What’s Wrong with the World

Ooh, the Alien Tort Statute. That's a hot mess. The law states "[t]he district courts [i.e., the federal trial courts] shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." It doesn't create a cause of action, but it allows an alien to sue in a federal court (I believe) for an act that is a tort under the applicable law of a foreign nation (say I steal someone's yak in Mongolia in violation of the civil law of Mongolia) or (I know) for an act within the U.S. that violates a small range of common-law "law of nation" norms.

I try to avoid drawing conclusions about judicial decisions from news articles, but if the linked article is accurate, it looks like the plaintiffs might have alleged that some of the defendant's conduct took place inside the U.S., which would place the complained-of conduct theoretically within the bounds of the ATS.

This is on a motion to dismiss, so the court had to take the plaintiff's factual allegations as true if they are facially plausible as alleged. So if the Complaint recites factual allegations that show that this defendant, for instance, conspired with the Ugandan government, the judge had to accept that the defendant had conspired with the Ugandan government.

The question then becomes whether those facts amount to something you can be sued for, because the court obviously doesn't take the plaintiff's legal conclusions for granted. The issue here would be whether the conduct alleged constitutes "a violation of the law of nations with the requisite definite content and acceptance among civilized nations." Kobel v. Royal Dutch Petroleum. I am supremely skeptical, to say the least, that what this guy has been accused of actually amounts to such a violation. But that said, the Complaint may be full of howling lies and look like a violation. The court doesn't get into that at this stage. If someone wants to pull the opinion off PACER, it will shed additional light.

My _impression_ (very fallible) is that they are _not_ alleging that his action took place within the United States, not even in part. That would seem to explain what sounds like incredulity from his lawyer.

I must say, though, re. the first part: Does this mean that some Canadian could sue me in U.S. suit for a tort because I violated the "hate speech" laws of Canada? I mean, there are tons of things that are illegal in other countries that aren't illegal in the U.S. In fact, many things that are specifically _protected_ by the laws of the U.S. For example, some countries have anti-proselytizing laws that make it illegal to try to convert people to Christianity even by peaceful persuasion. Is it really possible under the ATS for someone to sue a U.S. citizen in U.S. court for having witnessed to someone in Iraq? Even if part of the action took place in the U.S. (e.g., suppose that the witnessing took place over the Internet and the U.S. citizen never left his computer), that's got to be disallowed.

So it seems quite illogical to claim that the photographer had to take pictures of a lesbian commitment ceremony just because the lesbians happen to consider this commitment ceremony to be an important expression of their sexual orientation.

You need to realize the mindset. To them, it's like interracial marriage. Not taking pictures of gay ceremonies is seen as tantamount to not taking pictures of, say, black couples if you're white.

Not taking pictures of gay ceremonies is seen as tantamount to not taking pictures of, say, black couples if you're white.

Yeah, but not taking pictures of black couples ALSO should not be illegal. Regardless of what judges made of the "law" in court cases, a photographer should not be required to shoot something he chooses not to shoot. For one thing, photography is an art, and the photographer generally retains artistic ownership of his work (the couple cannot sell their photos for advertising, for example) because of his copyright. You cannot demand an artist do something artistic on the basis of "equal protection", and that ought to be obvious. It would be like requiring Shakespeare to write and put on a play that includes gay midgets and uses a blond white woman to play the part of Martin Luther King Jr - for equality reasons (whatever that would mean). You cannot make a photographer do "good art" on a subject. And there is no way to adjudge photos on an objective basis. And I hope very soon to hear about a photographer tell a gay couple "sure, I will photo your so-called wedding, but I gotta tell you, I can't guarantee a good job, because I will probably be doing some projectile hurling any time I see a kiss. If you want me on that basis, I'll do the shoot."

And that's all completely aside from the commercial nonsense: mandating a contractor to make a contract with a person with whom he has no business relationship - requiring the formation of an ongoing relationship normally requiring a certain degree of trust and agreement of objectives. That's effectively commercial slavery.

Jody Bottum's asinine article aside, there are far, far too many gays who would be more than happy to use weddings and other occasions to put Christians in jail for standing up to evil. We have to expect direct, outright persecution, with the gay issue only one focus point among many.

For one thing, photography is an art, and the photographer generally retains artistic ownership of his work (the couple cannot sell their photos for advertising, for example) because of his copyright. You cannot demand an artist do something artistic on the basis of "equal protection", and that ought to be obvious.

Exactly. How in the world can you start telling photographers they have to make your day beautiful and help you celebrate it? Totally nuts. I don't care who you are, it's nuts.

What can I say? I agree. Regardless, it should always be remembered that first and foremost this is seen as a civil rights issue, a sort of spiritual successor to the civil rights era of the 60's. This is something that's very important to realize when you try and figure out why gay marriage advocates do what they do.

There are two fairly obvious directions one can push on that. One direction is to say that a reasonable black person should also not demand that a photographer (yes, let's stipulate a racist photographer) put his artistic talents at the service of the black person's wedding, that such pushiness is incredibly foolish and apparently is being done just because we can. The other direction, to quote a black conservative I was reading recently, is, "Don't identify your sin with my skin." The homosexual rights attempt to co-opt black civil rights for their cause is insulting to conservative blacks who agree with the traditional view of sexuality. Moreover, homosexual behavior is, precisely, behavior, not a trait like skin color. They can say and pretend to the contrary, usually screaming at the top of their lungs that it is just the same, it is, it is, but in fact, it isn't. Even if one accepted (which I don't) the strongest possible "in-born" thesis of the homosexuals, it wouldn't follow that they are somehow forced like zombies to go out and have commitment ceremonies nor that such behavior is just the same as a matter of personal identity. A person who identifies himself as homosexual but has even a single ounce of common sense and respect for freedom in his mind would be able to recognize that this kind of enslavement of photographers, bakers, wedding coordinators, etc., etc., just to "celebrate" his chosen overt lifestyle is going well beyond anything the older civil rights movement ever tried to do and is, in fact, egregiously unreasonable.

Regardless of what judges made of the "law" in court cases, a photographer should not be required to shoot something he chooses not to shoot. For one thing, photography is an art, and the photographer generally retains artistic ownership of his work (the couple cannot sell their photos for advertising, for example) because of his copyright. You cannot demand an artist do something artistic on the basis of "equal protection", and that ought to be obvious.

