For the last week, several writers with diverse views on gay marriage—Ross Douthat, Mark Stern, Conor Friedersdorf, Henry Farrell, Rod Dreher, Damon Linker, and others—have been debating the case of Elaine and Jon Huguenin, the New Mexico photographers who were found guilty of discrimination for refusing to take pictures of a same-sex commitment ceremony. On Friday I joined the debate on Friedersdorf’s side, arguing that the email exchange in which Elaine Huguenin declined to photograph the ceremony showed no ill will.
Huguenin said she had no problem photographing gay clients; she just couldn’t participate in a same-sex marital ceremony, since marriage, in her view, could only be between a man and a woman. I disagree with that view. But because her policy was not anti-gay beyond the context of marriage, I concluded that it was not inherently bigoted.
But I didn’t feel comfortable with the limited information we had about the Huguenins. To me, the most important thing in a case like this one is to grapple with the real-life complexity of the story. So I asked the lawyers in the case for a transcript of the 2008 hearing in which the Huguenins explained themselves to the New Mexico Human Rights Commission.
Last night I read the transcript. It taught me something interesting: The Huguenins might not be entirely on the same page.
Both spouses say their opposition to same-sex marriage is based on the Bible. Jon quotes Matthew 19:4 and Genesis 2:24, which say a man shall leave his father and mother and be joined to his wife. Those verses are specific to marriage. Jon doesn’t quote Leviticus 20:13, which says it’s an abomination for a man to have sex with another man. But if his objection to gay marriage is based on this kind of Bible-reading, it’s highly plausible that it extends to homosexual behavior in general.
Elaine doesn’t quote Scripture. She just cites the Bible as her basis for believing “that marriage is between one man and one woman.” And she distinguishes between gay relationships and gay marriage. At one point, her attorney, Jordan Lorence, reads from the 2006 email exchange in which she declined a request from the plaintiff, Vanessa Willock, to photograph Willock’s lesbian commitment ceremony. Lorence notes that Willock asked Elaine Huguenin, “Are you saying that your company does not offer your photography services to same-sex couples?” In her email reply, Huguenin rephrased the question: “Yes, you are correct in saying we do not photograph same-sex weddings.”
In the hearing, Lorence asks Huguenin, “Why did you put it that way?” She responds:
I just felt like I needed to rephrase it, because the original was to “same-sex couples.” But, you know, if somebody has a same-sex preference, like a same-sex sexual orientation, then, you know—again, I don’t have a problem, you know, shooting portraits, whatever. But it’s just the … the weddings, the messaging-the-wedding-has part of it, I declined.
Willock’s attorney, Julia Sakura, cross-examines Huguenin:
Q: So, in this email, you declined your services to Ms. Willock. Is that correct?
A: Yes, correct.
Q: And you did so because it was a same-sex relationship, is that correct?
A: No. For a same-sex wedding.
Maybe Elaine Huguenin would refuse to photograph a gay couple in a nonmarital context. But at no point in the hearing does she say that. Again and again, she confines her objections to marriage.
That’s not true of Jon Huguenin. Under Sakura’s cross-examination, he goes further:
Q: You just testified that … [y]ou would take a picture of two women from a different country if they were very heterosexual-looking. Is that correct?
A: Not [heterosexual]-looking. I said we wouldn’t take a picture, regardless of their sexual preference, if the image implied that, you know, if they were holding hands or showing affection and implying that something other than one woman and one man in marriage is okay. …
Q: I believe your example was two women from a different country, if they were heterosexual—you used that term—and they were holding hands, you would take that picture.
A: We would not take that picture.
Q: You would not? Why is that?
A: Because the message of the picture communicates—regardless of the sexual orientation of the people in the photo—the message of that communicates something other than what we believe marriage should be. …
Q: What you’re saying is, even outside the context of a traditional wedding, if it were merely two women holding hands, and it did not convey a message that you believed, then you would not take that picture? Is that correct? … What you’re saying is, just two women holding hands, you would not take that picture, because it may convey a message that you do not believe in, even if that picture was just two women holding hands?
A: I can’t answer you absolutely … but if that picture was taken, and the message could be construed or conveyed—or we felt it was being conveyed—as support for anything other than one woman and one man in marriage, then we would not take that photo.
Throughout this exchange, Sakura is pretty clear that she’s not talking about a wedding photo. She’s talking about two women holding hands outside that context. And Jon Huguenin’s answer is that he wouldn’t take the picture “if they were holding hands or showing affection and implying that something other than one woman and one man in marriage is okay.” He wouldn’t take any picture if “the message could be construed or conveyed” as supporting gay marriage.
If I understand him correctly, Jon Huguenin is saying that any overt display of homosexual affection could be construed as endorsing same-sex marriage, and therefore he reserves the right to refuse to photograph any such display.
From my reading of the transcript, I wouldn’t call the Huguenins bigoted or hateful. But they’re certainly ignorant—they refer to homosexuality as a preference, lifestyle, and choice—and their ignorance seems to explain their misguided belief that gay marriage is some kind of cultural illness that can be managed by sending the right “messages.”
The more acute problem, legally, is that Jon Huguenin’s claims go well beyond Elaine’s. In the name of avoiding anything that could be perceived as promoting same-sex marriage, he seems to be asserting a right not to take any picture of a gay couple being gay. Imagine a photographer telling you that he’ll do your portrait but won’t take a picture of you doing anything heterosexual: no kissing, hugging, holding hands, or even meaningful glances. That’s more than a doctrine of marriage. It’s a denial of who you are.
Elaine Huguenin’s position, noxious as it is to many people, can be accommodated in a decent society. I’m not so sure the same is true of her husband’s. Refusing to photograph someone with the person she loves—indeed, with anyone she might love, given her orientation—is oppressively broad. It’s suffocating. It rejects too much of her, too much of what she can’t change. If the Huguenins recognized homosexuality for what it is—an orientation, not a choice—they’d understand that.