Thursday, April 10, 2008

Social Condemnation as a Legal Substitute

Out in New Mexico, there is a burgeoning controversy about a photography company who refused, on religious grounds, to photograph a gay commitment ceremony. The couple complained to the state's human rights commission, which found the company in violation of the state's anti-discrimination policy and ordered her to pay attorney's fees in the amount of over $6,000. Eugene Volokh, by contrast, argues that photography is a speech act, and the Commission's ruling violates the first amendment by compelling someone to engage in expression they find distasteful (akin to, say, forced salute of the flag in West Virginia v. Barnette).

The legal merits aren't what I want to focus on. Rather, it flows out of a sub-issue that sprang out of a commenter alleging that very few people "would (dare to) take the photographer's side here if she refused to photograph a mixed-race couple." Volokh responds:
I should hope that virtually all of those who support Elaine Huguenin's Free Speech Clause rights would support that hypothetical photographer's constitutional rights, too. I certainly would, just as I support the constitutional rights of many people whose views I condemn.

When someone is discriminated against, the harms of that act are twofold. First, they are denied whatever benefit or opportunity that was being putatively offered -- in this case, having this photographer take pictures of a wedding. Second, they are faced with the stark and bald assertion that they are -- from the perspective of the discriminator -- a second-class citizen, one whom is particularly unworthy of her association or services.

Both of these harms can be remedied by law or by society. Law remedies the first by mandating the performance of the service. It remedies the second by sending the message the political community does not acquiesce to the assertion of inferiority. Both of these roles are important functions of anti-discrimination law.

Of course, sometimes it is not appropriate for law to intervene. Perhaps (as might be the case in the New Mexico controversy), the discrimination is intimately connected to another important right or principle, which the state must also be respectful of. In that case, society can also provide a remedy for both of the harms of discrimination. For the first, the couple can simply find another photographer. And for the second, society's expression of outrage and dismay can also send the message that the discriminated-against party really is to be included on full and equal terms, and it is the discriminator who is the outlier.

Often times, this expression of outrage occurs in tandem with the assertion of a lack of legal jurisdiction. "I condemn what you say, but defend your right to say it," as the saying goes. Volokh also makes note of this, condemning the hypothetical racist photographer while still asserting he would defend it. The availability of this sort of social sanction is, I feel, one of the ways we rationalize the withholding of legal remedy to many victims of discrimination.

But, this assumes that social sanction is, in fact, available. And for many gay and lesbian Americans, it is not. They are in a position of extreme vulnerability compared to, say, mixed-race couples, who can count on public outrage if they are discriminated against. Hence, they are even more reliant on legal remedy than many other groups. But of course, the fact that they are relatively more marginalized (that the question of their public equality is more controversial) makes it far less likely that law actually will protect them.

I've already noted the existence of this double-bind -- that law only protects minority groups who have displayed some measure of political power -- in the context of gay Americans before. In a sense, it merely states the obvious: it sucks to be marginalized, and the more marginal you are, the suckier it is. But it is important to note the extra layer of vulnerability that certain groups face when they can't count on extra-legal statements of support and affirmation in the face of discrimination. When the response to discrimination is not "I condemn but I defend", but "I defend and they're damn right to do it, too," the harms of exclusion are amplified dramatically.

1 comment:

PG said...

This is the Boy Scouts problem: I am willing to defend the discriminatory use of the First Amendment IF the user has made plain their discrimination so that they risk social sanction prior to any lawsuit being filed. As the BSA v. Dale dissenters pointed out, the Boy Scouts had nothing in their statements of values, handbook, or assorted other pronouncements over nearly a century of existence that mentioned sexuality; indeed, it was a topic considered inappropriate for the Boy Scouts organization to entangle themselves in. Had Dale not taken his case to the Supreme Court, very few people would be aware that the BSA discriminated against homosexuals, and no social sanction could have occurred because of this lack of information. As it is, there is greater awareness than before, and the BSA is suffering the consequences: some parents look for a non-discriminatory organization for their sons to join; some cities have refused to give the BSA government aid. But none of this was happening before the lawsuit, because the BSA was not clearly stating its discriminatory stance.

Similarly, if the wedding photographer who refused to take pictures of multiracial or same-sex couples clearly stated that she took only same-race or opposite-sex photos in her public speech (e.g. in her Yellow pages ad or on her website), she would have to deal with the social sanction of those who would have used her services but are disgusted by her bigotry. But Elane Photography, judging by their website, never has publicized their anti-same sex marriage stance. Thus they did not face social sanction until someone sought to use legal means against them.

Social sanctions can function effectively only when we know about our neighbors. That's why they are much more effective in small communities than in larger ones, and why there is a growing phenomenon of Internet shaming where people work to connect an individual's name with their alleged offenses against society. When someone has been public about their discrimination, she has subjected herself to possible social sanction, and therefore qualifies for protection from legal sanctions. But if someone isn't out and proud about their discrimination -- if the same-sex couple researches the photographer and has no way to find out that they're not eligible for her services until they get the point-blank refusal from her -- then I don't see how she really has been exercising her First Amendment right with regard to what is otherwise a kind of public accommodation seemingly available to anyone who can pay.

Then again, Volokh wants to give much more protection to commercial speech than I would. "Exotic" dancing is considered a form of expressive activity, and I still would charge someone with violation of discrimination ordinances if she refused to perform a dance for someone because of his race, unless she had clearly stated elsewhere that she did not like to express herself by dancing for people of certain races. People whose expression is commercial -- bought and paid for -- generally have plenty of ways to alert the public of the nature of their business. Those who wish to avoid publicizing their discrimination thereby dodge social sanction, yet Volokh would protect them from legal sanction as well. (Keep in mind that plenty of people when faced with discrimination don't reach for a legal remedy, or even much of a social one -- they are embarrassed and keep it to themselves. Thus it can be a long time before a discriminatory commercial speaker is brought to public notice.)