Unfortunately, I don't think this legal argument would work. If Shakespeare offered his services as a contract for hire writer then he could be sued under the nondiscrimination laws for refusing a job related to a protected class just like this photographer. A private photographer cannot be sued for refusing to do photography, but one who runs a business surely can just like an employer that refuses to hire people on account of skin color or gender can be sued.

I think your best line of attack is purely rhetorical. Don't get too logical with the libtards on this because their support is emotional. Therefore rhetorically hammer them into the ground for supporting the coercion of these workers to work against their will. Put them in the same boat as Chinese leaders who force prisoners to make cheap products for export to the US. You give them too much credit when you try a rational argument on them.

Mike T, there has always been an uneasy relationship between the "employment" and the "public accommodations" aspects of non-discrimination law. In particular, most people think "public accommodation" means letting people eat at your restaurant. They don't think of it as applying to putting your artistic services at someone else's disposal. Nor is that the same thing as employment, either.

You may be right that public accommodations laws are always meant to apply just as much to expressive and artistic services as to _actual_ public accommodations (serving people at restaurants and the like), but that line has not often been tested or even brought up prior to the homosexual rights issue.

"a job related to a protected class"

There's also an intrinsic vagueness in this very concept of a job related to a protected class. What exactly does it cover? What if someone said that his sexual orientation is pedophilia and that he wants to put on a performance in which an adult actress plays a child and he goes through a fantasy wedding with her? And he wants the photographer to photograph it. Note that the fantasy wedding in this case isn't in itself an illegal activity. And it's his own personal expression of his sexual orientation. And sexual orientation is a protected class. Do non-discrimination laws mean that the photographer has to take pictures celebrating the fantasy wedding?

As I pointed out in the main post, religion is also a protected class, but I don't imagine most judges would allow suits requiring photographers to photograph *just any* ceremony, not even just any ceremony that doesn't happen to be illegal, which its adherents happened to dub an expression of their own religion. Can a vegetarian baker be forced to make a cake that says, "Meat eating is wonderful" just because the people who ask for it say they are going to consume the cake as an important part of a religious ceremony that expresses their religious identity? Does that automatically get them the "protection" of non-discrimination law for forcing the baker to make the cake?

Does a member of NOCirc or whatever it's called have to take photographs of a circumcision if it's a Jewish circumcision?

And so forth.

The photographer in this case pointed out that she would take lots of pictures of lesbians, just not of a ceremony expressly celebrating their lesbianism. Surely this has some sort of logical connection to the claim of discrimination on the basis of sexual orientation.

So this case really amounts to a rather extreme extension of non-discrimination laws to say that, if you're in a business that helps people celebrate or memorialize things, you must positively celebrate anything that this particular "protected class" tells you is a personal expression of their protected class status. I highly doubt that non-discrimination laws would be extended that far for other protected classes.

Tony, you make an excellent point. One wonders whether a homosexual couple would have prevailed in New Mexico's courts had they been constraining a man to paint, with his own eyes and hands and materials, a portrait of a homosexual couple in an amorous embrace. The downright despotic nature of this imposition on a man's conscience is present in either case.

And to think--one cannot be compelled to recite a pledge of allegiance to the United States, yet he can be compelled to pay obeisance to "inclusion" by active word and deed. Homosexual activists are, quite simply, loathsome tyrants, and ought to be opposed as such.

And to think--one cannot be compelled to recite a pledge of allegiance to the United States, yet he can be compelled to pay obeisance to "inclusion" by active word and deed. Homosexual activists are, quite simply, loathsome tyrants, and ought to be opposed as such.

This is why, whenever I see libertarians wring their hands about gay rights, I wonder aloud if they've ever had any actual exposure to the "homosexual community." I can't think of a group of people who libertarians tend to have less in common with from temperament to ideology than the average homosexual. If homosexuality were not an abomination, they'd still be rightly regarded as a bad of would-be tyrants by any free society.

Unfortunately, I don't think this legal argument would work. If Shakespeare offered his services as a contract for hire writer then he could be sued under the nondiscrimination laws for refusing a job related to a protected class just like this photographer. A private photographer cannot be sued for refusing to do photography, but one who runs a business surely can just like an employer that refuses to hire people on account of skin color or gender can be sued.

This is similar to the general rule that one cannot obtain specific performance for a personal-service contract. There are just some sorts of things the law won't or can't compel a person to go out and do.

The NM ruling is going to fare poorly in the Supreme Court if they grant cert., which is a likely outcome.

I haven't had a chance to go look more closely at the ATS issue. Sorry, Lydia.

Hope you're right about that, Titus.

I wish that free speech argument could also be applied to bakers and wedding cakes, wedding coordinators, and printers, but I doubt that it ever would be. If we can protect the photographers, that'll be something.

On the other thread, commentator Crude made a point very similar to mine int he main post. He said:

What strikes me as particularly absurd about the photography ruling is the following.

It is my understanding that the problem here was not 'We don't want to take pictures of a gay person.' It was, 'We do not want to take pictures of *two people in this context*.'

Let's say a black man comes to my hypothetical photography shop and wants me to take a picture of him dressed as Hitler. I don't want to take this picture. Did I just discriminate against his race? That seems absurd. Likewise, it seems to me that to have any intellectual bite in this case, this photography couple would have to be saying, 'We don't want to have any business from gay men, period, no matter what the picture is.' But if the complaint is, 'We don't want to take pictures of two people in this context.'? I think there should be zero, absolutely zero, problem with that.

That was my point in the main post and in several of the comments here about the legal stretch involved in the NM case, _especially_ given that NM doesn't recognize homosexual "marriage." In essence, the judges were writing an opinion _as if_ NM recognizes homosexual "marriage," the photographer takes wedding photos, but the only reason the photographer wouldn't take these wedding photos was because of the "sexual orientation" of the people involved. But since that isn't the case, why is the photographer being required to treat the commitment ceremony as a wedding at all? The "reasoning" ends up being something like "If so-and-so is a member of a protected class, and if so-and-so tells you that the private ceremony he wants you to record is meaningful to him as an expression of his protected-class status, then you have to photograph it or you're discriminating on the basis of his protected-class status." Hence my examples above regarding religion, etc.

Crude asks whether the photographer refuses to take photos of people who identify as homosexual at all. According to all the stories I've read on the case, the whole argument of the photographer's lawyers turned on the assertion that she does not so refuse but only refused to take these particular photos because they specifically celebrate a homosexual relationship.

