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.
An orthodox Christian photographer with a traditionalist, procreative understanding of marriage might feel that, by using her artistic talent on a same-sex wedding, she would be glorifying something she believes to be sinful; alternatively, such a photographer might feel that there is a falseness to using her artistry to portray as a marriage ceremony something she believes is nothing of the sort.
But there is a different way of looking at things, and I invite religious photographers to consider it, because I believe it is analytically sound and more Christian.
In this view, a wedding photographer's charge is to capture the reality of an event as the couple is experiencing it. Doing so to the satisfaction of the client doesn't require believing that an actual marriage is taking place, any more than photographing a First Communion requires the photographer to believe that the child is actually consuming the body of Christ. It is enough, at the communion, to capture the joyful tear on the cheek of the mother and the awe in the child's eyes.
I ask you, Christians, should a Buddhist photographer be able to joyfully capture that moment, even while staying true to their beliefs, out of love for fellow humans?
It is more than enough, for a wedding photographer, to capture the love that exists between the participants; the joyfulness of their families; the aesthetically pleasing way that the setting sun shone on the dinner tables with their unique centerpieces; the laughter on the faces of the assembled during the charming toasts.
Even at the moment when the rings are exchanged two people are showing love to each other!
An orthodox Christian photographer will not believe that she witnessed a marriage, and might disapprove of honeymoon activities to come. But isn't there quite a lot for that photographer to celebrate, even at a same-sex wedding where she finds the claim to matrimony to be problematic and wrongheaded? Isn't it right to glory in any moment when, inspired by love, people commit to honor and care for one another in good times and bad, in sickness and in health, for life?
Isn't there always reason to celebrate an extended family gathering together, where the elderly can smile at the little ones playing as nephews indulge their aunts with a dance? Isn't there something divine in a dozen old friends gathering together for a meal, their hearts grateful for the presence of one another? A photographer who captured all that would earn her fee without betraying her faith. And don't Jesus's teachings commend us to associate with people even when we believe them to be sinners? Aside from sinning oneself, isn't going as far as one can to accommodate others exactly what Christ's actions ought to inspire?
Christian photographers should take pictures at gay weddings with a clear conscience. But if a tiny subset searches their conscience and decides, in spite of my arguments, that they cannot, legal sanction shouldn't await them, just more persuasion—which isn't, as many would have you believe, tantamount to doing nothing. Persuasion can affirm the equal dignity that gay marriages deserve to enjoy. And it may well produce more effective results than fining Christian photographers.
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