In a recent post, I argued that a photographer who refuses to shoot a same-sex wedding isn't necessarily demonstrating homophobia, bigotry, or anti-gay hatred. Another post of mine cited an amicus brief by Eugene Volokh arguing that "photographers, artists, singers, writers, and other creators of expression have a First Amendment right to choose which expression they want to create," and that protecting free expression "would not block the enforcement of anti-discrimination law when it comes to discriminatory denials of service by caterers, hotels that rent out space for weddings, limousine service operators, and the like." On Twitter, I've also recommended Julian Sanchez's analysis on this subject.
My failure to reflexively insist that anti-discrimination laws, some of which I support, invariably trump all other societal interests, and my insistence that there are both similarities and huge differences between what blacks faced circa 1960 and what gays and lesbians face today, have caused some readers to draw an inaccurate conclusion: that I believe it's basically unobjectionable for a photographer (say), when motivated by sincere religious belief, to boycott same-sex weddings.
Actually, I very much object! Such a photographer has, I think, reached wrongheaded conclusions. I just don't think vilification or fines are justified. Such remedies may be needed, in a given instance, to address anti-gay discrimination. If gays in America were being turned away from restaurants or hotel rooms as a class, if a private ambulance company refused to answer emergency calls from a gay-wedding venue, or if a local government agency were discriminating against gays and lesbians in hiring, I'd happily endorse a coerced legal remedy.
The burden imposed on gays in the case we're discussing—very occasionally having to choose a different wedding vendor for a subset of nuptial services provided by professionals engaged in expressive activity covered by the First Amendment—is thankfully tiny in comparison to historic uses of nondiscrimination law.
Again, that isn't to say I think it's right to discriminate against gay weddings in this way. I think it's wrong, and that the best remedy in these sorts of cases is persuasion. Remember that wonderful liberal tool?
There can be no denying that persuasion has radically changed the attitudes of Americans toward gays and lesbians in recent years. So many grandparents and parents I know have been persuaded by their children to let go of long held prejudices and stereotypes. Everyone heartened by the spread of gay marriage, as I am, or encouraged by the backlash against anti-gay bullying, which ought to grow stronger still, can take heart in the fact that every trend is moving in the right direction.
Yet there is widespread dismissal of persuasion as a serious remedy—and a similarly confounding certainty that fining photographers will prove more effective, even though non-discrimination law has arguably done far less for gay equality.
Well, let's try persuasion, if only in this space.
I'd very much like to persuade the tiny subset of Christian professionals who feel conscience-bound to decline business from same-sex marriages to reconsider their position. For familiarity's sake, I'll stick with the example of a photographer, a creative professional that represents the most difficult case for my view.
Unlike a hotel owner or a convenience-store manager, a wedding photographer is often a sole proprietor who works closely with clients on an interpersonal level. One way of understanding the role is a charge to make the wedding itself look good, using some combination of personal artistic vision and technical training.