I'll just add that I do stand by my points about protected-class status generally, which I made in this comment.

http://whatswrongwiththeworld.net/2013/08/the_post_is_remarkably_ungener_1.html#comment-225890

It will always go beyond only penalizing the "reasonable" cases to micromanaging employer behavior. Even the whole hostile work environment thing makes a kind of weird sense when you start thinking of the fact that otherwise employers could try to "drive off" the employees the law is meant to protect. Moreover, even non-discrimination laws based on things the prospective employee can't help rather than behavior cannot and should not cover all unreasonable refusals to hire or firings of that sort. Right now you can be not-hired for being too short or too tall, having red hair, having acne, and so forth. Which in my opinion is a good thing. Our experiments thus far in micromanaging an employer's thoughts and motivations have not turned out well at all. But that just shows what is meant by "protected class status." _That particular_ group is selected for protection from what are deemed unreasonable employment decisions and decisions concerning services, while other traits are not similarly protected.

However, I do agree that the photography decision goes beyond even other draconian aspects which are a more natural part of non-discrimination law.

However, I do agree that the photography decision goes beyond even other draconian aspects which are a more natural part of non-discrimination law.

What's really starting to irritate me here is that it seems as if the judges in this question are taking a page straight out of the LGBT playbook.

A: I object to that act you engage in, and I find it wrong.
B: You're a monster and a bigot!
A: What?
B: You object to my very existence because of who I am and what urges I have, that are completely beyond my control!
A: That's insane, I do not. I simply object to these acts you willfully engage in.
B: THEY ARE THE SAME THING.

Well, no. They're not the same thing. It's insane to try and suggest otherwise. But you know what? 'I dislike homosexuals, period.' sounds a lot worse than 'I disapprove of same-sex sexual acts or sex-related ceremonies.' It's a lot easier to regard the former as being unfair and mean-spirited as opposed to the latter. But the latter's particularly important. The solution? Blind yourself so there's no difference between the former and the latter.

And I hope this time - if this case goes to the SCOTUS - conservatives don't take the bait. One thing that worries me here is that I haven't really seen the aspect I'm talking about focused on in any political discussion on this. Now, I'm not privy to all the facts: maybe the photographers refused to take pictures of anyone they know is gay, no matter the context. I doubt it, but hey, I could be wrong. Also, maybe the point I'm talking about is being argued somewhere, and I've missed it. I can only read so much news. But with those concerns set aside, if this is the situation I think it is, and yet these points are not hammered home in editorials and commentary and even legal argument, then something rotten will strike me as going on.

Now, I'm not privy to all the facts: maybe the photographers refused to take pictures of anyone they know is gay, no matter the context

That isn't even alleged.

One thing that worries me here is that I haven't really seen the aspect I'm talking about focused on in any political discussion on this.

I discussed it at some length in the main post and gave more examples of the same argument in the comments in my response to Mike T, before you even made your comment on the other thread.

Lydia,

That isn't even alleged.

Fair enough. I am just being supremely careful here, and that's due to my ignorance of the matter. I didn't read the court documents.

I discussed it at some length in the main post and gave more examples of the same argument in the comments in my response to Mike T, before you even made your comment on the other thread.

I'm talking about in a more mass media sense - editorials, journalist reports, etc. My bad for not being more specific - 'political discussion' covers exactly what you did, so fair cop.

I could be wrong there too - or at least, missing something - but so far what I tend to see is closer to a report of, 'Does a business have the right to discriminate against a couple just because they're gay?'

Well, the operative word there is "couple," isn't it? It's qua couple that this photographer is being asked to photograph them, in a context celebrating their couple-hood. And I'll pretty much guarantee you, though you'll probably disagree, that anyone who could ask that question ("Does a business have a right to discriminate against a couple just because they are gay?") will mean discriminate against their couple-hood. "Discriminate" by refusing to endorse and enable that couple-hood.

Another example that has come up (this is a real-world one, though I don't have the link to hand) was an inn owner that didn't want to rent a room with only one bed to a couple that told him that they were lesbians. He was discriminating against a couple qua couple "just because they are gay." He was refusing to rent them the very bed...

Also, btw, the photographer's lawyers have made a big deal about her willingness to photograph people who happen to be homosexual, just not in this type of context. That has been part of their legal argument but has been rejected by the NM court.

Well, the operative word there is "couple," isn't it? It's qua couple that this photographer is being asked to photograph them, in a context celebrating their couple-hood. And I'll pretty much guarantee you, though you'll probably disagree, that anyone who could ask that question ("Does a business have a right to discriminate against a couple just because they are gay?") will mean discriminate against their couple-hood. "Discriminate" by refusing to endorse and enable that couple-hood.

I'm not sure what you're expecting me to disagree with here. I'd maintain what I was maintaining to begin with - there is a dramatic difference between opposing an individual, and opposing acts individuals engage in. Even in a 'civil rights' sense, I think this would be the case - at least among people thinking rationally.

I suppose someone could argue that there is some crossover. Discriminate against me because I attend a Catholic church every Sunday, and you can reasonably say that you're discriminating against me 'because I'm Catholic'. But there is a gap between sexual orientation and sexual behavior, and a further gap between sexual behavior and 'commitment ceremonies'/mock marriages and more. If I discriminate against a man because he does unspeakable things at a truck stop every other weekend, am I really discriminating against him because of his sexual orientation? /Really/? I know an idiot court may say so, but I'm talking intellectually here. And I think the case of refusing to take a picture of some mock 'marriage' cannot reasonably be said to constitute discrimination against someone based on their sexual orientation.

If I refuse to take a picture of someone's Kwanzaa celebration, because I think Kwanzaa is idiotic and offensive, did I engage in racial discrimination? It's not a religious holiday. It's some BS secular holiday.

Also, btw, the photographer's lawyers have made a big deal about her willingness to photograph people who happen to be homosexual, just not in this type of context. That has been part of their legal argument but has been rejected by the NM court.

Well, then the NM court is absolutely insane. Not a big surprise, given the strangely activist, even condescending tone I read in their decision. Thanks for the information, it's encouraging they went for that argument.

By the way, it's not news to anyone here I'm sure, but it's still one reason to think the 'Bad News' in NM may turn out to be good news.

