vs. freedom of speech. |
Where do you get freedom of speech from a refusal of photographic services to a couple? |
Like I just said, it's not an issue of refusing services. It's an issue of refusing to create art with a certain subject (in this case a gay wedding ceremony). Freedom of speech = ability to create whatever art you want. |
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01/05/2010 04:10:29 PM · #3762 |
Originally posted by DrAchoo:
Anyway, I will note that a while back on this thread people were accused of being Henny Penny when they worried about churches being forced to accomodate same-sex marriages. In this light I would say, at the very least, it's a reasonable concern. |
If a church rents their facilities to the general public then they could be required to offer the same terms to a same-sex wedding party. However, there would be no requirement for any church personnel to perform, officiate at, or endorse the ceremony. Renting out the facilities is a for-profit, "public accomodation" enterprise unrelated to their tax-exempt religious function. |
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01/05/2010 04:13:55 PM · #3763 |
Originally posted by johnnyphoto:
Freedom of speech = ability to create whatever art you want. |
Not when you're selling it to order as part of a business. |
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01/05/2010 04:13:57 PM · #3764 |
Originally posted by johnnyphoto:
It's an issue of refusing to create art with a certain subject (in this case a gay wedding ceremony). Freedom of speech = ability to create whatever art you want. |
But you are not creating art for you or for the sake of art - you are "creating art" at the request of clients for THEIR consumption - and in that sense it is indeed a service. |
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01/05/2010 04:16:33 PM · #3765 |
Originally posted by johnnyphoto:
Except (and this why I'm not wrong) Elane was not refusing her services to a gay person. In her email Elane said, "I don't photograph same sex ceremonies". She did not say, "I don't offer my services to gays". |
That's silly. You don't get a same sex ceremony without the gayness. Or whatever you want to call it. And your analogy is flawed. An Italian restaurant isn't obligated to sell Dim Sum either, but you don't hear shrill cries from the Chinese of freedom of cookery being violated. |
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01/05/2010 04:48:26 PM · #3766 |
Originally posted by Louis:
Originally posted by johnnyphoto:
Freedom of speech = ability to create whatever art you want. |
Not when you're selling it to order as part of a business. |
You need to check out the link Johnny provided earlier here. It would seem to disagree with you.
To quote (although it may just be opinion):
The Court has long held that speech retains full protection even when it̢۪s sold for money. (Fully protected speech products such as newspapers, books, and the like are routinely sold for money.) The freedom from compelled speech applies to such sold-for-money media as well as to other media.
Message edited by author 2010-01-05 16:50:03. |
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01/05/2010 04:51:30 PM · #3767 |
Originally posted by Louis:
An Italian restaurant isn't obligated to sell Dim Sum either, but you don't hear shrill cries from the Chinese of freedom of cookery being violated. |
Look at it this way... Elane refuses to create wedding photos depicting a same sex marriage. She refuses it on the basis that she only photographs weddings, and she does not believe that a marriage between two gay people can be still be defined as a marriage. The client then sues because Elane's idea of "wedding" is different.
Now... An Italian chef refuses to cook food that includes tofu. The chef refuses it on the basis that she only cooks Italian food, and she does not believe that tofu can be mixed with Italian food and still be defined as Italian food. The customer then sues the restaurant because the chef's idea of Italian food is different.
You don't hear shrill cries from the Chinese because the courts aren't telling Italian chefs what "Italian food" may or may not include. You do hear about Elane Photography's case because the court is telling Elane what "wedding photography" may or may not include. If the government passed a law that required all Italian restaurants to cook with tofu, you might begin to hear shrill cries from Italians.
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01/05/2010 04:54:41 PM · #3768 |
Originally posted by DrAchoo:
Originally posted by Louis:
Originally posted by johnnyphoto:
Freedom of speech = ability to create whatever art you want. |
Not when you're selling it to order as part of a business. |
You need to check out the link Johnny provided earlier here. It would seem to disagree with you.
To quote (although it may just be opinion):
The Court has long held that speech retains full protection even when it̢۪s sold for money. (Fully protected speech products such as newspapers, books, and the like are routinely sold for money.) The freedom from compelled speech applies to such sold-for-money media as well as to other media. |
Isn't this just a misdirection on the actual point of contention here? Print media, even when sold for money, is protected and can't be prosecuted for printing things people don't agree with, but they CAN still be prosecuted for refusing to sell their product to specific groups. It still has nothing to do with 'free speech'.
Having said that, however, doesn't the service industry have some kind of blanket exemption. You know, those "The Right to Refuse Service To Anyone at Anytime" signs you see all over the place? Couldn't Elane have evoked something of that nature? Was her mistake in naming the specific refusal instead of just giving a general one?
