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Op-Ed: Bigotry Has No Place in Commerce—Or Art - UPDATED

A law that prohibits discrimination against gays does nothing to protect sex workers

Op-Ed: Bigotry Has No Place in Commerce—Or Art - UPDATED

JESUSLAND—As most AVN readers are undoubtedly aware, there have been several instances over the past few years where teachers, social workers and others similarly employed have been fired from their jobs when it was revealed that they once posed for nude photos or, worse, appeared in one or more sexually explicit adult movies (aka porn).

The firings had nothing to do with how good the people were at their jobs, nor even how they now conduct themselves in public and in the workplace; rather, they were fired because their bosses feared the notoriety that came (or likely would come) with the revelation of the person's prior sex work, and the imagined disruption that knowledge would cause on the job site. Walter Jenkins would have understood very well.

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In other words, the people were fired because their bosses were prejudiced against anyone who was revealed publicly to be, in some manner, a sexual human being.

But looking askance at those who have worked in porn is hardly the only sexual prejudice held by far too many mainstreamers; there's also the fact that many people are gay and aren't afraid to let that fact be known (aka "come out of the closet")—and a recent court case out of New Mexico shows just how insidious that prejudice can be—and to what lengths bigots will go to defend their bigotry.

It all started simply enough. Elaine Huguenin and her husband Jonathan run a photography studio in Albuquerque, Elane Photography (the missing "i" in Elane has never been explained), and one of the services they offer is that they will come out and photograph social events: everything from bar mitzvahs to award ceremonies to weddings to whatever.

Almost.

In 2006, Vanessa Willock emailed Elane Photography to ask them to photograph, not a wedding, but Vanessa's commitment ceremony to her partner, Misti Collinsworth, since New Mexico at that time did not allow gay people to marry.

The Huguenins responded to Willock that they only photographed "traditional weddings," and when Willock wrote back to ask, “Are you saying that your company does not offer your photography services to same-sex couples?” Huguenin responded, “Yes, you are correct in saying we do not photograph same-sex weddings,” and thanked Willock for her interest.

What the Huguenins didn't know was that Willock was one of those people who actually believed that in the United States, all people are equal before the law—a fact recognized by New Mexico's Human Rights Act (NMHRA), which in 2003 was amended to add "sexual orientation" to the classes of persons protected from discriminatory treatment.

Anyway, just to be sure, Collinsworth, whose name was then unknown to the Huguenins, sent her own email to Elane to ask whether they would be available to photograph "a wedding," without specifying just what type of wedding it would be. According to the New Mexico Supreme Court's opinion, Huguenin promptly sent Collinsworth a list of pricing information and an invitation to meet with her and discuss her services, and a few weeks later, e-mailed Collinsworth again to follow up.

But what Willock and Collinsworth didn't know was that the Huguenins considered themselves to be "Bible-believing Christians," and as everyone who's read that book knows, the Book of Leviticus advises, in Chapter 20:13, that "If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death."

But the Huguenins didn't get nearly that dark in pleading their case in court. According to them, the couple had nothing against gays personally; it's just that, according to the New Mexico Supreme Court's opinion, they "did not want to convey through [Huguenin]’s pictures the story of an event celebrating an understanding of marriage that conflicts with [the owners'] beliefs."

"Elane Photography argues that it would have taken portrait photographs and performed other services for same-sex customers, so long as they did not request photographs that involved or endorsed same-sex weddings," the opinion, by Justice Edward L. Chavez, states. "However, Elane Photograph’s owners testified that they would also have refused to take photos of same-sex couples in other contexts, including photos of a couple holding hands or showing affection for each other."

But wait; it gets better (not in the Dan Savage sense of the phrase, though...)

"Elane Photography also argues in its brief that it would have turned away heterosexual customers if the customers asked for photographs in a context that endorsed same-sex marriage," the opinion continues. "For example, Elane Photography states that it 'would have declined the request even if the ceremony was part of a movie and the actors playing the same-sex couple were heterosexual.' Therefore, Elane Photography reasons that it did not discriminate 'because of ... sexual orientation'."