85% of Americans think people should have the right to turn down a same sex wedding job. Granted, polls about things like this can be shaky, but considering the current support for gay marriage, this is encouraging. If people want to engage in lawsuits like this, it may open yet another avenue to respond to these LGBT groups.

I'm not necessarily saying I expect _you_ to disagree with it, Crude, but I think it may be much harder to craft "non-discrimination" laws that include "sexual orientation" but don't lead to craziness like this than you might think.

Note MarcAnthony's point up above that the leftists will say that this is like refusing to photograph an interracial marriage. Now, Tony and I both, in my opinion sensibly, argued that the photographer should also have the freedom to refuse to photograph an interracial marriage.

But what about under the circumstance where

1) There's a law in place against "discrimination on the basis of race" and
2) The state in which it occurs recognizes interracial marriage (as all states do)?

Now, at that point, about the only thing a photographer who refuses to photograph the interracial marriage is going to have to hang his hat on is Titus's point about artistic expression--that is, that a photographer is engaging in "speech" and therefore isn't just like a person catering a wedding (say).

In the NM case, adding to the craziness, is that the parallel to #2 doesn't even apply, which is why I emphasized it.

But suppose that it did. Suppose that this were in Massachusetts, for example. Or suppose that the state recognized civil unions and this "commitment ceremony" were connected with a civil union, which is legally set up to be equivalent to marriage.

Then put together non-discrimination law with recognition of homosexual "marriage" with the fact that the photographer advertises a wedding photography service, and what do you have? A big mess, that's what.

Or what if the photographer simply offered something like romantic couple/engagement photo shoots? Then the issue of marriage per se wouldn't even come into play.

And in that case, I think it would become pretty difficult for the photographer to turn away an interracial couple.

And if "discrimination on the basis of sexual orientation" is also illegal, pretty difficult on the basis of the same legal reasoning to turn away the homosexual couple. "You photograph romantic couples but are turning us away just because we happen to be two men in love with one another."

So I really think that it's somewhat more difficult than you realize to have these non-discrimination laws without doing things that _you_ regard as unreasonable.

Also, quite frankly, I bet a lot of short men get discriminated against for jobs, and it's not at all obvious to me why a homosexual person should have more protection against discrimination than a short man. There really is very little rationale for protecting *just that* trait as opposed to a gazillion others.

And if "discrimination on the basis of sexual orientation" is also illegal, pretty difficult on the basis of the same legal reasoning to turn away the homosexual couple. "You photograph romantic couples but are turning us away just because we happen to be two men in love with one another."

Love doesn't show up on camera (no matter how melodramatic a person may insist it does). Especially if you'd refuse to photograph two straight men in a similar pose/situation, and if you'll demonstrably take photographs of gay people in other situations, then I think prima facie the case that you're discriminating against the people because of their sexuality rather than a particular act is automatically dead in the water.

The same goes for interracial marriage. If you'll take photos of blacks and whites individually, and together, and in all manner of contexts, but when it comes to an interracial marriage you refuse, then who are you discriminating against? The black woman? The white man? Granted, you may be discriminating against the act of interracial marriage. But an act is not a person, and while some counterarguments are available ('You can always attribute your refusal as a refusal to portray an act, not a person, even if the person is really targeted') the replies are easy ('It's going to be pretty freaking obvious over time.')

Now, I think it's entirely possible for a judge to interpret this and make up a reason why discriminating against an act is, ultimately, discrimination against an individual. Judges can do all kinds of idiotic things I disagree with. You can even convincingly argue that, once a law of a certain kind is in force, it is not more likely for those idiot judges to make such and such a law, and thus have an argument against passing that law (no matter how reasonable it is in the ideal) in the first place. But that's going to take you off in a different direction than I think you're going right now. That's about idiots misinterpreting/'creatively reinterpreting law' to achieve an end. Not an issue with the idealized law itself.

Also, quite frankly, I bet a lot of short men get discriminated against for jobs, and it's not at all obvious to me why a homosexual person should have more protection against discrimination than a short man. There really is very little rationale for protecting *just that* trait as opposed to a gazillion others.

You may well be right. And, unfortunately, for what I think you're trying to accomplish - that may well be the best route: protect a gazillion other traits, or try your best to. And once everyone is paralyzed by the laws, we can collectively ask 'Well, what went wrong?'

Granted, you'd probably argue that it's better to simply not have those laws to begin with. But clearly one lesson we should learn is that sometimes, we have to work with the options we're given.

Really, I think there is an absolutely clear-cut distinction between individuals and act when it comes to sexual orientation. And honestly, the opportunities for political activism on this front are ripe in principle.

And now a more interesting question. I touched on this briefly in an older thread here and there's a heck of an argument revolving around this going on at Ed's blog.

We all agree here, then, that a photographer should not be forced to photograph an interracial marriage, yes?

But what if a restaurant owner forced an interracialy married couple to sit in a different area of the restaurant than married coupless? Let's say he figures this out by overhearing their conversation.

Would you agree that he has every right not to serve them on the grounds that he doesn't believe people who are interracially married should be associating with those who marry within their race (They could "corrupt" them, or it's a religious belief. Who knows why?).

I'm not actually sure what my answer to that question would be, but I'm more and more inclined to think that the answer SHOULD be (though it isn't) that he's allowed to do that (split up the married couples). Of course, I'd be pretty disgusted by this and would probably boycott that restaurant, but that's neither here nor there.

when it comes to an interracial marriage you refuse, then who are you discriminating against? The black woman? The white man?

Allegedly, both, for refusing to photograph their wedding ceremony when you wd. photograph the wedding ceremony of a couple where both were black or both were white. Again, what makes the NM case so crazy is the question as to why the photographer had to regard this as a wedding ceremony at all in that particular state.

Look, it's not that I can't follow what you're trying to say, but you're trying to draw a line here that is a lot finer than I think you fully realize.

And honestly, the opportunities for political activism on this front are ripe in principle.

I'm afraid I disagree as a sheer practical matter. We're way beyond the point where anybody is going to try to draw the lines just precisely where you want to draw them and hold them there.

In my own town, which isn't super-liberal, an ordinance passed that _defined_ "sexual orientation" as including "sexual behavior." That was right in the wording of the law. The issue of passing a law that tried to draw the line there was never even on the table for a nanosecond. Conservatives knew they wouldn't be able to hold the line just there, and the activists (the liberal ones, of course) interested in passing _any_ law of that kind would have laughed any such idea to scorn.

