Is everyone who opposes gay marriage a bigot? If a photographer declines to participate in a same-sex wedding, should she be held legally liable, on that basis alone, for discrimination?
I don’t think so. Over the past several days, I’ve been following a lively exchange on this topic between Ross Douthat of the New York Times, Mark Joseph Stern of Slate, and Conor Friedersdorf of the Atlantic. I like all three of these writers. I was a best man at a same-sex wedding 23 years ago, and I was a fan of gay marriage even before that. But I’m disturbed by what I see today. We’re stereotyping and vilifying opponents of gay marriage the way we’ve seen gay people stereotyped and vilified. This is a deeply personal moral issue. To get it right, we need more than justice. We need humanity.
The exchange began on Sunday, with Douthat’s column about proprietors who decline, on religious grounds, to participate in same-sex weddings. On Monday, Stern denounced these proprietors—“that infamous trio: a florist, a photographer, and a baker, who claimed their Christianity required that they deny service to gay couples.” Criticizing these and other “bigots,” Stern asserted that “their ‘dissent’ is a hatred of gay people so vehement that they’ll violate non-discrimination laws just to make sure they never, ever have to provide a gay person with a basic service.”
On Wednesday, Friedersdorf challenged Stern’s characterization of the dissenters. Friedersdorf quoted from the photographer’s petition to the U.S. Supreme Court, which gave her account of the events leading to her conviction for discrimination. The email exchange between the photographer, Elaine Huguenin, and the prospective lesbian client, Vanessa Willock, didn’t seem hateful:
[From Willock] We are researching potential photographers for our commitment ceremony on September 15, 2007 in Taos, NM. This is a same-gender ceremony. If you are open to helping us celebrate our day we’d like to receive pricing information.
[From Huguenin] Hello Vanessa, As a company, we photograph traditional weddings, engagements, seniors, and several other things such as political photographs and singer’s portfolios.
[From Willock] Hi Elaine,
Thanks for your response below of September 21, 2006. I’m a bit confused, however, by the wording of your response. Are you saying that your company does not offer your photography services to same-sex couples?
[From Huguenin] Hello Vanessa,
Sorry if our last response was a confusing one. Yes, you are correct in saying we do not photograph same-sex weddings, but again, thanks for checking out our site! Have a great day.
Friedersdorf went on to quote the New Mexico Human Rights Commission, which found Huguenin guilty of discrimination: “Ms. Willock thought that Ms. Elaine Huguenin’s response was an expression of hatred.” Friedersdorf didn’t see hatred in Huguenin’s words. He also pointed out that according to her petition,
the Huguenins’ photography business does serve gay and lesbian clients, just not same-sex weddings. Insofar as a photographer can distinguish between discriminating against a class of client and a type of event—there is, perhaps, a limit—their business does so: “The Huguenins gladly serve gays and lesbians—by, for example, providing them with portrait photography—whenever doing so would not require them to create expression conveying messages that conflict with their religious beliefs.”
To me, that’s a prima facie case that Huguenin’s decision wasn’t driven by hatred or by animus against gay people. Stern disagrees. Yesterday in Slate, he wrote that “when Huguenin refused to serve a gay couple because they are a gay couple, she was being homophobic.” He added that “the ultimate effect of her actions is the same as if she had placed a sign on her shop door stating ‘No Gay Couples Served Here.’”
On the evidence we have, this description of Huguenin’s motives and effects is inaccurate. She claims that she and her husband, who share the photography business, “gladly serve gays and lesbians.” Is there any evidence of a case in which a gay couple came to the Huguenins for any service other than a marital commitment ceremony and was turned away? We also have, in the quoted emails, no evidence strong enough to support Stern’s suggestion that her response “arises from the same place as any kind of bigotry: hate, fear, ignorance, or whatever base emotions lead a person to believe that some humans are less worthy than others.”
It’s true that Huguenin is drawing a distinction between gay and straight couples. But she’s also drawing a distinction between portraiture and weddings. In analyzing her motives and effects, we have to consider both distinctions.
Why does Stern attribute bigotry to Huguenin? On this point, he’s quite clear. He doesn’t base it on a precise assessment of her case. He infers it from an equation. He disputes the very idea that “there are reasons other than homophobia that explain why a business owner might refuse service to gay people.” To support this claim, he invokes science:
[M]y Outward colleague Nathaniel Frank wrote a wonderful article in the Atlantic just last month exploring the research into the impulses behind homophobia. Most psychologists define homophobia as having “some level of emotional discomfort around homosexuality,” and many have found that anti-gay animus is almost always provoked by irrational disgust, complemented by fear and repugnance. In numerous studies, subjects with varying levels of anti-gay animus have been found to share this basic impulse of disgust toward gay people; it’s a seemingly universal quality in those who oppose gay rights. I do not think it is prejudiced or ignorant to believe that it was a form of this disgust that drove Huguenin to turn away Willock’s business …
But none of this research warrants a generalization that would encompass Huguenin. The studies about disgust sensitivity, for instance, involved samples of 44 and 82 college students, and they covered scenarios such as public French kissing and pictures of same-sex couples. (One study included “cake topper” wedding figures, but no findings particular to those figures were reported.) You can use such research to analyze the nature of homophobia. But you can’t use it to attribute homophobia to somebody whose reactions to same-sex couples, in contexts other than a wedding or commitment ceremony, haven’t been measured or even described.
In the Atlantic article, Frank summarized additional research:
Using a process called Implicit Association Tests, Yale’s Paul Bloom and his colleagues documented a gap between how people say they feel about gays and how they actually feel. Researchers at the Yale Cultural Cognition Project dug deeper, exploring the role of rationalizations against same-sex parenting. Most opponents of gay parenting claimed their position was based on concern for the well-being of children raised by gay couples. But when given convincing evidence that kids with gay parents fare as well as others, very few changed their minds.
Those findings are illuminating. They show how stubbornly we sometimes cling to stereotypes in the face of contrary evidence. Maybe Huguenin has stereotypes about gay couples. Maybe, after enough experience with them, she’ll surrender those stereotypes.
But maybe the rest of us need to broaden our experience, too. Maybe we need to talk to people who accept homosexuality as an orientation but believe marriage should be reserved for couples capable of procreation, at least in theory. Or maybe we just need to take the self-description of a Christian photographer as seriously as we would take the self-description of a gay friend.