New Mexico photographer loses gay marriage case

AP/Deseret News ^ | 8/23/2013

[Yosemitest]

Those we poison.

[IronJack]

Better yet, take their money, then “call in sick” the day of the homofest. Of course, you’ll (eventually) have to refund their money but they will have to scramble to find a last-minute replacement and for reasons entirely out of your control.

If you take lousy pictures where you would normally perform at a much higher level, they can sue for breach. But you can’t help being sick, can you?

And to prevent their bringing suit for your failure to provide a backup photographer, make it clear that you are the sole resource and that any such provision will cost them extra. MUCH extra. And be sure to include a “force majeure” clause in the contract.

[BykrBayb]

Obviously they should not be required to participate in this perversion, but here’s one route they could take, given their limited choices.

They need to advertise that they are selling pictures of the photographer’s view. He/she will photograph the event, and provide pictures that express the photographer’s perspective. All payments must be made in advance. No refunds. If they are forced by an out of control government to photograph events they are opposed to, they should put a watermark stating so across every photo. The photos should be of things like flowers, trees, inanimate non controversial subjects. No pictures of the brides, grooms or livestock. Under no circumstances should the event be referred to as a wedding. It’s a homosexual (not gay) demonstration, and should only be referred to as such. None of the photographs should contain subject matter deemed to be blasphemous mockery of holy matrimony. So no pictures of a “wedding” cake, champagne glasses set out like they do in real wedding photos, etc. If they do decide to photograph people, faces should be blocked out or blurred, to protect the innocent.

That’s how you photograph a homosexual demonstration.

[Mashood]

“Sorry... I have a previous engagement”. “Can you postpone the date... say a few weeks?” “Something has come up that day... I won’t be able to do it...sorry....”.

[BykrBayb]

I wondered why syrup of ipecac was removed from store shelves years ago. They were planning ahead!

[GeronL]

mark of the beast

[DaveyB]

Show up wearing a “God hates fags” t-shirt and take lots of flower and nature shots, but accidentally have camera malfunctions during the abomination fest.

[highball]

Choosing not to serve someone based solely on their God given skin color is repugnant. Choosing not to serve someone based on their abnormal, harmful lifestyle choice is entirely another matter

Once you gave the government, state or federal, the power to compel the first by force, you cannot complain when it then turns that power to compel the second.

We should have let the free market eliminate the repugnant behavior back then. We didn't, and now we reap the whirlwind.

[Bikkuri]

You need to send that to the wronged couple, their lawyers, and to the judge.... the the State Reps of N.M., etc..

[Bikkuri]

That is actually what I was thinking.. but not sure how that would hurt their business.

[wardaddy]

You're right, it is not comparable maybe morally but those Civil Rights acts so many GOPe and some here laud are PRECISELY why this photographer today has to do something against his religion

Those acts destroyed freedom of association.

There is a direct line from refusing service over race to refusing service over sexual orientation

seems that way to me...I pinged some who read more on that than do I

[Ohioan]

Wardaddy is right. The confusion is created when people judge legislation, not by questions which address the proper allocation of power--the basic foundation consideration as to legislation--but in accordance with their personal wish lists as to how others should behave.

The Left has systematically demonized the concept of "discrimination"--starting as always with their own wish lists, and, as always, ignoring the foundational questions. "Discrimination" used to define the perceptive individual, who would make choices based upon perceived differences. Every free choice that a free man or woman makes, is an act of discrimination. One discriminates when they buy one magazine and not another; one suit and not another; attend one church and not another; marry one girl and not another, whether the basis is looks, personality, devotion, or a combination of many factors; every act involving choice, involves a basis for that choice--the basis on which one discriminates.

The passage of the "Civil Rights" acts took the Socialist/Communist view of the power of Government, to dictate once personal choices to the people, to the furthest extent yet accomplished.

But actually, Wardaddy understates the situation. They not only outlawed racial preferences in employment or other forms of business dealings; they denied the right to exercise religious preferences as well--as well as the right to prefer rooted Americans over others. This is now taking the "principle" to a logical conclusion. Yes, it finally offends the sensibilities of those who were not offended when their own ideas of how others should manage their affairs were being forced on those others. People need to get back to the basic, foundational principles. The situational relativism will otherwise destroy us.

One other note. The Civil Rights Acts make it actually "illegal," for White employers to do what Booker T. Washington, the true champion of American Negro interests asked them to do; and that was, to first hire the race that had shared America with them for generations, before the new immigrants. His request was a legitimate one, whether or not you agree with it. Should Congress under LBJ's demands, have outlawed it? Does anyone think that maybe we need to reevaluate this whole concept?

For those interested here are some links to further discussion on the real issue:

Booker T. Washington Address.

"Civil Rights" vs. A Free Society.

"Civil Rights" are rights created by Government. They should not be confused with Civil Liberties, which are basically God given rights that the Government acknowledges.

William Flax

[OneWingedShark]

She needs to appeal to the US Supreme Court.

