Ethical Quote Of The Month: Justice Richard Bossun of The New Mexico Supreme Court


[The quote that follows is from the concurring opinion in the just-decided case of  Elaine Photography v. Willock, which challenged the proposition, discussed and endorsed on Ethics Alarms in several posts, that a business could not and ethically should not refuse service to same-sex couples.]

“On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

“In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world.”

——- New Mexico Supreme Court Justice Bossun, concurring with opinion in Elaine Photography v. Willock, which rejected the claim that legally requiring a photography shop to take photographs of a same-sex marriage was a violation of the First Amendment.

You can read the Volokh Conspiracy take on the case here, and here; Ken White has his usual trenchant observations at Popehat.

From an ethics perspective, however, Justice Bossuns’s words need no enhancement. I could not agree more, nor say it better.


Graphic: Illinois Family


80 thoughts on “Ethical Quote Of The Month: Justice Richard Bossun of The New Mexico Supreme Court

  1. Photographers et al. need to now learn how to do what potential employers learned to do long ago, find non-discriminatory, of at least not PROVABLY discriminatory, ways of saying no. No, we didn’t not hire her because she’s a young married woman who might go out on maternity leave, we just decided, in our business judgment of course, that this other fellow’s skill set better met our needs. No, I didn’t turn them down because it was a gay wedding, I turned them down because I couldn’t devote sufficient time to do it justice, or my favored camera wasn’t working then and wouldn’t be back until the day after, or a key employee was on vacation that week, or I got a different offer for that day that I decided, in my business judgment of course, to take instead.

    • You MAY violate your conscience by your own choosing, as long as the government does not catch you (or catches you, but does not prosecute you). But you MUST violate your conscience when the government requires you to, or else, face consequences befitting a common criminal. This is “liberty” in modern post-America.

      “zackdc” may have framed it best – commenting in HuffPo:

      “I’m Gay and this ruling is bogus. Chew on this Progressives:

      “Imagine the photographer was GAY and the wedding was at the Westboro Baptist Church (or its New Mexico equivalent).

      “Now do you believe that the photographer should be compelled to photograph the wedding?

      “Think about it.”

      • That’s dealt with in the opinion, which obviously neither of you read. You can legally refuse service to a party because of political beliefs or actual conduct. That wouldn’t be religious discrimination against Baptists, but against assholes who happen to be Baptists.

        • Why not? The opinion cites a black photographer and a Klan rally, but the Klan is an explicitly political organization. The WBC aren’t simply assholes who are Baptists, they are a religious group distinct from any major Baptist branch. Sure, I think their beliefs are evil, but how does acting on their beliefs make them not a protected religious group?

          Unless you think it’s the “actual conduct” of their protests, but then that would appear to allow the photographer to turn it around with “I have no problem with you BEING homosexual but the conduct of having the ceremony is grounds to not serve you.”

          • For two individuals seeking marriage, having a ceremony is not an active conduct aimed at anyone. It’s two people trying to enjoy their lives without actively and intentionally affronting anything or anyone. The protests and slurs are actively aimed at people and therefore lose protection of being equally actively opposed in the marketplace.

            • I’m Devil’s advocating, here, but doesn’t the WBC studiously avoid aiming their taunts at any specific person? Sure, their behavior may be inflammatory, AFAIK that doesn’t negate their identity as a religious group like the Klan hypothetical in the opinion.

              • OH! ME! ME!! (stabbing hand high up into the air) I can explain for Tex:

                Paraphrasing Tex’s 9:42 am: For two jihadists seeking martyrdom, building a bomb for their suicides is not an active conduct aimed at anyone. It’s two people trying to enjoy their lives without actively and intentionally affronting anything or anyone. The protests by a seller of bomb components – specifically, the refusal to sell – are actively aimed at people and therefore lose protection from being equally actively opposed in the marketplace.

                So the NM court is saying that any seller of bomb components to the jihadists – no matter what the seller knows, is led to presume to know, or thinks of the jihadists, and regardless of what the seller can reasonably anticipate about the purchasers’ future conduct, based on the demanded purchases – is committing unlawful discrimination if the sale is refused.

                Human rights first, “holy war” next. Got it.

                • The only way to describe that comment is “willfully dumb.”

                  If you sell components of a bomb to someone you know is going to make and explode one, you are an accessory to a crime before the fact. If you refuse to sell legal bomb components to a person who is a Muslim because you assume, without knowing, that he intends to build a bomb, then you are a bigot, and illegally discriminating.

                  The fact that you compare the state of gay marriage with making bombs is affirmatively disturbing.

          • Which would be a lie, and a fact question for the jury, if it got that far. Westboro has a right to hate–when they convert that hate into socially unacceptable action, they can be shunned by private individuals and businesses, even if the action itself is protected political speech.

