What I am trying to find out is what happens when the sensitivities of two groups are in conflict. What would seem normal for me is that the following would happen. The gay couple goes to the photographer and explains what they want him to do. The photographer congratulates them for their wedding, then explains his position, that he quite likes the people he sees before him and that he has no prejudice against what they do in society, but that he cannot cooperate in the sacrament of marriage for the reasons stated above. The couple says it's a shame but that they understand his sensitivities, just like he understood theirs. They part ways and the couple goes out to look for another photographer.
That seems normal to me. But if the couple wasn't as understanding about the photographers sensitivities, could they still sue and win ?
Peter.
Peter-
That is of course what should happen in a kind and correct society - the photographer would express his or her discomfort with the task, BUT what people don't seem to be grasping is the concept of discrimination in law.
The legal system was set up to protect people's rights to "life, liberty and the pursuit of happiness". To that end, right in the US constitution, the founders placed limits on what people could do to infringe on others happiness. As in Canada and elsewhere this concept of "what could harm" people has grown to include things like sexual orientation. There are also laws to protect religious belief in both Canada and the US, and those who say the US wasn't always Christian might wish to read the Mayflower Compact (written by the Pilgrims as they stepped off the boat) which begins "In the name of God, Amen."
Thus, the courts have established what the people, through their representatives in Government have decided are grounds that one can not discriminate on. In all of North America race, religion, sex, nation of origin and place of residence are not permitted grounds. In Canada and in some (I think its 13, but I could be off) US States and some municipalities the phrase "sexual orientation" has been added to the list.
To those who say, "I think a business can serve whoever they like" - you can; with the exception of the grounds listed by your state or country as discriminatory grounds. Look at a couple of examples-
Can a bus company say nobody can wear a veil on the bus, because we want to be able to see faces? In Canada, this has been tested and the answer is no because it causes discrimination against Muslims and others who might wish to wear their facial coverings on religious grounds. Can a business say "no service to those not wearing a shirt"? Yes, they can as "not wearing a shirt" is not likely to be a religious accommodation. Can we say 'No dogs", yes, but not if they are seeing eye guide dogs. Or "no food" - OK until a diabetic walks in. We don't serve people with pink fingernails - fine, that isn't a discriminatory ground. If you say it's because they're female, you are discriminating (it's on the list - sex), but if you say no because of the fingernail paint, you're good to go, unless someone can find a religious reason for having to wear the pink fingernail polish, in which case the case would go to court over the seriousness of the claim.
The point is that society has grown to understand that businesses, as a place of public accommodation, must in general serve any and all who wish to avail themselves of the businesses services, and those services can't be withheld (denying the person the freedom and pursuit of happiness) without good solid reasons.My whole point in both these threads has been to try to help photographers understand that if you are going to refuse a job, you should be very careful why you are refusing. As you said, a frank discussion with the client is probably best, but if the client insists, and it's a listed ground, you don't have the legal choice.
Laws also change in their interpretation as the government's perceptions change, based on the will of the people, as well, so it pays to stay informed about topics like this. In Canada, there have been several cases on a Federal level where sexual orientation was ruled on as a discriminatory grounds, and it led to Canada legalizing same sex marriages. In Canada anyone denying a couple service based on sexual orientation would be breaking the law. In the US some places have listed sexual orientation as a prohibited ground, while others have not yet. So, in the US, it's still not certain in any one case how the court would rule. That's why the advice to read your State's Human Rights Act and also get legal advice about the status of legislation if you are thinking of denying service.
Hope that helps,
Bill
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http://www.billcurry.ca
