Photography and freedom

Hurricane Sandy has not only wreaked havoc from the Caribbean up through the mid-Atlantic and New England States, leaving the proverbial trail of death and destruction, it has also blacked me out and kept me from posting this week. With no real complaint (I'm cold at night, but alive and my insignificant other's home saw no damage) and sick of listening to people complain about what happened to them short of death or destruction - one woman on the radio sickened me and I'm sure others by whining over a few trees she lost - I post tonight! The election is tomorrow and I stick with my view of a close popular race and Obama winning the Electoral College. But, I've had enough to say about the election here and will comment more when it is all over. Tonight, one of my favorite topics - religion.

Religious accommodation

Gay marriage is still a pretty controversial subject. Personally, I believe in a generation of so, maybe 20 years, many of those who now oppose it will be claiming they were never against it, just as it is hard to find many to admit they had believed that it was okay that gays should go to jail. Yet, it is less than a decade ago that most consensual sodomy laws were made unconstitutional as a result of Texas v. Lawrence.  But, for now, many people, somewhat less than half of those polled, still oppose "gay marriage," *(see poll summary below)* and anecdotally we know that opposition ranges from head shaking to outrage. A distinct bi-coastal (pro) as opposed to western and southern (con) tilt as well as general religious opposition can be seen in the country. Obviously, more conservatives oppose it than liberals. Again, anecdotally, those who oppose tend to believe that the very word and institution of marriage is a thing that is fixed, and that they may only exist in the traditional sense. Further, some of this group believe that the law should not even recognize a committed relation between two people even if a word other than marriage is used. Although they are certainly wrong that marriage has always been deemed between one man and one woman in Western civilization, they are certainly largely correct that this has been the case. Anything else is the exception.


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* American gay marriage polls in 2012 summarized from Wikipedia article: CNN/ORC International: 54% support (same sex marriage), 42% oppose; NBC News/Wall Street Journal: 54% support, 40% oppose; ABC News/Washington Post: 53% support, 39% oppose; USA Today/Gallup Poll: 51% support, 45% oppose; Gallup Poll: 50% support, 48% oppose; Pew Research Center: 48% support, 44% oppose; ABC News/Washington Post: 52% support, 42% oppose, 5%; Public Religion Research Institute: 52% support, 44% oppose; NBC News/Wall Street Journal: 49% support, 40% oppose. Go to the Wikipedia article - http://en.wikipedia.org/wiki/Public_opinion_of_same-sex_marriage_in_the_United_States#cite_note-gallup.com-7- for the actual wording used in these polls and their dates. Feel free to argue with them for any reason, but the trend seems clear to me and the results are fairly close.

I cannot tell from these polls how many people support the idea of legal civil unions without the use of the word "marriage," but there is material in the Wikipedia article which discusses earlier polls concerning that issue. Based on a more nuanced Fox News poll, I suspect that given the additional variable of using the words "civil union," instead of "marriage," there are substantially more of those in total who would approve of legalizing same sex commitment ceremonies in general but don't want it to be called "marriage": 37% approve of "gay marriage," 33% legal gay partnership and 25% completely opposed, with the trend towards legalization since the 2010 poll.

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I've written my opinion about this before and won't repeat myself much here except to say as follows: words are mutable and legal terms especially so. It is preposterous to argue otherwise, and, those who specifically make this argument, don't make sense when pressed on it, failing to  distinguish between a thing and a word used to describe a thing. No constitutional clause gives any group of people the right to prescribe a word's meaning or to fail to recognize a law that utilizes marriage to mean something they don't want it to, just as they can can't require the law to define peanut butter the way the rest of us do. There is no such thing as a right to have marriage defined in the manner they wish.  Privately, of course, anyone can have their own opinion, but the important thing is whether it gets legal meaning that must be recognized by others. None of the above necessarily means I think that the law must require that gays have access to the same benefits as heteros in the same situation, but I believe that is the better policy. Whether it is a matter of equal protection under the law, I have not fully analyzed, but I do believe the Defense  of Marriage Act, sometimes called DOMA, is unconstitutional. Either there should be no benefits for a committed couple, or all committed couples (at least adults), should be recognized. It does not matter that it is appalling or even nauseating to other people. I have a lot of trouble dealing with facial piercings, but it would never occur to me that someone who participates in it should have less rights than I do. Best, the government should be completely out of the marriage business except perhaps for clerical reasons.