See? They're not bigots, 'cause they'd even discriminate against heterosexuals if they were doin' gay stuff!

In any case, Willock and Collinsworth found another photographer willing to record the ceremony—but not willing to be cast as second-class citizens in their own state, the pair filed suit against Elane under the Human Rights Act—and won! Not only that: The Huguenins were required to reimburse Willock and Collinsworth $6,637.94 for court costs and the couple's legal expenses.

"Elane Photography’s argument is an attempt to distinguish between an individual’s status of being homosexual and his or her conduct in openly committing to a person of the same sex," the high court unanimously ruled. "It was apparently Willock’s e-mail request to have Elane Photography photograph Willock’s commitment ceremony to another woman that signaled Willock’s sexual orientation to Elane Photography, regardless of whether that assessment was real or merely perceived... In this case, we see no basis for distinguishing between discrimination based on sexual orientation and discrimination based on someone’s conduct of publicly committing to a person of the same sex.

"We are not persuaded by Elane Photography’s argument that it does not violate the NMHRA because it will photograph a gay person (for example, in single-person portraits) so long as the photographs do not reflect the client’s sexual preferences," the opinion later continues. "The NMHRA prohibits public accommodations from making any distinction in the services they offer to customers on the basis of protected classifications. For example, if a restaurant offers a full menu to male customers, it may not refuse to serve entrees to women, even if it will serve them appetizers. The NMHRA does not permit businesses to offer a 'limited menu' of goods or services to customers on the basis of a status that fits within one of the protected categories. Therefore, Elane Photography’s willingness to offer some services to Willock does not cure its refusal to provide other services that it offered to the general public." [Citations removed here and below]

Cue the outrage!

"The idea that free people can be 'compelled by law to compromise the very religious beliefs that inspire their lives' as the 'price of citizenship' is a chilling and unprecedented attack on freedom," said (right-wing) Alliance Defending Freedom's Senior Counsel Jordan Lorence, who's defending the Huguenins. "If Elane Photography does not have [its] rights of conscience protected, then basically nobody does. What you have here is the government punishing someone who says, 'I, in good conscience, cannot communicate the messages of this wedding.'"

Ken Klukowski of the religio-conservative Family Research Council termed the decision "profoundly disturbing" and hoped that the decision would draw attention to "the serious threat to religious liberty posed by overbearing government agencies when it comes to redefining marriage. Rather than live-and-let-live, this is forcing religious Americans to violate the basic teachings of their faith, or lose their jobs."

Of course, that's crap. As much as the Huguenins have argued that photographing a wedding or similar event requires them to "use [their] artistic and expressive skills to communicate what was said and what occurred at the ceremony," in fact, as the high court noted, "Elane Photography does not routinely publish for or display its wedding photographs to the public. Instead, it creates an album for each customer and posts the photographs on a password-protected website for the customers and their friends and family to view. Whatever message Elane Photography’s photographs may express, they express that message only to the clients and their loved ones, not to the public"—and definitely not plastered over the front page of the Albuquerque Tribune as a message to all gays that, "Ha-ha; we made some bigoted photographers abandon their 'deeply held beliefs.'"

And though there's a long discussion on the subject in its opinion, the New Mexico Supreme Court has a simple answer for the religious argument: "The fact that compliance with the NMHRA will require Elane Photography to produce photographs for same-sex weddings to the extent that it would provide those services to a heterosexual couple does not mean that the NMHRA compels speech in the manner of the laws challenged in Wooley [v. Maynard] and [West Virginia State Board of Education v.] Barnette... the NMHRA does not require any affirmation of belief by regulated public accommodations; instead, it requires businesses that offer services to the public at large to provide those services without regard for race, sex, sexual orientation, or other protected classifications. The fact that these services may involve speech or other expressive services does not render the NMHRA unconstitutional."

But Lorence and Klukowski represent the less-psychotic edge of the insanely-religious fringe.

