Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

April 10, 2008

Right To Contract vs. “Human Rights”

by Doug Mataconis

Eugene Volokh writes about a case in New Mexico that demonstrates the extent to which the right to decide who you do business with has been eroded in the name of so-called anti-discrimination laws:

Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane’s work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock’s same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney’s fees and costs.

I haven’t seen any written statement of reasons, but the order must implicitly rest on two interpretations of state law: (1) This sort of photography company constitutes a “public accommodation,” defined by state law “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.” (2) A refusal to photograph a same-sex commitment ceremony constitutes sexual orientation discrimination, which New Mexico law forbids. These may or may not be sensible interpretations of the statutory text. But the result seems to me to likely violate the First Amendment (though there’s no precedent precisely on point).

As Volokh points out, photography is an art form and the Human Rights Commission decision effectively says that the state can tell you what kind of art you can and cannot create. He goes on to point out, correctly I think, that several U.S. Supreme Court opinions make it clear that the state cannot compel you to endorse points of view that you disagee with and, arguably, by photographing a committment ceremony she finds personally offensive, this photographer would be endorsing something she does not choose to endorse.

More than that, though, this case points out the extent to which so-called “economic” rights, such as the right to decide who you do business with, have been eroded over the past 50 years. There is no reason that Ms. Huguenin should be forced to take on a job she doesn’t want to take. What if, instead of citing the same-sex nature of the ceremony, she has simply said she was too busy to take on the project ? Presumably, that would have been a legitimate reason to turn it down, and if that’s the case, then I see no reason why she should be forced to work for these people just because she doesn’t approve of their lifestyle.

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  • C. Douglas

    Whatever happened to “we reserve the right to refuse service to anyone”, or “no shirt, no shoes, no service”. This is ridiculous. The anti-discrimination laws are based upon “public accomodation” not on location services.

    This case should have been dismissed and the couple ordered to pay the photographer’s legal expenses.

    Cases like these are beyond frivolous, and in fact do more damage to the “live and let live” cause of the gay community than help. This ruling comes perilously close to the advocacy of State Sponsored Religion.

    It will most likely be overturned if it ever gets to a real court versus a regulatory agency packed by Governor Richardson.

    I suppose what it really means is the creation of an underground discriminatory economy where the words “Too Busy” become part of every salesman or business owners vocabulary.

  • http://www.thelibertypapers.org/author/tarran/ tarran

    Note to self. Never tell anyone you won’t do business with them because you don’t like them. Always say you are too busy, or quote a really high price.

  • http://www.conservativeintelligencer.com J. Wesley

    What gets lost in the current discussion of “rights” is that every “new” right that is invented for someone correspondingly takes away an existing right from someone else. My right to rent control takes away your right to profit from your property. My right to a gay photo shoot robs you of your right to conscience. Etc.

    Conservatives used to do a much better job of speaking up for these lost rights. The Left is dominating the narrative these days with their new “rights”, and those of us losing our rights seem to be voiceless.

  • http://www.belowthebeltway.com Doug Mataconis

    tarran

    You have a point, but it’s unfortunate that the only way to get around an injustice like this is to lie.

    That’s what statism does to people.

  • http://publiusendures.blogspot.com Mark

    J. Wesley: Except that the Right is now just as bad at creating new rights (that aren’t really) as the Left. In fact, they’re often worse. The only rights the Left creates that aren’t rights come their twisted conception of economic liberty. Meanwhile, the Right has decided that the word “liberty” means “freedom, except as limited by our interpretation of the Bible” rather than just simply “freedom from control.”

  • Mike M.

    Whoever is saying to just lie is wrong, that is EXACTLY what the elitist left wants everyone to do! They live and breath lies and POWER. They will delight in knowing they are forcing honest people to be like them – liars. Homosexuality is simply a behavior sex dysfunction just like impotence is a physical sex dysfunction. Gender only exists for one reason only – procreation. Therefore, whatever physical OR behavioral affliction prevents procreation is a dysfunction. Homosexuality occurs throughout nature – so does cancer. I’m not bashing what gays do, (I pity them, they will never experience the attraction to the opposite sex), but I do bash who some of them ~think~ they are.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Mike M.,

    I’m not bashing what gays do, (I pity them, they will never experience the attraction to the opposite sex)

    Actually, you are bashing them.

    Homosexuality is simply a behavior sex dysfunction just like impotence is a physical sex dysfunction. Gender only exists for one reason only – procreation.