What I really want to talk about today is the idea of religious accommodation. I'll use a case that may end up in the Supreme Court as a starting point.

In New Mexico, a photographer, a married couple Elaine and Jonathan Huguenin ran a photography studio. They advertised as Christian photographers and had an unwritten rule that they did not photograph ceremonies that were contrary to their religious beliefs. Mostly, perhaps always, that meant they did not photograph same sex ceremonies. Incidentally, gay marriage was not at the time of their case or even now, recognized in New Mexico.

Eventually, the Huguenins were contacted by Vanessa Willock via email with respect to photographing her same sex ceremony with her partner, Misti Collinsworth. The Huguenins declined the job, replying that they photographed, among other things, traditional marriages. But, when Willock wrote back to get clarity on whether they would photograph her wedding she received a clearer, if polite response, "Sorry if our last response was a confusing one. Yes, you are correct in saying we do not photograph same-sex weddings, but again, thanks for checking out our site! Have a great day."

The facts of the case seem fairly clear cut. I do though have difficulty believing that Ms. Willock truly found Huguenin's reply to be hateful and that she was fearful because of it. I think she was just angry that she would not respect her marriage (ironically, even thought the State of New Mexico did not). However, there is no disagreement that the Huguenin's did not wish to photograph the wedding because it was between two women.  In any event, Ms. Willock brought a claim under New Mexico's human rights law, not seeking monetary damages (there were none, anyway), except her attorney fees, just essentially an official chastisement and fine. And the law in New Mexico is clear that establishments offering services to the public cannot discriminate based on sexual orientation, whether it be hetero, homo or bi-sexual.

The gay couple won the case in the administration Human Rights Department. It went to a trial court and they won again. They won the first level of appeal and are now appealing to New Mexico's high court. I suspect that either party, whichever is unsuccessful (my guess is the Huguenins) will appeal again.

There are a number of legal arguments I am not discussing here with respect to that case, including freedom of expression and the validity of anti-discrimination laws, but only the issue of religious accommodation - whether otherwise neutral laws be enforced against those who have religious opposition to it.

Many constitutional principles sound pretty simple until you try and apply them. For example, it seems very simple to say that if one of the states is involved in something that state action must follow the rules of "due process" required by the fourteenth amendment. So, it is easy to say that the police must follow due process rules (though, that took a long time to accomplish). But, it has also turned out that it is very difficult to say exactly what is "state action" and what is not?  For example, is a private corporation that contracts with a state to provide traditional municipal services to the public close enough to state action to have to follow its rules? How about a power authority created by a state that gets an easement wherever it likes and can have a monopoly? Or the luncheon in the State Office Building?  A few Supreme Court justices have stated that this question is one of the most difficult issues they face.

In the same way, the two strands of the first amendment religion clauses sound very simple. One says congress cannot establish religion and the other that we have free exercise of religion. But, it turns out when you try to apply both, you run into problems. Little remembered in this day and age is that at one time, this problem was  most acutely felt by Catholics, beginning in the 19th century, who were offended that public schools taught doctrine that was Protestant in nature and not Catholic. Naturally, the majority Protestants disagreed. This is a major reason why a first amendment is so necessary. The majority religions should not be able to use the government to satisfy their religious needs at the expense of the minority religions. Catholics wanted their own schools, but felt they should get the same public aid that so called "public" schools, which they saw as Protestant, received.

In 1875 President Grant came out against any public funding for religious schools and in the 1880s a future presidential candidate named James G. Blaine, no longer well known (he repeatedly lost), sponsored a constitutional amendment known as - brace yourself - the Blaine Amendment. It not only would have applied the first amendment to the states, but made it mandatory that public funds not be used for religious school. In the abstract, this seems very fair and logical. But, as Protestant doctrine was taught in public school already, this seemed very unfair to Catholics. The amendment didn't pass, but judicial decisions still largely, if not completely, favored the majority Protestants. Also, most states passed similar versions of the Blaine Amendment, which still go by that name, and some are still in effect (though they are now unnecessary and relatively irrelevant for other reasons).

The manner this is argued should be understood. It is not as if Protestants were saying or probably in many cases even thought, that they were getting an advantage. They simply argued and believed that their doctrines and beliefs were so prevalent as to be secular in nature. Even today, when the battle lines are no longer drawn between Catholics and Protestants, but Christians as a group and other religions (or those without religions) the same argument that some aspects of Christianity are so prevalent as to be "secular" in America has led to decisions such as that local government may restrict commercial activity on the Christian Sabbath and display Christmas trees. These are, of course, just examples.