Message edited by author 2010-01-05 16:59:09. |
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01/05/2010 04:57:57 PM · #3769 |
Originally posted by DrAchoo:
Originally posted by Louis:
Originally posted by johnnyphoto:
Freedom of speech = ability to create whatever art you want. |
Not when you're selling it to order as part of a business. |
You need to check out the link Johnny provided earlier here. It would seem to disagree with you.
To quote (although it may just be opinion):
The Court has long held that speech retains full protection even when it̢۪s sold for money. (Fully protected speech products such as newspapers, books, and the like are routinely sold for money.) The freedom from compelled speech applies to such sold-for-money media as well as to other media. |
I would like to add that the website DrAchoo just quoted is a group blog created by law professors. I would think that a group of law professors should have a more thorough understanding of the first amendment than Louis.
Originally posted by K10DGuy:
Isn't this just a misdirection on the actual point of contention here? Print media, even when sold for money, is protected and can't be prosecuted for printing things people don't agree with, but they CAN still be prosecuted for refusing to sell their product to specific groups. It still has nothing to do with 'free speech'. |
I feel like I've been repeating this over and over...
It has everything to do with free speech when you consider that Elane was simply refusing to create photographic art that depicted a gay couple getting married. Elane was not refusing to sell photographic art to a specific group (in this case gays).
Message edited by author 2010-01-05 16:58:46. |
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01/05/2010 04:59:16 PM · #3770 |
Originally posted by johnnyphoto:
Look at it this way... Elane refuses to create wedding photos depicting a same sex marriage. She refuses it on the basis that she only photographs weddings, and she does not believe that a marriage between two gay people can be still be defined as a marriage. |
Right. She's discriminated against her would-be clients. She violated the human rights of those two people, and she broke the law. The injured parties need recourse.
Try to fit that into a discourse about menus. |
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01/05/2010 05:00:00 PM · #3771 |
Originally posted by johnnyphoto:
Originally posted by DrAchoo:
Originally posted by Louis:
Originally posted by johnnyphoto:
Freedom of speech = ability to create whatever art you want. |
Not when you're selling it to order as part of a business. |
You need to check out the link Johnny provided earlier here. It would seem to disagree with you.
To quote (although it may just be opinion):
The Court has long held that speech retains full protection even when it̢۪s sold for money. (Fully protected speech products such as newspapers, books, and the like are routinely sold for money.) The freedom from compelled speech applies to such sold-for-money media as well as to other media. |
I would like to add that the website DrAchoo just quoted is a group blog created by law professors. I would think that a group of law professors should have a more thorough understanding of the first amendment than Louis.
Originally posted by K10DGuy:
Isn't this just a misdirection on the actual point of contention here? Print media, even when sold for money, is protected and can't be prosecuted for printing things people don't agree with, but they CAN still be prosecuted for refusing to sell their product to specific groups. It still has nothing to do with 'free speech'. |
I feel like I've been repeating this over and over...
It has everything to do with free speech when you consider that Elane was simply refusing to create photographic art that depicted a gay couple getting married. Elane was not refusing to sell photographic art to a specific group (in this case gays). |
You can go 'over and over' something fallacious and practically made up as many times as you want. It doesn't make it true. |
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01/05/2010 05:00:13 PM · #3772 |
Originally posted by johnnyphoto:
Originally posted by yanko:
Originally posted by johnnyphoto:
It's human rights vs. freedom of speech. |
Where do you get freedom of speech from a refusal of photographic services to a couple? |
Like I just said, it's not an issue of refusing services. It's an issue of refusing to create art with a certain subject (in this case a gay wedding ceremony). Freedom of speech = ability to create whatever art you want. |
She's free to create whatever art she wants. This ruling doesn't change that. However, if she wants to sell this art then it becomes a commodity, a product for sale. It's no different had DPCPrints refused a print order from someone based on sexual orientation. |
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01/05/2010 05:00:20 PM · #3773 |
Originally posted by johnnyphoto:
I would like to add that the website DrAchoo just quoted is a group blog created by law professors. I would think that a group of law professors should have a more thorough understanding of the first amendment than Louis. |
Correction: I have no understanding of the first amendment. |
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01/05/2010 05:03:47 PM · #3774 |
Originally posted by Melethia:
Originally posted by johnnyphoto:
It's an issue of refusing to create art with a certain subject (in this case a gay wedding ceremony). Freedom of speech = ability to create whatever art you want. |
But you are not creating art for you or for the sake of art - you are "creating art" at the request of clients for THEIR consumption - and in that sense it is indeed a service. |
Damn. Yanko'd again. Oh. Wait -  Yanko himself stepped in and said the same thing! Cool. Carry on.
:-) |
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01/05/2010 05:05:48 PM · #3775 |
| Aside - I can never figure it out... is one yankod (yankoed?) when someone says something within a couple of seconds of someone else saying the same thing, or when someone says something, gets ignored, someone else says the same thing, and everyone falls all over it? DPC culture has always eluded me... :( |
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