            As I’ve written here before, I think refusing to serve people because of their political and social views is unethical, and even doing this based on conduct is a slippery slope. If the church members have a right to live in society, they have a right to public accommodations, unless they disrupt the site or have skipped out without paying.

            • I’m lifting from the discussion of this at Popehat, but are you not at all troubled by this balancing act? Because Westboro’s legal action is considered distasteful by enough people they can be shunned or refused service. Because gay rights are becoming generally considered “good,” it is illegal to refuse service. What is the actual distinction between the two?

              Of course, the obvious answer is that political action- like a Klan rally or WBC protest- is not protected class under the law while things such as race or (increasingly) sexuality are. That, though, is only the effect of the state deciding what is OK diversity and what is not. You’re gay? That’s OK, people who don’t like you because of it are wrong and will be forced to accomidate. You’re a Klansman? That’s not OK, so anyone who wants to refuse you is welcome to.

              I don’t, in principle, disagree with the direct result of the decision. I think it’s a pretty big jerk move to refuse service, and wouldn’t shed a tear for a company that went out of business as an effect. But I have a lingering discomfort with the government deciding at will what kind of “socially unacceptable action” is OK and which kind is punishable.

              • It’s not the state. It’s the culture, and the state is responding to it, as it should. It’s an ethical call, embodied in the law. Also appropriate. Gays aren’t “Good,’ they are just like everyone else, not harming a soul by being gay.

                • And the Klan doesn’t do any harm when they march around and chant doubtlessly charming slogans, but I can’t see a suit against a photographer for refusing to work their rally go anywhere.

                  • No, it wouldn’t. That’s what the majority opinion said, specifically. Not a protected class, just protected speech. I don’t think the distinction is as hard as people are making it. The fact that photography is an artistic expression rather than an accommodation is my biggest problem with this case.

                    • Which is where my uneasiness lies- the existence of protected classes never quite sits evenly with me. I understand the logic, but it also allows government control of who is protected and required service and who is not.

                      And as for it reflecting culture, don’t you oppose the legalization of drugs or prostitution even where a majority of the people want it? I’m for less government control and regulation in general, but it seems like that if “it’s the culture, and the state is responding to it” works for why some groups are protected and others arent, it should apply to drug laws to, no?

                    • “The fact that photography is an artistic expression rather than an accommodation is my biggest problem with this case.”

                      I completely agree. I think the court made the wrong call (even though the quote you highlight is wonderful), and I hope SCOTUS overturns it on the grounds that expression cannot be compelled.

          • Well, let’s put it this way: citing a hypothetical that was explicitly handled in the majority opinion and the party briefs (The equivalent Ku Klux Klan hypo) reasonably suggested to me that you weren’t aware of it. That IS isn’t fact, a clue. Don’t get snippy.

        • You can legally refuse service to a party because of political beliefs or actual conduct.

          But the law cited by the New Mexico Supreme Court forbids discrimination on the basis of gay sexual conduct. There is no doubt that the Legislature understood sexual orientation to be behavioral, a choice of sexual partners.

          • An organization’s internal policy for compensation should fairly reflect the values of that organization (as long as no rights are violated – and no, TGT, Ampersand, or Beth, birth control is not a right). However, what an organization chooses to put on the market for consumption shouldn’t be actively denied to people you don’t like; sure you can deny services to people who’s public conduct is bad (as Jack alluded to above).

          • I don’t think it is different. And I don’t think that church-run institutions should be able to withhold services on that basis, as I wrote when the Administration announced that ruling.

        • Jack, to your 8:32 am in relation to my 8:23 am – there is nothing in the ruling related to zakdc’s hypothetical that would allow for any response on the part of the homosexual photographer to the WBC demand for the photographer’s services that would be different from the response by Elane Photography that has been deemed illegal in the case at issue. The language in the decision about the hypothetical involving the KKK and blacks is irrelevant – unless you want to make the absurd distinction that the homosexual rites of union are not political, while a wedding at WBC is (or would be) political.

          • Huh? I’m saying that refusing to photograph a WBC event has nothing to do with religious discrimination, but rather not wishing to associate with assholes. (The KKK are assholes.) You can refuse to serve assholes, E. There is no “no asshole anti-discrimination law.” If a street gang called themselves “The Saints” and prayed over their victims, you could still stifle they activities. I could still ban all-gay street gang from my store because they shoplift and are noisy. A gay marriage isn’t political, and refusing to contract with gays is exactly, EXACTLY like refusing to contract with blacks—illegal, unprotected bigotry.

            I can fire a black, a gay, or a Baptist, you know—I just can legally fire them for being those things. WBC’s treatment of mourners and veterans is speech, but it’s not religious speech. It’s asshole speech, and I don’t have to work for assholes if I don’t want to.

            • OH! So it’s freedom of ASSOCIATION that’s protected. Silly me – it must be POLITICAL football season about to start, too, what with all these goalposts and their being moved around hither and yon.

