The Business of Photography

[bob williams]

The question is pretty basic. Were their rights violated by providingdisparate treatment based on some legally identified protected class?
On the federal level, the Civil Rights Act specifies thefollowing as protected classes: race or color, religion, sex,, national origin
The Age Discrimination Act specifies age as a protectedclass and the American with Disabilities act Specifies disabilities as aprotected class
Most states have also placed these protected classes in their own anti-discrimination laws and somestates have even added additional protected classes such as sexual orientationsuch as in this case. New Mexico as withsome other states list sexual orientation as a protected class.
The funny thing with this case is that gay marriage isunlawful in NM, so they change the nameto "Commitment Ceremony" and all is legal.
So, as others havesaid, refusing to provide services based solely on one of the protected classesis unlawful.

[thekingb]

The question is pretty basic. Were their rights violated by providingdisparate treatment based on some legally identified protected class?

So, as others havesaid, refusing to provide services based solely on one of the protected classesis unlawful.

Your analysis is correct only once a business is found to be a public accommodation. While similar, public accommodation discrimination laws are not the same as employment discrimination laws. They are often found in the same umbrella law (e.g. the Americans with disabilities act includes both public accommodation and employment discrimination provisions), but the analysis is slightly different.

The case you shared with us is strictly a public accommodation case. The threshold issue is whether the photography business constitutes a public accommodation. If it does, then the next question is whether someone in a protected category suffered discrimination at the hands of the public accommodation. The court in this case found that the business was a public accommodation, which paved the way for a verdict in favor of the gay client.

Public accommodation laws (and courts' interpretations of them) have significantly expanded over the last 30 to 40 years -- as Rick appropriately reminds us, the writing on the barn does change over the years. The expansion of public accommodation laws is part of a larger trend to protect people who have traditionally suffered discrimination in this country. Despite the fact that I am a management-side employment lawyer and used to defend employment discrimination suits for large corporations, I'm very much in favor of this trend. But there must to be limits. This case, I believe, is one of those that crosses the line. They photographer's rights were violated as far as I'm concerned.

Thanks, Bob, for bringing this interesting case to the forum.

[bob williams]

Your analysis is correct only once a business is found to be a public accommodation. While similar, public accommodation discrimination laws are not the same as employment discrimination laws.The case you shared with us is strictly a public accommodation case.

King, You are correct, I was just trying to bring to light the "protected class" idea.

If anyone is looking to do some more reading on this case, I found this:
Just Shoot Me: Public Accommodation Anti-Discrimination Laws Take Aim at First Amendment Freedom of Speech

Its a nice look at this very case published in the Vanderbilt law review---Good stuff.

[ham]

Can nightclubs and bars in the US not have those signs outside saying "Management reserves the right to refuse entry"?

Because they do here in the UK. My assumption is that unless you refusing to serve that person puts them in any danger (like a taxi driver refusing a young-female fare in the middle of nowhere) that a business can refuse to serve anyone.

[Agilulfo]

I’m against superstition of any kind, all religions included. I refuse not only to work in religious ceremonies, no even to attend. But I would never support an “anti-religion” law. Laws are not the way to change social behaviours. With anti-discrimination laws you can force people to act as they were tolerant, but you can’t change his convictions.

I understand that a public accommodation, although private, implies a social responsibility. This is the reason why I would support laws in favour –for example- impaired people in those public places. Keep in mind that being impaired is not a choice, as being gay or religious.

But there must be a border between this social responsibility and personal freedom. In the case of this photographer, I think the border is crossed no matter what the law states.

[HDNitehawk]

Can nightclubs and bars in the US not have those signs outside saying "Management reserves the right to refuse entry"?

Because they do here in the UK. My assumption is that unless you refusing to serve that person puts them in any danger (like a taxi driver refusing a young-female fare in the middle of nowhere) that a business can refuse to serve anyone.

With popular nightclubs, there are no laws preventing the denial of entry and discrimination against you if you are fat and ugly. The law applies if they deny access on the basis of race, disability and in some states sexual orientation.

Again, if you're fat and ugly they don't have to let you in. Of course they will blame it on there dress code, because if you are fat and ugly you are obviously wearing fat and ugly people's clothes which are not allowed.

[Rocco]

King, You are correct, I was just trying to bring to light the "protected class" idea.

If anyone is looking to do some more reading on this case, I found this:
Just Shoot Me: Public Accommodation Anti-Discrimination Laws Take Aim at First Amendment Freedom of Speech

Its a nice look at this very case published in the Vanderbilt law review---Good stuff.

I like their angle of photography being an expressive, artistic, medium and how prosecution for her refusal to convey something about the ceremony she doesn't believe in is a denial of her first amendment rights. I see undeniable logic there, and maybe that's how the industry will be saved.

"by being told that she must use the expressive art of
photography to communicate a particular message about same-sex
commitment ceremonies—was compelled to express a viewpoint she
disagreed with, in violation of her First Amendment free speech rights."

I only really had time to get through the first page, but thanks for posting that Bob. I'm definitely going to go through all of that.

Edit: I just read the next sentence. Never mind. Bah! So, my question:

How is there a line drawn between discrimination and the first amendment? Wouldn't discrimination be encompassed in "freedom of speech"? I suppose this is where public accommodation fits into this case? I guess I really should just read the rest before posting any more opinions about the matter.

[Sheiky]

King, You are correct, I was just trying to bring to light the "protected class" idea.

If anyone is looking to do some more reading on this case, I found this:
Just Shoot Me: Public Accommodation Anti-Discrimination Laws Take Aim at First Amendment Freedom of Speech

Its a nice look at this very case published in the Vanderbilt law review---Good stuff.

Thanks Bob! I was curious to read more about this and the first few pages(and conclusion) are promising and understandable enough if you aren't familiar with all the professional terms

[thekingb]

Edit: I just read the next sentence. Never mind. Bah! So, my question:

How is there a line drawn between discrimination and the first amendment? Wouldn't discrimination be encompassed in "freedom of speech"? I suppose this is where public accommodation fits into this case? I guess I really should just read the rest before posting any more opinions about the matter.[/COLOR]

The Supreme Court of United States often finds itself trying to balance the First Amendment with discrimination issues. To an extent, individuals can "discriminate" lawfully under the First Amendment. We can think and believe what we want; but we can't always do what we want. While employers generally cannot discriminate based on protected categories like race and religion (which is relatively new), they can discriminate in other ways. For example, an employer can fire an individual because she has red hair. That would be stupid, but red hair is not a protected category. There is also a distinction between corporate speech and individual speech. Corporate speech is far less protected in the caselaw.

Since 1791 the Supreme Court has, at times, limited the freedom of speech to protect people. For example, you cannot yell fire in a crowded movie theater if there is no fire. To do so would put others at risk of bodily injury, and the Supreme Court has repeatedly held that speech is not protected when it incites violence or can be expected to physically hurt somebody. Another example: the Ku Klux Klan is allowed to hold a rally in public so long as it registers the event and does not incite violence. This is indeed a very delicate balance.