As a matter of fact, when we fought the ordinance we were even told by a very conservative group who coached us not to emphasize the homosexual aspects of the law *at all* (including the behavioral ones) in giving interviews and what-not. We were told instead to focus entirely on the "gender identity" aspects, which admittedly were more radical. (Men who "identify" as women have to be allowed to use women's bathrooms and so forth, forcing employers to hire cross-dressers, etc.)

Despite those very radical aspects, it passed anyway.

As I've watched this issue over the years, the only groups I've seen who have tried to hold the act-orientation line strongly are explicitly Christian organizations such as colleges. They've not had very good success. Calvin College was allegedly holding that line, and what they've gotten in return are a bunch of professors who have been teaching in favor of homosexual "marriage" and have practically staged a rebellion when some of the trustees finally got wind of it and tried to tell them that was contrary to school policy. AFAIK, the trustees backed down and "academic freedom" prevailed. (I'm not saying that the professors in question were all homosexual. Probably most or all of them weren't. I'm saying that the attempt to be "truly welcoming" to people of homosexual orientation while not approving of the actions was part of the sociological road to the current state of affairs.)

The American Philosophical Association added "sexual orientation" to its non-discrimination statement umpteen years ago with a representative of Calvin either on the APA board or the president of it or something like that.

A few years ago, the APA activists began pushing to penalize schools who advertise in their jobs newsletter who ban homosexual _activity_ by their faculty or students. The Calvin guy stood up and protested that he had always understood the word "orientation" in the policy to refer only to inclinations, not to actions. He was hooted down in contempt by pretty much the whole of the APA and the suggested APA policy went into place, stating explicitly that schools were violating the non-discrimination policy if they "discriminate" on the basis of homosexual activity.

MarcAnthony, I think the world would be a better place without any non-discrimination laws at all. I know that's a radical approach in this day and age, but it's just not been worth it. I think the historical verdict is that non-discrimination laws have been a disaster and that people have to be allowed to be jerks if they want to be jerks, and let the chips fall where they may.

As long as we have such laws, I'm not opposed to Christians suing under them if they've suffered obvious religious discrimination or what-not. After all, even worse than having non-discrimination laws is having ones that are cynically enforced in a blatantly biased manner.

But better still just to ditch it all.

Look, it's not that I can't follow what you're trying to say, but you're trying to draw a line here that is a lot finer than I think you fully realize.

I just disagree. I think there's a big difference between 'Someone can object to the idealized law in question and/or reinterpret it in an utterly ridiculous fashion' and 'This idealized law, by its very nature, must also cover these other things'. The former I think really happens. The latter? No. It's pretty easy to draw the line in the questions we're discussing. Now, others may choose not to draw those lines, or they'll choose to interpret them in some crazy, dumb way. That's a problem. It's just a different problem than the one at hand.

I'm afraid I disagree as a sheer practical matter. We're way beyond the point where anybody is going to try to draw the lines just precisely where you want to draw them and hold them there.

Activism is pretty broad, and these laws get introduced in many, many areas, each with different demographics, sensibilities, and even advocates and opponents. I don't think it's quite that open and shut even now.

In my own town, which isn't super-liberal, an ordinance passed that _defined_ "sexual orientation" as including "sexual behavior." That was right in the wording of the law. The issue of passing a law that tried to draw the line there was never even on the table for a nanosecond. Conservatives knew they wouldn't be able to hold the line just there, and the activists (the liberal ones, of course) interested in passing _any_ law of that kind would have laughed any such idea to scorn.

As a matter of fact, when we fought the ordinance we were even told by a very conservative group who coached us not to emphasize the homosexual aspects of the law *at all* (including the behavioral ones) in giving interviews and what-not. We were told instead to focus entirely on the "gender identity" aspects, which admittedly were more radical. (Men who "identify" as women have to be allowed to use women's bathrooms and so forth, forcing employers to hire cross-dressers, etc.)

Despite those very radical aspects, it passed anyway.

Do you have a link to the law? I'd like to read it for myself. For that matter, do you have a link to the actual public defenses your side gave?

Because really - maybe you guys were given bad advice. Maybe you did a lousy job of defending things. Maybe you didn't get your message out. Maybe the population was just plain against you. Maybe a lot of things. I'd like to see what happened, and go over it myself.

They've not had very good success. Calvin College was allegedly holding that line, and what they've gotten in return are a bunch of professors who have been teaching in favor of homosexual "marriage" and have practically staged a rebellion when some of the trustees finally got wind of it and tried to tell them that was contrary to school policy. AFAIK, the trustees backed down and "academic freedom" prevailed. (I'm not saying that the professors in question were all homosexual. Probably most or all of them weren't. I'm saying that the attempt to be "truly welcoming" to people of homosexual orientation while not approving of the actions was part of the sociological road to the current state of affairs.)

I disagree, or at least, I think the problem is that 'truly welcoming' is rarely the culprit, as opposed to utter insincerity by fake conservatives who are going after an incremental strategy politically. I myself just finished locking horns with exactly this sort of person. I have very low regard for them.

A few years ago, the APA activists began pushing to penalize schools who advertise in their jobs newsletter who ban homosexual _activity_ by their faculty or students. The Calvin guy stood up and protested that he had always understood the word "orientation" in the policy to refer only to inclinations, not to actions. He was hooted down in contempt by pretty much the whole of the APA and the suggested APA policy went into place, stating explicitly that schools were violating the non-discrimination policy if they "discriminate" on the basis of homosexual activity.

What is 'homosexual activity'? Going to a pride parade? Joining an LGBT organization? Doing unspeakable things at the truck stop? All of the above?

I mean, it's pretty self-evident that you should have a right to choose what you're going to photograph.

But on the other hand, it's a business, and not taking the photograph of this couple's wedding seems to be analogous to choosing not to serve a mixed-race couple in a restaurant (not morally, of course, but as a logical extension).

I suppose the answer to this, short of getting rid of the non-discrimination laws like Lydia said (and which I would not necessarily oppose), is to point out that, whatever people said in the past, gay marriage and interracial marriage are not the same thing. That people used similar arguments in the past in regards to interracial marriage is pretty much irrelevant.

MarcAnthony,

But on the other hand, it's a business, and not taking the photograph of this couple's wedding seems to be analogous to choosing not to serve a mixed-race couple in a restaurant (not morally, of course, but as a logical extension).