No!
That's a seriously bad idea: it would be [more] precedent to destroy the sovereignty of the States.

They are focused on their law, and she is focused on her Constitutional right to free exercise.

It's the NM Constitution that's being violated — thus we have to use this as grounds for removing the State Supreme Court, by the powers of the State.

Free exercise does not end with Free Worship.
A person’s religion is being exercised every minute of every day.

Take a look at post 18.

[OneWingedShark]

This will wind up in federal court where it will most likely be overturned...U.S. constitution precedes any state court. People of New Mexico need to realize what electing democrats really entails!!!

Take a look at post 18, the State Supreme Court just ignored the State's Constitution — and given how the USSC is doing business, like denying that the CA Supreme Court can certify standing and the ass-pull that was Obamacare (and Wickard, and Raich, and Schenck, and Kelo, and…) I think that's a futile gesture.

[wbill]

The state can compel service but not good service

An excellent statement, and one to keep in mind when contemplating Obamacare.

[xzins]

I thought it was the State Supreme Court that already denied them. They had that constitution in front of them, and apparently they ruled otherwise.

What do you do...ask for a do-over?

[cradle of freedom]

Has the happy gay couple put off their “wedding” just to wait for the court outcome?

Whenever I see these freakish things happening, I always wonder if any of our tax money was behind this. Just call something a “civil right” and the Democrats are sure to shower it with federal money grants. This is how they are able to form these think tanks from hell to invent new ways to torment us.

[cradle of freedom]

It makes you wonder if they went through the phone book looking for photographers in order to ask them if they would accept same sex couples or did they pick this business because they knew that they were Christian?

If they went down the phone book list asking people if they would photograph same sex couples then they would be probably passing over photographers who would be willing to photgraph them just to find a business that would refuse them their services. There needs to be some investigation here. These homos have a method to their madness.

[nathanbedford]

The first thing to understand about this case is that we are dealing with a state statute of the state of New Mexico and not a federal statute. So we are asking about the power of the state to compel a business catering to the public to deny that business the right to discriminate among its clients in this case on the basis of their clients' sexual orientation.

The second thing we ought to consider is do we have good grounds to object to this ruling if we would not also object to a ruling of the state of New Mexico which prohibits a business from discriminating among its clients on the basis of race? In other words would we also object if the state of New Mexico prohibited such a business to decline to photograph an African-American wedding?

Let's look at what the 14th amendment has to say:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Interestingly, the 14th amendment equal protection clause does not say a state may not make discriminations. In other words, states make discriminations every day based on age, sex, previous criminal convictions, academic achievements, wealth, income, marital state, and a host of other standards. Evidently, these discriminations did not run afoul of the equal protection provisions of the 14th amendment even though they clearly deny those persons so categorized (or excluded from a given category) equal protection or equal treatment under the state law.

So evidently it is only some discriminations that are prohibited by the 14th amendment. The most obvious one is race. The courts have held that the state may constitutionally discriminate among people residing within its boundaries on the basis of age and even deny them drivers licenses or the right to drink alcohol or it may favor people of advanced age with pensions and support, while it discriminates against people of more advanced age by treating them more harshly for the same crime than it treats minors. So clearly a state may discriminate among its residents for several reasons, some of which have been listed above.

A state can pass a law as far as I can tell that prohibits businesses from discriminating on the basis of race. It may not pass a law compelling businesses to discriminate on the basis of race because that state action would run afoul of the equal protection clause of the 14th amendment. As far as the wording of the 14th amendment is concerned, a state may remain silent while it witnesses a business discriminating on the basis of race. But stop!

It is clear that it is the practice both of many American states and the federal government to require states to discriminate in favor of some races. For example, we are all well aware of the controversy arising out of the efforts beginning in the Carter administration, accelerated under Clinton, and ineffectually opposed by Bush, which compelled banks to make loans to African-Americans and other minorities. In fact Clinton sent his Attorney General to threaten banks who did not make such loans. These loans were acts of favoritism because the recipients were simply not credit worthy and the rest of society, the taxpayers, mortgagors, homeowners suffered economic damage as a result of their inevitable defaults. So the practice varies wildly from the wording of the Constitution.

Likewise, both the federal government and the states remain silent in the face of discrimination by private agencies such as colleges and universities in favor of one race over other races in their admissions policies, or in the distribution of scholarships etc.

Yet, we say that there is something inherent in discriminations based on race that we will not tolerate when done by the state. I see nothing in the 14th amendment that compels the state to pass laws that prohibit private actors from discriminating on the basis of race yet all have done so and, of course, the federal government has done so.

These laws which restrict private actors from discriminating are relatively new. For example, the state of Virginia had a law on its books that required private citizens to discriminate on the basis of race and refrain from marrying African-Americans if you are white and vice versa. This law was struck down by the Supreme Court. To my knowledge, no state has yet passed a law depriving private actors of the right to discriminate as to a potential marriage partner on the basis of race. In other words a white lady is still legally entitled to decline an offer of marriage by a black man because he is black, and vice versa.

