Do Gay Rights Trump the First Amendment?

The equal treatment of gay couples is more important than the free speech rights of photographers


And if gay rights do indeed trump the First Amendment when it comes to compelling a photographer to photograph a gay wedding, then it would also compel a writer to write about gay marriage or a director to make a movie about gay marriage.

There would essentially be no more First Amendment for anyone engaged in any creative speech that he or she earns a living doing.

"In asking the Supreme Court to hear her challenge to the law, Ms. Huguenin said that she would “gladly serve gays and lesbians — by, for example, providing them with portrait photography,” but that she did not want to tell the stories of same-sex weddings. To make her celebrate something her religion tells her is wrong, she said, would hijack her right to free speech.

So she turned down a request from a lesbian couple, Vanessa Willock and Misti Collinsworth, to document their commitment ceremony. The women, who hired another photographer, filed a discrimination complaint against Ms. Huguenin’s studio, Elane Photography. So far, the studio has lost in the courts.

There are constitutional values on both sides of the case: the couple’s right to equal treatment and Ms. Huguenin’s right to free speech. I asked Louise Melling, a lawyer at the American Civil Liberties Union, which has a distinguished history of championing free speech, how the group had evaluated the case.

Ms. Melling said the evaluation had required difficult choices. Photography is expression protected by the Constitution, she said, and Ms. Huguenin acted from “heartfelt convictions.”

But the equal treatment of gay couples is more important than the free speech rights of commercial photographers, she said, explaining why the A.C.L.U. filed a brief in the New Mexico Supreme Court supporting the couple.

There is a First Amendment right to Freedom of Speech. It should trump any invented right to compel businesses to accept your business.

This goes back to JFK's invention of a right to be served anywhere leading to the Civil Rights Act of 1964. While people should be served everywhere equally, there is no such right, nor does government have the right to compel such a thing.

Title II of the Civil Rights Act specified public accommodations, such as hotels and lunch counters. And now we somehow end up compelling photogs to take pictures.

The New Mexico Supreme Court depends on the same definition of public accommodation. Is a wedding photographer really a public accommodation?

The Court argued that creative professionals don't have freedom of speech as long as they offer their services for pay. That's a roundabout way of saying that the First Amendment is history. If the First Amendment does not apply to creative professionals, then it has no reason to exist.

Professional writers, journalists and artists have more need of First Amendment protection than amateurs do.