I disagree, and here's why.

There was nothing about this couple that would have precluded these photographers from taking their picture, given what we know. Either individually, or together. What was central here was the ceremony.

With a mixed-race couple, however, you're 'denying them service', period. What would be analogous is refusing to serve drinks at a mixed-race wedding - but if they came into your bar and wanted a drink at another time, you'd serve them. Now, you could argue 'well, their marriage was an act, so you could deny serving them for that act'. But I think the key difference here is that in the case of the 'wedding' photograph, you'd be an active participant in the whole affair. If they just wanted a drink, there's nothing you're actively participating in there - the problematic act took place in the past.

MarcAnthony,

I suppose the answer to this, short of getting rid of the non-discrimination laws like Lydia said (and which I would not necessarily oppose), is to point out that, whatever people said in the past, gay marriage and interracial marriage are not the same thing. That people used similar arguments in the past in regards to interracial marriage is pretty much irrelevant.

I certainly agree with that very strongly as well. As often, the leftist position is wrong on *so many* levels that it's kind of a case of "pick your own level."

Crude,

Maybe the population was just plain against you.

Yes, I think they were. That was more or less my point. And more: I think the population of the town as a whole would never in a million years have bought the line that "we're going to make a law banning people from discriminating against homosexual orientation but that doesn't ban them from discriminating against people who engage in homosexual sex acts." They just plain supported a different law than that, a stronger one. I pounded the streets and talked to lots of people collecting signatures at various points in the case, and I saw the cause was pretty much lost from the get-go. I even had people say to me, "I wouldn't want to do anything against the gays." That outright. As regards the "sexual identity" aspects, I think most of the populace was playing ostrich on that part. The majority, I fear, supported the pro-homosexual aspects of the law down to the ground but didn't want to believe the gender identity aspects were as crazy as they sounded, so they voted for it anyway.

What is 'homosexual activity'? Going to a pride parade? Joining an LGBT organization? Doing unspeakable things at the truck stop? All of the above?

If you ask the APA, you bet your boots it included all of the above.

Lydia,

Yes, I think they were. That was more or less my point. And more: I think the population of the town as a whole would never in a million years have bought the line that "we're going to make a law banning people from discriminating against homosexual orientation but that doesn't ban them from discriminating against people who engage in homosexual sex acts." They just plain supported a different law than that, a stronger one. I pounded the streets and talked to lots of people collecting signatures at various points in the case, and I saw the cause was pretty much lost from the get-go. I even had people say to me, "I wouldn't want to do anything against the gays." That outright. As regards the "sexual identity" aspects, I think most of the populace was playing ostrich on that part

Alright. I still would like to see the law that was passed, and any advertisements/arguments that are easily linkable for me to view. I want to review this for myself.

If you ask the APA, you bet your boots it included all of the above.

Well, then that's a problem - the net was too broad. If 'simply joining any kind of organization for 'out' gays' was wrapped up with the truck stop, then the first thing that should have been done was disentangle the two. I know I focus on this particular theme, so I won't highlight it more than I already have just now.

I'm not saying the APA would have approved in that case. Frankly, I'd like the entirety of modern academia to be dissolved. But fighting for the right to discipline people for behavior as broad as 'being public about their sexuality' and 'being caught having sex in a public part' is a poorly considered move.

There was nothing about this couple that would have precluded these photographers from taking their picture, given what we know. Either individually, or together. What was central here was the ceremony.

I was more specific originally, so I'll repeat that here: Let's say instead they they would be happy to serve them, just in a separate "interracial couples" area on the other side of the restaurant. There, it's not SERVING them that's the problem, it's serving them IN THAT AREA. That seems roughly analogous.

Of course, it seems that we've already come up with an acceptable rebuttal anyway.

I don't think you understand, Crude: The APA was bound and determined that *being sexually active as a homosexual* ought not to be grounds for "discrimination" even for a Christian school, period, end of discussion. Even if the Christian school has a clear policy that it can discipline people for having sex outside of one-man-one-woman marriage, including heterosexual fornication and adultery. It's not a question of the Christian schools' being too broad. It's a question of the APA's being adamant that it's "bigotry" even for religious institutions to "discriminate" against men who commit sexual acts with men or women who commit sexual acts with women. I don't know how much clearer to make it. No compromise was possible whatsoever.

Lydia,

I don't think you understand, Crude: The APA was bound and determined that *being sexually active as a homosexual* ought not to be grounds for "discrimination" even for a Christian school, period, end of discussion.

I'm asking questions, and reacting to the responses that I get - I don't know the specifics of what went on in the APA discussion, other than remembering a philosopher blogger who reacted to a demand that the philosophers give an air-tight defense of the morality of same-sex sexual activity by saying that the very demand was insulting, and that /the morality of same-sex sexual behavior is not open to question/. Meaning, it was obviously moral and good, period, end of story, this should be a verboten topic to even question in the APA. Which to me was an amazing thing. There's nothing quite like a philosopher saying something should not be questioned. Especially when we're talking about a sex act. Doubly so when *infanticide* probably would not make the cut by their judgment.

Anyway, yeah, I probably do not understand. I'm trying to understand - that's why I'm asking these questions. And what's this about compromise? I'm not a fan of compromise - I'm a fan of A) working with what's doable/available, B) making sure the right battles are being fought, and C) NOT compromising on core values. If the APA voted that way, it looks to me like the only possible response is for Christians to withdraw from the APA altogether. Or openly revolt against their policies, and dare the APA to try and enforce them. Of course, I'm sure this involves all manner of professional sacrifices and tradeoffs, so it's easy for me to say 'you guys should make this sacrifice' when I'm not affected. On the other hand, if we're going to talk principle an acting on it, let's consider that avenue. Right?

My problem was that it sounded as if what was being argued for was the right to discriminate 'based on homosexual behavior', with 'homosexual behavior' being so broadly defined as to include utterly non-sexual things. If THAT was what was attempted, then it seems like a foolish move. If that's not what was attempted, then I plead justifiable ignorance - this is the very thing I was asking about.