    So I’m taking from this that you’re saying anyone who engages in sex for recreational or non-reproductive purposes (hetero or not) is likewise sexually dysfunctional?

  • http://poppychop.net/ Nitroadict

    Mike, you are aware that various populations of animals have been scientifically proven to be not only gay, but also bi-sexual & asexual as well?

    You’re attempts at sounding moderate in your backwards view, in a sad effort to give yourself credence, is what should be really pitied here.

    But, hey, as long as we have the right have such idiotic views, and my right (as well as others) to object to such, I suppose we should enjoy the ride while it lasts.

  • http://www.thelibertypapers.org/author/stephen/ Stephen Littau

    U.C.

    “So I’m taking from this that you’re saying anyone who engages in sex for recreational or non-reproductive purposes (hetero or not) is likewise sexually dysfunctional?”

    I’ve ran across certain Catholic blogs where the authors believe such crazy shit. This one blogger believes that the only “appropriate” sex is coitus and the only appropriate family planning is natural family planning (NFP). You have to read this shit. It’s truly insane.

  • oilnwater

    so basically what you’re doing right here is engaging in one of the last unassailable discriminations: religious. otherwise, it’s socially unacceptable and condemnable to engage in any other form of discrimination as dictated by unspoken social mores.

    people are so gay.

  • UCrawford

    Stephen,

    I’ve ran across certain Catholic blogs where the authors believe such crazy shit. This one blogger believes that the only “appropriate” sex is coitus and the only appropriate family planning is natural family planning (NFP). You have to read this shit. It’s truly insane.

    Oh, I grew up in a very religious area so I’ve heard stuff that’s just as bad if not worse.

    oilnwater,

    so basically what you’re doing right here is engaging in one of the last unassailable discriminations: religious.

    Eh…as long as we’re not demanding that the government draft up a law to forcibly stamp out their beliefs I think we’re still okay :)

  • MikeF

    Eh…as long as we’re not demanding that the government draft up a law to forcibly stamp out their beliefs I think we’re still okay :)

    Isn’t that kind of what they are doing right now in Texas with the polygamists? I don’t agree with the cult’s actions against the young girls of course forcing them to marry old men, but what valid reason is there for the govt to stop people of legal age from engaging in a polygamist relationship?

  • http://publiusendures.blogspot.com Mark

    …Uhh, there would be none. Except for the fact that many of the “wives” didn’t exactly have much of a choice in the matter (you might want to look into the fact that some of these girls were as young as 13).
    But as far as I’m concerned, if a woman willingly desires to marry a man who is already married to another woman, and that other woman also willingly goes along with the arrangement, well that’s their business. When one of the women is 13 and is sexually assaulted in the process, then I have a problem.

  • MikeF

    Well, Mark, if you had actually read all of my post instead of just the last line you would so that I did not agree with the actions of the cult taken against the young girls as well.

  • MikeF

    “would see” not “would so”….posting too late is not a good idea….sorry.

  • UCrawford

    Mike,

    Isn’t that kind of what they are doing right now in Texas with the polygamists? I don’t agree with the cult’s actions against the young girls of course forcing them to marry old men, but what valid reason is there for the govt to stop people of legal age from engaging in a polygamist relationship?

    Aside from the underage girls aspect (which I’m also opposed to), I don’t have a problem with polygamists and think it’s wrong for the government to intervene or forbid what they do. Then again I think that a lot of the government’s involvement in marriage is wrong. Marriage is a contract, just like any other…beyond arbitrating or enforcing the terms of it through the courts when one or both parties wish to separate, I think that government ought to stay out. If one guy finds three or four women willing to marry him all at once, more power to him. What business is that of mine or anyone else, really? Same would apply to one woman and multiple men, of course…or whatever mix of gender you’d care to name :)

    Actually, I’ve long wondered if the state’s involvement doesn’t tend to push people into marriages too quickly (by creating incentives to do so) and make divorces more bitter and hostile than they need to be (by making it a more difficult and drawn out process).

  • MikeF

    Mark, it sounds like we are in agreement about this topic. I think you are exactly correct about the state pushing people into marriage, and making it much too difficult to divorce, with the associated problems of each.

  • http://publiusendures.blogspot.com Mark

    MikeF: I’m sorry for being harsh. I was in a belligerent mood yesterday, and actually got you confused with Mike M, who really pissed me off. I apologize thoroughly.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    MikeF,

    Actually, that was me…not Mark. :)

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