It is only in the 20th century that most of liberties in the bill of rights - those which were deemed fundamental to our system of government - were judicially applied against the states by the manufactured fundamental rights doctrine.  The method used was to apply them was through the due process clause in the fourteenth amendment, as it is applicable against the states.  And, with this doctrine, not to mention the advent of increased government spending, there have been many decisions which occasionally gratify or aggravate so many people concerning religion. This is the constitutional issue that I find the most interesting and one of the most important. Fortunately for you, I'm not going to review the many cases as it would take too long and anyone really interested can wiki it or read any number of books. It is not an area of law ever likely to become completely settled. Rather, back to the question of when do our laws bend so that religious people do not need to follow otherwise neutral laws (which do not intentionally discriminate between religious groups) because to do so would accommodate their religious beliefs? In one sense it is the flip side of religious toleration, which concerns the government not favoring or persecuting any particular religions or all religion (such as a Communist country might). But, in another sense it is the very same question, which I will demonstrate in the next example. So you could say I'm discussing religious accommodation, toleration, or both.

The Mormon religion permitted, until it was made illegal, a man to have multiple wives. We know that there are some sects of Mormonism where this is still practiced illegally, though the main branch no longer supports it. Some argue that polygamy is inherently abusive and some few  that it is a matter of individual decision. Many apply to it the same argument that is applied against same sex marriage - that marriage is between one man and one woman, whether based on religion, history or just general cultural preference. This minority practice of polygamy did not have any real chance against the tidal force of monogamy.

In any event, the Supreme Court held in 1890 in one of its bigamy case, "The state has a perfect right to prohibit polygamy and all other open offenses against the enlightened sentiment of mankind notwithstanding the pretense of religious conviction by which may be advocated and practiced."  

It would not be put that way nowadays. The court would have instead said that free exercise of religion does not mean someone may be exempted from the restrictions or requirements of a valid and neutral law that generally applies to everyone because the person's religion is in disagreement -- if in somewhat stodgier language. But, is it really any different than the 19th century Supreme Court holding? It is merely the substitution of one religious point of view for another, one having the authority of the majority behind it.

That was the analogous reasoning of a more recent Supreme Court case in 1993 in which the majority held that the State of Oregon was within its rights to withhold unemployment benefits to employees fired for peyote usage, even though the employees claimed that it was part of their practice of their Indigenous American Indian religion (I'll call it the "Smith case" below). The court determined that a state could give religious exemptions based on religious belief, but did not have to do so. As often with these cases, I am simplifying to make a point.

If we did not have this rule, there would be essentially no enforceable law. Anyone could circumvent it by claiming religious disagreement. That would even, ironically, include a law forbidding discrimination against various religions. This is a very old argument and has even been used, for centuries, to justify religious intolerance.

So, what about the Huguenins? If we apply the Smith case then it is just too bad on them. But, I know that I feel in my heart of hearts that it is a wrong decision and want to think about why/  I can easily think of a rule of law that would render the opposite conclusion.  It is called the 13th amendment, which outlawed involuntary servitude. It meant slavery, of course, but why does slavery need to be wholesale? If the Huguenins can be forced to service one gay wedding, they can be forced to service many gay weddings.  Imagine that if for some reason gays in New Mexico decided for vindictive reasons to all insist on hiring the Huguenins for their commitment ceremonies. Would that not be involuntary servitude in the ordinary sense of the word (even if they were paid a lot of money)? Of course it would. And put that way, it just seems so wrong. And, why stop there. Could a man who was attracted to a child, but refrained from sex with it (so there could not be a crime), not require the same of the Huguenins. I suspect such a case would have a completely different result because of the specter of illegal sex with a minor, but, since arguably two lesbians cannot have intercourse, it is no different than a very old couple getting married, or anyone who determines not to have illegal sex.

But, of course, the country is already awash with anti-discrimination laws. Most politicians these days, for example, say that they favor the 1960s anti-discrimination laws. In fact, now, both Democrats and Republicans take credit for them. But, those laws include requirements that people service others they'd rather not in the private sector, just so long as there was some connection to interstate commerce. And, when the cases came up, the Supreme Court went to ridiculous lengths to make damn sure that everybody litigated against was included as part of interstate commerce right down to enforcing the Act against a very local club in a rural area just because it bought its furniture from another state (and other similar reaches). It is no longer really necessary to go to these lengths, because, first, nowadays, virtually every business would easily be connected to interstate commerce in a variety of ways, arguably even international commerce, just by using the internet and the telephone, and second, these Acts are now accepted both legally and morally as the law of the land. It would be political suicide to go against them and businesses would be driven under if they gainsaid them in anyway. Not too long ago one of the leading "libertarians," Rand Paul, running for a Senate seat, was pretty much forced to publicly say he was for them if he wanted to win.