It's why I keep asking for a link to the law you're talking about. I want to see these things for myself to evaluate them. Googling around for the APA policy, the first thing I notice is that the American Philosopher's Association is hard for search engines to distinguish from the American Psychologists' Association. The second thing I notice is, according to the Leiter blog, this is what was added to the APA policy (bolding the relevant portion):

The American Philosophical Association rejects as unethical all forms of discrimination based on race, color, religion, political convictions, national origin, sex, disability, sexual orientation, gender identification or age, whether in graduate admissions, appointments, retention, promotion and tenure, manuscript evaluation, salary determination, or other professional activities in which APA members characteristically participate. This includes both discrimination on the basis of status and discrimination on the basis of conduct integrally connected to that status, where "integrally connected" means (a) the conduct is a normal and predictable expression of the status (e.g., sexual conduct expressive of a sexual orientation), or (b) the conduct is something that only a person with that status could engage in (e.g., pregnancy), or (c) the proscription of that conduct is historically and routinely connected with invidious discrimination against the status (e.g., interracial marriage). At the same time, the APA recognizes the special commitments and roles of institutions with a religious affiliation; and it is not inconsistent with the APA's position against discrimination to adopt religious affiliation as a criterion in graduate admissions or employment policies when this is directly related to the school's religious affiliation or purpose, so long as these policies are made known to members of the philosophical community and so long as the criteria for such religious affiliation do not discriminate against persons according to the other attributes listed in this statement. Advertisers in Jobs for Philosophers are expected to comply with this fundamental commitment of the APA, which is not to be taken to preclude explicitly stated affirmative action initiatives.

So yep, they made it pretty damn clear. To hell with the APA, then. I somehow suspect that Christian universities did not react to this by withdrawing from the APA insofar as it was appropriate to do so? Or from barring their philosophers to join the APA?

"This includes both discrimination on the basis of status and discrimination on the basis of conduct integrally connected to that status, where "integrally connected" means (a) the conduct is a normal and predictable expression of the status (e.g., sexual conduct expressive of a sexual orientation)"

I take this to mean that if two heterosexual women had asked a photographer to photograph their same sex "wedding", the photographer could freely turn them down based on their heterosexual orientation because a same sex "wedding" is not deemed to be "integrally" connected with a heterosexual orientation. In short, its just fine to discriminate against people if they are not gay according to the APA. How ridiculous.

In a sense, Christian universities aren't qua universities "in" the APA. Some of them continue to try to advertise in their publications, and yes, it got pretty pathetic. For example, I remember seeing one Christian philosopher (cough) who teaches at a Catholic college and was asking whether his _department_ could still advertise without checking the Dreaded "we discriminate" Box when the _college_ sometimes hires priests for certain positions, who can only be male. Or there was one incident I remember on Leiter's blog around that time where somebody "outed" a Christian college that forbids homosexual sex to its students in the student handbook. They contacted someone or other (the philosophy department? the president?) to demand an explanation (!), and one of the philosophers responded by whimpering that, hey, that policy isn't enforced. That's how I remember it, anyway. It's been a few years. So there was plenty of abjectness on the part of alleged "Christians."

Forbidding their faculty to belong would be pretty harsh, even from my hard-line perspective. If their faculty ever get fired from the Christian school, they need to be able to apply for jobs, which can be hard to do if you can't go to an APA conference. However, a young philosopher should at most belong only when it's unavoidable and drop it the minute he gets tenure.

The non-discrimination policy I referred to in my local town defines "sexual orientation" as "Male or female homosexuality, heterosexuality or bisexuality, whether by orientation or practice." The intended referent of the word "practice" is hardly unclear and was not taken to be unclear by anyone on either side of the conflict or by any citizen I know of. I trust you do not think it unclear.

AFAIK, it's still possible for the moment for a philosopher to have an APA membership while believing the "wrong" things about homosexuality. For now. In fact, if they "discriminated" against a Christian philosopher on those grounds it would be in flat contradiction to the inclusion of "religion" (which is included) in their own non-discrimination statement. Even writing somewhere-or-other that homosexual sex is wrong is a behavior that might be reasonably enough regarded as "integrally connected" to one's traditional Christianity. Such are the plights of liberals with their non-discrimination policies.

Forbidding their faculty to belong would be pretty harsh, even from my hard-line perspective. If their faculty ever get fired from the Christian school, they need to be able to apply for jobs, which can be hard to do if you can't go to an APA conference.

Couldn't that be circumvented by simply joining the APA after you get fired? Can't Christians just join some Christian APA equivalent? Or does the Society of Christian Philosophers fail to do what the APA does? (Or worse yet, has a similar policy?)

The non-discrimination policy I referred to in my local town defines "sexual orientation" as "Male or female homosexuality, heterosexuality or bisexuality, whether by orientation or practice." The intended referent of the word "practice" is hardly unclear and was not taken to be unclear by anyone on either side of the conflict or by any citizen I know of. I trust you do not think it unclear.

Sure, I get what practice means. The only thing I don't get here is just what the law is meant to protect. So if someone is caught having sex in a public park, can they be fired? Or is any practice protected? The latter, I find hard to believe. I also find hard to believe anyone would have defended that.

I can understand it being advised that people not talk about that in their defense, but only in the sense that it's easy for someone to come off terribly if they don't choose their words. 'We can't have any of those homosexuals here, what with their love of (name horrible depraved act whether common or uncommon)' and then in comes the photogenic avowed monogamous gay couple to whimper and talk about how wrong that is.

Why emphasize "in the park" so much? I mean, honestly, one isn't in my view making a super-earth-shaking distinction between act and orientation if the only type of thing one thinks people should be allowed to "discriminate" against is sex in the park (or in public restrooms or what-not). Technically, I suppose that is a crime of some sort. My point, rather, would be that when someone says, "I'm opposed to discrimination on the basis of sexual orientation," what he almost certainly means, among other things, is that if Joe shows up at the company party and introduces another man as his "lover," it would be really bad, bigoted, etc., for the boss to fire him, even if the boss is a Christian. And that any such firing, if one is "caught" doing it, should be legally punishable. Or that if the person casually says, "My live-in gay partner is picking me up from this interview" in the entrance interview, that it would be wrong and should be illegal to refuse to hire him for that reason.

Couldn't that be circumvented by simply joining the APA after you get fired?

If you were a member at first (to apply for jobs out of grad school) and then you let your membership lapse, I believe they try to charge you some kind of make-up dues for the intervening years in order to prevent just that kind of thing.

Can't Christians just join some Christian APA equivalent? Or does the Society of Christian Philosophers fail to do what the APA does?