"The points raised by these judges defy all common sense," claimed Bobby Eberle of GOPUSA.com. "There is no constitutional right to photography. There certainly is a constitutional right to practice one's religion. How could these judges make such an error?"

Um... Bobby? The "constitutional right" at issue is the one that bans discrimination on the basis of sexual orientation, a less explicit version of which can be found in the Fourteenth Amendment: "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."

But wait; there's more!

"Anyone who still doubts that the normalization of homosexuality and the legalization of same-sex marriage will represent a seismic shift in the culture at large needs only to look to New Mexico to see that nothing less than religious liberty is now under threat—and in a big way," stated R. Albert Mohler Jr., president of the Southern Baptist Theological Seminary.

Yeah! Because if Elane Photography is required not to discriminate regarding who it'll sell its services to, that might lead to a nationwide realization that one particular sect's (Christian, but it could just as easily be Jewish or Muslim) religious beliefs are not the law of the land; the U.S. Constitution is!

And since we can't have that, the Alliance Defending Freedom is appealing the New Mexico Supreme Court's decision to the U.S. Supreme Court.

But the question becomes, why would members of the adult entertainment industry give a rat's ass about this? And the answer is simple: You're not a "protected class" under any anti-discrimination laws. If some school board or other government agency, whether local, state or federal, finds out that you've acted in a XXX-rated movie, it doesn't matter that it's been several years since you did so, that you don't do it any more, that you've become a tax-paying member of the community with a husband (or wife), kids and a two-car garage, and that your conduct in the workplace has been exemplary; they can fire you on "moral grounds" without your being able to do anything about that blatant discrimination. Sure, you can sue, but the anti-discrimination laws won't protect you even though you engaged in a legal profession and broke no laws while engaging in it.

So congratulations, porn stars and, more importantly, former porn stars: You're at the bottom of the list when it comes to legal protections regarding where you work, where you live, where you go to college and any other facets of life where Those In Charge might look down on your present or former career.

But then, you knew that already, didn't you?

The New Mexico Supreme Court's decision in Elane Photography v. Willock can be found here.

UPDATE: As part of its Orders List today, the U.S. Supreme Court has denied certiorari to Elane Photography, which means that henceforth, if approached by same-sex couples wishing to have their commitment ceremonies photographed, it will be illegal for the Huguenins to refuse to do so. However, since the original decision against the Huguenins was issued by the New Mexico Supreme Court, their ruling only applies in the state of New Mexico, though other jurisdictions may cite it in cases that come before them.

Needless to say, a couple of people are upset about the cert denial.

"By refusing to take up the appeal of law-abiding citizens seeking to exercise religious liberty under the Constitution, the U.S. Supreme Court has shown itself in this case to be an utterly unqualified defender of that Constitution," said Tim Wildmon, president of the American Family Association. "The Court would never dream of forcing an Imam to perform a Christian wedding ceremony, or of forcing a Buddhist to participate in a Muslim ceremony. Yet when a same-sex couple cries foul because Christians opt not to participate in their ceremony, the legal system bends over backwards to pacify the same-sex couple. Our God-given right to liberty, so eloquently enshrined in our Constitution, must not be trumped by political correctness. Sadly, the Court today chose promoting the homosexual agenda over upholding the First Amendment."

So obviously Wildmon thinks same-sex marriage is a form of religion?

"Americans oppose unjust laws that strong-arm citizens to express ideas against their will," opined David Cortman, one of the Huguenins' attorneys. "In fact, Elaine and numerous others like her around the country have been more than willing to serve any and all customers, but what they are not willing to do is to promote any and all messages. A government that forces any American to create a message contrary to her own convictions is a government that every American should fear."

So: taking a photograph you've been hired to take is the same as being forced to "promote [a] message"? Yeah, how horrible it would be if the Huguenins were forced to take a photo of two women smiling and maybe kissing each other, possibly wearing a wedding gown and a tuxedo! Sure doesn't sound like they are "willing to serve any and all customers..."

Pictured: Elaine and Jonathan Huguenin.






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Mark Kernes

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