              • Seriously, did you read the Opinions? Because your commentary suggests that you either did not, or are choosing to ignore it. I see no goal posts being moved from where they were placed in 1964.

            • OK, so what happens when the next photographer who doesn’t want to work a gay wedding says “Look, I’m fine with working that kind of ceremony but those guys were assholes when they were scheduling, so I don’t want to work with them”? Is the loophole that easy? Or does the government step in and say “No, you don’t REALLY think they were assholes”?

              • The loophole being “the truth”? If I fired a black worker, he could take me to court claiming discrimination, and I have to prove that being black had nothing to do with why he was fired. I assume the same applies here, as it should. Pretense firing is unethical; pretense rejection is too.

                • Maybe things are different elsewhere, but I’m in an At-Will state. I can get fired for any or no reason as long as it doesn’t fall within a specific set of reasons (protected classes). I’m under the assumption that if I got fired and believed it was because, say, I’m Catholic, I’d have to produce some evidence of that rather than it falling on my ex-employer to prove the negative.

                  Semi-related: How does this intermesh with the sign at so many bars and restaurants that they reserve the right to refuse service to anyone at any time? I did a stint as a bouncer and I kicked some people out because they looked like trouble makers and weren’t spending enough money to get me in trouble for telling them to leave. AFAIK there is an absolute right of those establishments to refuse service on grounds like that- just like (in some states at least) employers can fire without a paper trail.

    • What companies pay for birth control for their employees? The idea that a benefit included in a prescription drug plan is paid for by the employer is wrong. Does your employer pay your mortgage? Should they be able to tell you where you can live or what kind of house you can buy? Can they tell you what movies to watch with the money you are given as compensation for work that you do for them? Of course not. The same can be said for any benefit obtained in lieu of financial compensation. They are paid for by the work done and it is that employees work that pays for the benefits (i.e. the birth control pills).

          • And I am arguing that those companies do not pay for the plans, but that the employee pays for it with work provided.

            There is no tax difference between getting paid $60K and having to pay a $10K premium out of pocket and getting paid $50K and getting a $10K policy in lieu of other compensation.

            Your work pays for the costs involved in employing you. As such, all benefits received are yours and are all paid for by your labor.

            • Right, and that $10K dollar policy is one of whatever options the company offers. Anything beyond that, that a person chooses, would have to come out of their own pocket, as an individual choice, not as the company’s choice. There is a difference, a significant one.

            • Employer-provided insurance plans are a form of compensation (employers first started offering to pay for it when wages were frozen, as a way around the pay caps)…

              There is no tax difference between getting paid $60K and having to pay a $10K premium out of pocket and getting paid $50K and getting a $10K policy in lieu of other compensation.

              That’s because you, the person, can’t claim a deduction on the 10k policy you buy yourself – the company that pays the 10K can (and they do). This is the precise reason why the self-insured pay so damn much more than someone with an identical policy they get through their employer, and why companies are (or rather, were, before the ACA started mucking about with how much plans cost a company).

              I, and many others, have long said that divorcing insurance from employment and allowing self-insurers to claim the same tax deductions a company does for insurance premiums would be a massive step towards reducing insurance costs.

  2. I’m not at all convinced by this argument. People have the right to discriminate. If it hurts their business or their relationships they can rethink it or not and pay whatever financial or social loss it brings. Some things are not fair. There’s no right to not be offended. We might not like it, but it’s a right we don’t want to give up. This is the slipperiest of slippery slopes. There’s no crowded theater here. Free speech is free speech.

    • It’s a utilitarian position, and one of the best of the breed. Allow businesses to refuse to serve the community, and you have no community. You can hate whomever you want, but the law that says you can’t act on that hate by refusing to fill his gas tank, sell him medicine, or let him eat is non-negotiable in a nation with the ideals and values of the US.

      This is one of the many areas where libertarians can’t justify where their ideology goes, because it just won’t work.

      • Jack,

        When you inevitably drum out Kants Universal rule, could you explain that rule a little better. I understand your jist of “take any action and universalize it, if EVERYONE did that action, would society be better or worse?”. I understand what this is getting at, but there has to be some test prior to that question that decides if a particular action needs to go through that test, because otherwise, you could run every single action through the test and determine that it is unethical. IF everyone chose to make their career being ethicists, then society would have no farmers, or doctors, or teachers…. therefore being an ethicist is unethical….

        So there has to be something that decides when an action needs to be considered with Kant’s rule versus actions that are ethical or unethical without needing that rule….

        I’m asking for some education here.

        • The Rule of Universality is properly focused only on actions that act upon another person or thing. Like the Golden Rule, it isn’t applicable in all cases—the Rule of Universality is not in fact universal. Absolutism is way too restrictive, but it’s a useful tool, as, for example, in my mother’s purloining of a small part (about a four inch piece of marble) of the Parthenon.

