Supreme Court turns deaf ear on New Mexico gay wedding photo case
“What’s being challenged,” Wolfson said, “is the logic of civil rights and nondiscrimination laws. When you open a business and hold yourself out as open to the public, everyone has the ability to go into that business and be served without discrimination. This is very different from what we are free to believe. When you open a business to the public you serve the public.”
Rauch disputes Wolfson’s linking of the New Mexico dispute to the 1964 Civil Rights Act. “There is a social re-negotiation happening in a healthy way,” Rauch said, “but politically we are nowhere near the kind of consensus that had emerged by the 1960s on racism.
“It is still possible to say that women have a different role and should say home with young children,” Rauch said, “and there are still clubs for men and clubs for women. There are no bombs going off, no kids not going to school.
“Race is different from everything else in America,” Rauch said, “and when you compare anything else to race, you are making an analytical mistake.”
But equation of race and sexual orientation does not surprise Whelan.
“They routinely equate support for the position on gay marriage that Barack Obama claimed just two years ago with supporting bans on interracial marriage," Whelan said. "Their aim is to stamp out any dissenting views on what marriage is."
Reversing the photography case makes an interesting thought experiment, Whelan suggests.
“Wouldn’t we respect the rights of a gay photographer to refuse to provide services to a couple getting married in a church that refuses to allow gay marriage?” he asked.
In either case, Whelan asks, why would the couple want to be photographed by someone who did not want to be involved? And as Nimocks points out, the record shows that the couple quickly found a photographer willing to shoot the event at a lower price than Huguenin.
But it wasn’t really about finding a photographer, Rauch argues. “It was about the sting of being told to get out of the shop." (The exchange between the photographer and the customer occurred via email, in this case, so Rauch's comment is metaphorical.)
Whelan’s political balancing, if he had his way, might involve rethinking how we collectively view such stings, and with it the whole structure of antidiscrimination policy.
Whelan agrees with Rauch that racial discrimination holds a distinctive place in the American political psyche but he argues that other types of discrimination might be better left to market forces. Reaching accommodation in a diverse society might, he said, require even relaxing protections against religious discrimination, for example.
“Many of us think that being discriminated against on religious basis is ugly,” Whelan argued. “If you are an employer who dislikes Catholics or Mormons, that’s ugly behavior on your part. But we believe the market will provide a corrective by valuing the very people whom you devalue.”
“The Supreme Court’s denial of certiorari here allows the debate to go on,” Rauch said. “I have no significant doubt about the outcome. In a few years there will be very few places that will discriminate against gays.”
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