The only difference between my position with respect to these laws and libertarians like Rand Paul who under pressure claimed he favored them, is that, rather than go to lengths to find them constitutional, I admit that I cannot justify them as constitutional, but think, nonetheless, because of our history, they are among the best laws ever passed and have greatly improved our country. It is a paradox sprung from the covenant with hell (that is, slavery) that was our Constitution. But, admitting that, how far can it be taken? Now, every state has anti-discrimination laws on top of the federal ones and they are not just based on skin color and ethnicity. They usually include gender, physical handicaps and sometimes, as in New Mexico, sexual orientation. This last is the difficult one because it is so unsettled whether it is a physical or psychological condition (or perhaps a mix) or a choice. Many people believe the choice option, though it strikes me as absolutely ridiculous. Knowing that gays often come out in soul-wracking fear and reluctance due to the still powerful stigma, it is just not logical to believe that absent a sex drive in that direction, they would gladly be reviled and even engage in self loathing, just to be different or have more sex partners. Plus, at least for a man, given the way our sexual apparatus works, the difficulty in performing against their sexual nature leaves the possibility that this is a matter of choice near zero for me.

Nevertheless, it is an important distinction because the only thing left to us as individuals to discriminate against others is their personal opinion and other non-heritable or non-physical criteria. You can fire someone in most places if you don't like them for a variety of reasons, including their political opinion (maybe there are laws against that, but I am not aware of them). You can still refuse to serve people you don't like, and they are left with the option of going away quietly, or, perhaps, manufacturing a case based on a false claim of discrimination under one of the forbidden labels.

The Huguenins would have probably done better if they claimed that they did their best to discriminate against others who also show liberal propensities, so long as they made an effort to make it consistent and not just apply it to gays.

This case may well get to the Supreme Court, and it is my expectation that it will be upheld, if for no other reason than Justice Kennedy, who wrote Texas v. Lawrence for the majority, is still sitting. Because it is a state law, the interstate question will not even be considered. The question put will likely be a variety of - does a state have the power to require those in its jurisdiction not to discriminate against anyone because of their sexual orientation despite religious convictions otherwise?

But, the flip side of the question - even if it is the same question in practical terms - is, can the state require a private person to service someone they would rather not for religious reasons? Put this way, there are unmistakably important judicial, political and even psychological questions, for it has been put into a libertarian, rather than discriminatory, framework. Who is the state to tell us what work we perform and for what people? And, then, suddenly, you are right back with the Civil Rights Act. Not such an easy question. Given a choice, I would uphold these laws against private persons (the government is different) only with respect to ethnicity or skin color and nothing else, because of the racial questions that have not always plagued us, but also were built into our government. This would lead to some uncomfortable situations we are no longer used to. And I would not make it dependent on religious belief, but merely personal decisions.

There is another issue of religious accommodation that has made headlines recently. As part of what is commonly called Obamacare the Department of Health and Human Services issued regulations requiring businesses to provide health care insurance options that included coverage for abortions. Some Catholic organizations protested the the regulation would require them to provide insurance coverage for a medical procedure they oppose on religious grounds. And, it was not just any religious ground or medical procedure, but the sine qua non and holy grail of religious issues for about 40 years.

Again, the rule in the Smith case would seem to be against the religious groups. But, I look at the question  slightly different than most people do, and this is why I would cast them in different terms than now is common. These are questions of how free we all should be and not questions of how free those who choose to be religious should be. It is general freedom, not just religious freedom, that we should be talking about. In the case of the Huguenins, can they be required, against their will, to service someone they choose not to, regardless of their religious beliefs. For whatever the decision turns out to be with respect to the Huguenins, it should apply the same for their secular neighbor who might also be opposed to same sex marriage. With respect to Catholic hospitals, the rule should not be any different for them, because their opinion is tied to their religious affiliation, than it should be for any other business that is anti-abortion.

It's a difficult subject and I notice that when I state a positon on it I feel a little uncomfortable. Perhaps that is how we should feel. Or maybe I'm just wishy-washy.