Advertising Dissolves Freedom of Choice in NM

Last week a female photographer made a choice to not photograph an event, only to have the New Mexico courts state that she discriminated against the lesbian couple by turning down the photographing of their commitment ceremony. The photographer thought being a U.S. citizen gave her the freedom and the choice to decide who she would take on as a client and who she would not take on.

The court held that “a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients” is bound by the New Mexico Human Rights Act “and must serve same-sex couples on the same basis that it serves opposite-sex couples.”

In other words, because the photographer used her freedom of speech to promote her business, she has lost her right to choose who she would take on as a client and who she would not take on.

I’m curious to know what happened to the photographer’s freedom to choose the type of work she wanted to do. I’m also curious as to what power enabled the New Mexico courts to determine which of the two people got to maintain their “freedom” – The right to choose what projects we work on versus the right to choose any photographer a person wants.

When I was growing up, discrimination laws allowed both parties to maintain a certain level of rights, but not control all of the rights. For instance, the person hiring a photographer had the right to hire a photographer, but not necessarily a specific one if others were available. And, the photographer had the right to take the weddings they wanted, like the more profitable ones or the ones that paid their bills on time.

Even the Boy Scouts faced the issue when a girl wanted to join. However, the court allowed the Boy Scouts to turn the girl away if there was a Girl Scout club available, as it was similar in nature. The unique thing is that fighting to give a girl the right to join the Boy Scouts does not give her the opportunity to be a part of a boys club. For once she joins, the club is no longer a club for boys, as her presence nullifies it.

I was raised in a small town that had signs in it’s store windows stating that the proprietor of the establishments had the right to refuse services to anyone not wearing a shirt or shoes. It would be interesting to find out if a proprietor would have to now serve a gay person that entered the establishment without shoes.

Theoretically they would not have to serve a person without shoes because they only serve the niche market of people who wear shoes. The New Mexico court stated they “must serve same-sex couples on the same basis that it serves opposite-sex couples.” In other words, all are served who wear shoes, which means no one is discriminated against.

However, in the case of the female photographer who also serves a niche market, the court decided her niche market didn’t count. In fact they refused to hear it.

The female photographer only photographs a niche market of clients who hold to a certain religious belief. The lesbians did not hold to that belief and therefore were not considered clients. With the lesbian couple not being a part of the niche market, it made me wonder if the lawsuit was for political reasons. After all, why would a person who lives outside of a niche, demand that a niche photographer take their pictures?

I did wedding photography to help put myself through college. I had the freedom to pick what dates I would be available to shoot and I had the freedom to choose what weddings I wanted to shoot. Frankly, I learned to avoid the ones where the bride or groom kept dickering about the price, and the ones with an open bar – You would not believe the things I captured when people got drunk and how many of my pictures became evidence in court.

According to the New Mexico court, if a lesbian who planned an open bar and constantly dickered on my price wanted to hire me, I’d have to take the job if I had used my freedom of speech to promote my business. This interpretation of the law is dangerous and flies in the face of our country’s freedom of choice stance when it comes to selecting the projects we want to work on.

But now, the New Mexico ruling leads us down a slippery slope that destroys our freedom of speech. According to them if you advertise, which all businesses do, you become a slave to the one wanting to hire you – Leaving you powerless to choose what jobs and projects you take or reject.

It’s my hope that the appeals court will overturn this interpretation of the law and make sure our freedom of speech stays intact, especially since it’s at the bedrock of our freedom to choose.

© 2013 by CJ Powers

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