The Socially Acceptable Range of Discrimination, Revisited

The Socially Acceptable Range of Discrimination, Revisited

Postby admin » Tue Oct 29, 2013 3:33 am

The Socially Acceptable Range of Discrimination, Revisited
By Ken White.

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Aug 22, 2013

Back in July, in the context of a baker investigated for refusing to provide a cake for a same-sex-marriage celebration, I posed this question:

My question is this: is there a principled reason that some people are outraged when anti-discrimination laws are applied to forbid discrimination against gays, but not to discrimination against Jews, or African-Americans, or any other group?


In other words, if people are outraged that anti-discrimination laws make merchants sell goods and services to same-sex couples, is there a good reason they aren't also outraged that the same laws require the same merchants to sell to Jews, or African-Americans, or white guys like me?

I raise the question again because the Supreme Court of the State of New Mexico has issued a decision in Elane Photography v. Willock, a well-known case in which a wedding photographer refused to photograph a same-sex ceremony and was sanctioned under New Mexico's anti-discrimination law as a result.

The New Mexico Supreme Court's decision is worth reading for several reasons. First, you will see social conservatives citing this decision as encroaching Gay Tyranny and proof that soon the government may be forcing churches at subpoena-point to conduct gay marriages. The actual facts and legal analysis of the decision show otherwise; the Court carefully explains why compelling public accommodations to obey anti-discrimination laws is different than compelling speech, and its language could not be rationally used to support compelling a church to administer a sacrament in violation of its beliefs.

Second, the Court raises the same point that I have been making: that there is no logical way to attack anti-discrimination laws when they apply to gays and lesbians without attacking them when they apply to, for instance, African-Americans. Consider how the Court replies to the photographer's hypothetical about whether an African-American photographer cold be compelled to photograph a Klan rally:

Elane Photography also suggests that enforcing the NMHRA against it would mean that an African-American photographer could not legally refuse to photograph a Ku Klux Klan rally. This hypothetical suffers from the reality that political views and political group membership, including membership in the Klan, are not protected categories under the NMHRA. See § 28-1-7(F) (prohibiting public accommodation discrimination based on “race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap”). Therefore, an African-American could decline to photograph a Ku Klux Klan rally. However, the point is well-taken when the roles in the hypothetical are reversed—a Ku Klux Klan member who operates a photography business as a public accommodation would be compelled to photograph an African-American under the NMHRA. This result is required by the NMHRA, which seeks to promote equal rights and access to public accommodations by prohibiting discrimination based on certain specified protected classifications.

However, adoption of Elane Photography’s argument would allow a photographer who was a Klan member to refuse to photograph an African-American customer’s wedding, graduation, newborn child, or other event if the photographer felt that the photographs would cast African-Americans in a positive light or be interpreted as the photographer’s endorsement of African-Americans. A holding that the First Amendment mandates an exception to public accommodations laws for commercial photographers would license commercial photographers to freely discriminate against any protected class on the basis that the photographer was only exercising his or her right not to express a viewpoint with which he or she disagrees. Such a holding would undermine all of the protections provided by antidiscrimination laws.


The Court makes my point: you can't rationally attack anti-discrimination laws only when they apply to groups particularly important to you. If people want to argue that freedom of speech, or of association, or free exercise of religion means that a business should be able to refuse to provide services to gays and lesbians, then I think they need to be prepared to make the argument that those same rights protect refusal to do business with Jews or African-Americans or any other group you can name.1 [ Resolution of that argument is far beyond the scope of this post.]

The Court also rejected what I think was the photographer's strongest argument: that photography is so inherently artistic that compelling a photographer to work at an event she opposes violates the First Amendment. That was Eugene Volokh's argument, and I think it was a very colorable one, rejected rather too easily by the Court. However, as the Court suggests, it's not an argument that can be rationally limited to sexuality-based objections to work.

Finally, I recommend you read the concurrence by Justice Bosson. It's notable because it so explicitly recognizes that anti-discrimination laws necessarily involve an intrusion into personal belief, and explains — through a history of anti-discrimination law — how we got to that point:

All of which, I assume, is little comfort to the Huguenins [the owners of the photography business], who now are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views.

{91} On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

{92} In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship. I therefore concur.


Whether or not you agree with Justice Bosson's conclusion, I think it's important that he is explicitly recognizing that these laws — like so many others — involve some sort of intrusion into personal liberty of which we should be aware. You may believe that the intrusion is justified, or you may not, but our discussion of the subject is incomplete and even dishonest without that recognition.
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