  3. Done with this liberty-shredding tripe, too. Oh, I reacted to the decision, all right. I wrote down my reaction, in four words (or seven, depending on how you count): three two-word, hyphenated modifiers (two of which are “double-thinking” and “double-speaking”), plus one I used in this blog recently (withholding now), plus one noun. I’ll withhold the noun also, but it’s related to malodorous excrement of a specific gender of a specific species, often excreted in rodeo arenas.

  4. But you can learn to “say no without saying no.” If the gas pump is broken, or you’re out of the medicine the person is looking for, or all your tables are reserved, well, that’s not a political issue and it doesn’t impact a protected class.

      • Think of it as liberty guerilla tactics. If every time the people you don’t want come into your restaurant get told the tables are reserved, or the people you don’t want to serve get told the necessary equipment or people aren’t available and won’t be until after the time asked for, eventually they’ll get the message and stop trying to press you. And there won’t be a damn thing they’ll be able to prove.

  5. ” To allow discrimination based
    on conduct
    so closely correlated with sexual orientation…”

    Conduct is a choice.

    This means that the New Mexico Supreme Court just declared sexual orientation to be a choice.

    • I’m not sure about that.

      I think the NM Supreme Court said by analogy: A person’s conduct of buying vanilla ice cream is so closely correlated with their orientation towards vanilla flavors.

      They like vanilla because that is simply who they are (orientation). They buy vanilla ice cream because of that (but they don’t have to – choice).

      They didn’t declare the orientation to be a choice. Sure, orientations may affect choice, hence correlation. They don’t cause it however, not with any automation.

      • “Sure, orientations may affect choice, hence correlation. They don’t cause it however, not with any automation.”

        ??? Correct if necessary: Orientation is the basis for irresistible impulse, which not only affects, but compels, choice of conduct. Therefore, orientations do cause conduct “with automation.”

        • So-WHAT? What possible business is of yours what “orientations” anyone has, that would justify you making their road to happiness and fulfillment harder, or even impossible? If you want to argue that businesses can refuse to serve blacks and Jews, fine—that’s vicious and wrong-headed (though Rand Paul endorses the principle) but at least its consistent. How do you justify treating same sex couples any differently? Because of what you just know they are doing behind closed doors? It is and remains an untenable position, and I would have thought you would have abandoned it by now.

          • We “just know” what a male-female couple, who indicates they are getting married, are going to do (or not do) behind closed doors, don’t we? We “just know” what a person of a certain religion thinks (or does not think) about certain declared behavioral classes of people, don’t we?

        • I disagree about irresistible impulses. The two are separate. Even Christian theology has this concept when we discuss our sin-nature, yet our sins are still acts of free will.

  6. The answer is quite simple, really, Each town should have a gay photography studio and a straight one. We should keep them apart from each other, but they both have to offer the same exact services and expertise! A win win! #beentheredonethat

  7. As far as restaurants, The Civil Rights Act of 1964 explicitly prohibits restaurants from refusing service to patrons on the basis of race, color, religion, or natural origin. A photographer would also be open to a lawsuit if they refused to take a picture of a black couple or Hispanic couple if they refused to take their picture. That being said, I think it gets murkier if a photographer refuses to take a picture of a gay couple planning to get married. I’d do it because it’s not my business what federal and state law decides about gay marriage. I’m not marrying the couple anyway and I can use the money 😉

  8. The NMHRA prohibits religious discrimination. The Court’s interpretation would mean that a wedding photographer can not, for example, specialize in Orthodox Jewish weddings, as it would discriminate against Reform Jews, nevermind Christians, Muslims, and atheists.

    (The court’s ruling may not fit perfectly with respect to wedding planners.)

    • I’m not sure that’s entirely accurate either. I don’t think specific products are discriminatory. If a shop owned by a Buddhist, specialized in selling, only Buddha statues, that isn’t discriminatory against Christians or Jews for not selling crosses or stars of David. It would be discriminatory for a Christian who walks in to buy a Buddha statue be refused service on grounds of being a Christian.

      On the flip-side, the nature of the product requires a certain amount of reasonable ability to explain its exclusive nature. Someone specializing in “Orthodox Jewish” wedding photography would probably need to reasonably demonstrate how photographing that sort of thing actually is a specialized service.

      Take Halal food for example. It is a specialized product intended for a Muslim market. It would be discriminatory however for a seller of Halal food to refuse to sell to a Jew simply because they are a Jew, but a store that clearly only sells Halal food is not being discriminatory in and of itself.

  9. I don’t think any Buddhist temple shop would refuse to sell a Christian a statue of Buddha. Anymore that a Catholic Church store would refuse to sell an Episcopalian a stature of the Blessed Virgin. Beside whether Buddha planned to establish a religion is debatable.

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