They don't have the big job conferences. And heaven knows, jobs are extremely scarce in philosophy anyway, so I don't see how a young philosopher can afford not to be able to go to the Eastern Division APA meeting around New Year's for interviews or even just to try desperately to pick up some interviews. Then again, I advise people anymore to think seriously about going into the field, just because of the huge economic crunch.

Why emphasize "in the park" so much?

Because it's a limit case puts things in stark relief, at least to a point.

My point, rather, would be that when someone says, "I'm opposed to discrimination on the basis of sexual orientation," what he almost certainly means, among other things, is that if Joe shows up at the company party and introduces another man as his "lover," it would be really bad, bigoted, etc., for the boss to fire him, even if the boss is a Christian.

Because orientation is not act, and if it's acts that are defended, quite a few things change. I want to know just what acts are covered. Are no lines drawn? Can a first grade teacher not be fired from his job no matter WHAT sexual acts he knowingly engages in, legal or not? Can that NEVER be the basis of a firing?

The LGBT community has a subculture to it. This subculture is not one of monogamy, hand-holding and child-raising.

If you were a member at first (to apply for jobs out of grad school) and then you let your membership lapse, I believe they try to charge you some kind of make-up dues for the intervening years in order to prevent just that kind of thing.

Sure, but so what? Granted, it's an inconvenience, but if it's really a major source for jobs, etc.

I suppose the problem I'm having here is - and I'm saying this in the presence of philosophers who feel the sting of it far more than I do, and I know that - it seems like if the APA wants to pass a rule like this, then it's time for people to walk and protest. Apparently, they haven't. If this is what academia is turning into, I have severe trouble with the idea that the goal of the Christian should be to 'change academia from the inside' or the like. It should be to destroy and obviate it.

Because orientation is not act, and if it's acts that are defended, quite a few things change. I want to know just what acts are covered. Are no lines drawn? Can a first grade teacher not be fired from his job no matter WHAT sexual acts he knowingly engages in, legal or not? Can that NEVER be the basis of a firing?

Cynically, I'm inclined to answer, "It depends on whether you have tenure in your job." (Side note: I have known of at least one case at an ivy-league university where the word among the graduate students was that a particular tenured professor had retained his job after having been arrested and convicted for soliciting sex with a minor in the park.)

Slightly more seriously, though, I don't know that we really want to force employers to test the limits on this. I suppose if an employee _were_ convicted of a crime involving sexual acts (e.g., in public or with minors) the employer could fire him and claim that he would fire a heterosexual whose activities had those same other properties (e.g., being otherwise criminal). And we'd find out where the case went if the employee tried to bring a complaint or sue under the applicable statute. But why go there?

In any event, even if someone would say that the employer should be allowed to fire an employee for _those_ acts (not because they are homosexual acts but because they are criminal in some other way) but not for being openly involved in an active homosexual relationship, the general act-orientation distinction is out the window at that point. We're demanding that not just homosexual orientation but homosexual acts be disallowed as grounds for employment decisions. And unfortunately, I'm pretty certain that people who generally say they "don't want people to be able to be discriminated against for being gay" in 99% of the cases really do mean _actively_ homosexual and open about that, not just homosexual in mental orientation.

Slightly more seriously, though, I don't know that we really want to force employers to test the limits on this. I suppose if an employee _were_ convicted of a crime involving sexual acts (e.g., in public or with minors) the employer could fire him and claim that he would fire a heterosexual whose activities had those same other properties (e.g., being otherwise criminal). And we'd find out where the case went if the employee tried to bring a complaint or sue under the applicable statute. But why go there?

I'm not interested in employers testing limits before a judge here - I'm interested in arguments. When someone tells me that no sex act/desire between consenting adults can possibly be 'objectively disordered', or cannot justifiably lead to any sort of discrimination against them, I'm going to bring up quite a few specific examples to test their commitment. I'd like to see just how far this open-mindedness really goes - because I suspect (and routinely encounter) that very sterilized idealizations tend to rule the day, when the reality is a bit more touchy.

And unfortunately, I'm pretty certain that people who generally say they "don't want people to be able to be discriminated against for being gay" in 99% of the cases really do mean _actively_ homosexual and open about that, not just homosexual in mental orientation.

No doubt. In fact, I don't think this is even just 'about' homosexual acts. I think this is entangled with heterosexuals too. I'm just straightening out the cases and claims here, and think it's important to do exactly that.

I find the idea of forcing a photographer to take pictures of an event strange. It is even strange outside of all the legal business. Why would you want someone photographing your wedding that didn't want to be there? I guess they were just making an example of someone, but even then what a waste of time and money.

Will anyone follow up to see whether or not the photographer in question actually took the pictures in question?

Although, I also don't understand why anyone would claim a religious reason for not wanting to take pictures of a gay wedding (or whatever it was). You may think gay marriage is stupid or wrong, but I don't see where it is a sin to take pictures of one. Just say you're busy that day or you double-booked.

For nondiscrimination laws generally, the only good argument comes in the case where the discrimination in question is so widespread that the targets can't go about their normal lives in any reasonable manner. I think wedding photography fails to qualify for any part of that.

No, she didn't take them. She was fined for not doing so. I _think_ her legal help is pro bono. I don't know whether she paid the fine.

Although, I also don't understand why anyone would claim a religious reason for not wanting to take pictures of a gay wedding (or whatever it was). You may think gay marriage is stupid or wrong, but I don't see where it is a sin to take pictures of one.

A photographer isn't just a robot. The photographer of a celebratory event is supposed to be showing how beautiful and wonderful the event is. Surely you've seen some wedding photo spreads in the course of your life, haven't you? It seems to be stating only the obvious to say that wedding photos are expressive works presenting the romantic relationship of the couple in a positive light and assisting the couple in celebrating and memorializing their wedding. It's not just like turning on a surveillance camera and letting it run! Photographers put a lot of work into making their photos express emotion and cast the subjects and the connection between them in a positive light.

Just say you're busy that day or you double-booked.

Suppose the photographer thinks it's wrong to lie, and the photographer wasn't busy that day or double-booked? That's not an entirely unreasonable ethical position to take.

Of course, I agree that people can go about their normal lives if they don't have a commitment ceremony photographer. Still more if they don't have *this particular* ceremony photographer. So we agree there.

The wedding photographer also doesn't just film an actual event. He also poses the participants afterwards for further celebratory pictures.