The interesting question is what legal theory would either the state courts or the federal courts invoke to justify declaring such a law unconstitutional, as they no doubt would, at least for the foreseeable future. My assumption is that the courts would not countenance a state law that deprives people of the right to discriminate in the marriage contract on the basis of race. Yet we are not allowed to discriminate in most every other contract on the basis of race and the courts have been diligent in denying us that right.

Where in the Constitution are the courts empowered to make these distinctions?

The courts have long made a distinction between people who are engaged in public commerce and those who are acting privately. In other words I have a right to discriminate on the basis of race concerning whom I choose the marry, or even whom I choose as friends but I may not legally do so when I act commercially. So it is likely that a state statute which purports to require me to be friends with homosexuals would be declared unconstitutional just as a state statute which compels me to accept offers of marriage from another man even if he is black instead of white or of any other color.

But this can get tricky. Suppose a prenuptial agreement exists by the terms of which each party guarantees that both are Caucasian to a given degree but one-party lies about his bloodline and the other party seeks an annulment or a setting aside of the provisions of their premarital agreement because of fraud. It is not clear that a court would make the lying party forfeit his or her rights under the prenuptial agreement. Why? Would not the courts say that such a prenuptial agreement is against public policy? In other words, the law will countenance people refraining from matrimony because of their racial prejudices but it will likely not give them remedy when they are defrauded on the same basis.

So where does this power in the state come from? We understand the prohibitions on state power as might be expressed in the federal Constitution and Bill of Rights or in the 14th amendment. But what about those two amendments whose names we dare not utter, the ninth and 10th amendments?

The 10th amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Well it seems clear that no power is delegated to the United States to regulate photographers of gay marriage or to have any power to do anything about commercial enterprises that discriminate against homosexuals. Therefore, the powers not delegated to the federal government must be reserved to the states or to the people. Which is it, the states or the people?

The ninth amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Without re-litigating the last 200+ years, suffice it to say that neither of these amendments provide a practical answer these questions. For all intents and purposes these amendments are dead letter in the world created by the Supreme Court, which is the world we live in.

Does that mean that the Supreme Court has felt that it may not prohibit certain state actions or require certain state actions, or put another way, prohibit discriminations by an individual, or permit discriminations by an individual?

Certainly not! One need only take a look at the line of privacy cases in which the Supreme Court has intruded on the traditional power of the states to prohibit abortions, prohibit contraception, prohibit sodomy. It is done so because it as found a right of privacy in the individual which it defines as embodying the right to abort, practice birth control, or engage in sodomy and further finds to be constitutionally superior to the power of the state to prohibit these activities. It is important to understand this line of cases have come subsequent to the civil rights cases.

When the Supreme Court declared Plessy vs. Ferguson (1898) to be unconstitutional in Brown vs. the Board of Education in 1954 , the court not only reversed its own decision but it reversed about a century of actual experience in most of America. In the next 15 years culminating with the passage of the federal civil rights laws under Lyndon Johnson, the nation underwent a revolution in how it regarded racial discrimination. It also underwent a revolution in the way it thought about the power of the state either to require citizens to discriminate on the basis of race or to prohibit citizens from discriminating on the basis of race. What had been the norm in Jim Crow now became intolerable and our view of what the Constitution permitted or required followed our change of attitude.

The parallel to the homosexual rights movement is easy to make. It has not been many years since the Stonewall riots in Greenwich Village in 1969 but there has been a huge revolution in the way homosexuality is regarded. My point is that if we are looking to the Constitution to tell us where to draw the line we are looking in the wrong place. The Supreme Court, no less than a shameless politician like Bill Clinton, looks at the lay of the land and determines how far the public is going and therefore how far the court may go. Then the court goes rummaging around in the Constitution to justify what it wants to do and what it feels they can get away with.

So, I do not see any constitutional restriction on the states power to prohibit commercial photographers from discriminating against homosexuals. On the other hand, I don't see any constitutional vested powers in the states to prohibit commercial photographers from discriminating against homosexuals unless I've been in a coma and they have re-vivified the 10th amendment while I was sleeping.

Mark Levin says that we have become unmoored from the Constitution. He is absolutely right. We are in a world of jurisprudence which might as well be written by advertising executives on Madison Avenue as by Men in Black Robes. While it is true that the court will nudge public opinion, as it no doubt did Brown vs. the Board of Education, for the most part these cases are won or lost in the lost the towers of the New York Times or in the faculty lounges of our first line universities.

These ruminations are not to be regarded as being informed by the corpus of American constitutional law cases. It is merely the excursion of a jaundiced eye seeing how these things really get settled in our society.

Finally, they are by way of illustrating Nathan Bedford's first Maxim of American politics: all politics in America is not local but ultimately racial.

[cradle of freedom]

The faggie couple would be WEARING the cake. LOL