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Is refusing to photograph a gay marriage properly considered discrimination based on sexual orientation?

The Supreme Court declined to hear the Elane Photography case, so we won’t find out for a while whether the Court will recognize a First Amendment right not to photograph gay weddings. Meanwhile, I think there was potentially a more basic problem with the New Mexico Supreme Court’s ruling against the photographer, which is its holding that refusing to photograph a gay wedding based on moral objections to such marriages constitutes, as a legal matter, discrimination against gays. This was an issue of New Mexico law, and therefore not reviewable by the Supreme Court, but I think other courts would do well to draw a different line.

Let’s first assume that Elane Photography, as its attorneys asserted, had gay clients, and did not discriminate against them when they sought photography services. So Elane Photography did not discriminate against gays in general. Let’s also assume, in the absence of any known facts to the contrary, that Elane Photography would also decline to photograph other ceremonies it found immoral, such as a devil-worshiping ceremony, a polygamous heterosexual marriage, or a Buddhist offering to idols.

This seems like sufficient evidence to at least conclude that Elane Photography wasn’t singling out gays for special disapproval because they are homosexuals, but rather upheld moral standards based on the owner’s Christian beliefs. Given that the Christian belief that the only proper sexual coupling is one man and one woman in marriage long predates societal recognition of the category of “homosexual,” it would seem obvious that the belief system itself did not come into being as an excuse to discriminate against that category (which is not true in my brit milah example below).

So why might this nevertheless be deemed discrimination based on sexual orientation? The New Mexico Supreme Court argued “that when a law prohibits discrimination on the basis of sexual orientation, that law similarly protects conduct that is inextricably tied to sexual orientation.”

So let’s tease this out for a moment with what strikes me as analogous example. Imagine a photographer, who instead of being a conservative Christian, is a whole-earth hippie type. He tries to run his business consistent with his moral views. Among those views is his belief that circumcision is a violation of a child’s human rights. He has Jewish clients, but when one of them asked him to photograph his son’s brit milah (circumcision) ceremony, the photographer declined, stating that he won’t photograph circumcision celebrations.

Assume the photographer lives in a jurisdiction that bars discrimination based on religion. Brit milah is inextricably tied to the Jewish religion, given that the Torah not only commands it, but states that any uncircumcised male “shall be cut off from his people.” Would it make any sense in this context to argue that the photographer is guilty of discrimination against Jews, because “when a law prohibits discrimination on the basis of religion, that law similarly protects conduct that is inextricably tied to religion?” I don’t think so.

Now, it’s true that circumcision is not only practiced by Jews in the U.S., but I don’t think that makes a difference. In some European countries, with few exceptions infant circumcision is associated almost entirely with Jews (Muslims do it later, as I understand it), and I think it would be equally wrong to say that a photographer in such a country is discriminating against Jews by refusing to photograph circumcisions, in the absence of any evidence that (a) he otherwise refuses Jewish clients; or (b) he has many strong moral beliefs, but this is the only one he enforces in his business.

Perhaps there is some reason to distinguish the brit milah example from the gay wedding example, or perhaps I’m wrong that the refusal to photograph a brit milah shouldn’t, by itself, be considered discrimination against Jews. Feel free to try to persuade me in the comments.

UPDATE: I think something I wrote in the comments is worth repeating here: The point to emphasize is that Elane Photograpyhy was not saying that it doesn’t want to photograph a gay wedding ceremony because gays are immoral, the owner was saying she doesn’t want to participate because both parties are women, and the Bible says that a marriage is between a man and a woman. I assume, in fact, that if the two women had said they are not gay but are getting married for some other reason (use your imagination), the owner would have had the same reaction. If she wouldn’t have the same reaction, THEN you have a good case for discrimination based on sexual orientation. Analogously, if a photographer was willing to photograph a non-Jewish infant circumcision celebration, but not a Jewish one, then there would be a good case for religious discrimination. But one can’t just assume that the photographer objects to Jews as such because he claims a moral objection to brit milah.

FURTHER UPDATE: Did the New Mexico legislature intend to ban discrimination by “public accommodations” in the provision of services to same-sex weddings? It’s unlikely, given that when the relevant statute was amended to include sexual orientation discrimination in 2003, New Mexico did not recognize same-sex marriage, and thus was itself discriminating against same-sex couples with regard to weddings. Indeed, the New Mexico legislature never did recognize same-sex marriage, though the state supreme court stepped in last year.

Oh, and all of the above doesn’t negate the fact that if a particular photographer refuses to photograph a same-sex wedding “because I don’t want to have anything to do with gays,” that would indeed be a clear case of discrimination based on sexual orientation.

David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA. His latest book, Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law, will be published in November.



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