Important Note: Improve Photography is not a partisan political tool. We're one of the largest photography communities on the web and represent photographers from all different political, religious, cultural, racial, and other backgrounds. I, Jim Harmer, am the author of this content but I spent a significant amount of time carefully writing it in the most neutral way possible. This article has zero intention of stirring up political debates or expressing my own. The goal is merely to make photographers aware of the issue and how it impacts us as human beings and photographers. I'll let you decide where you stand.
Nearly 20 U.S. States have laws on the books which claim to protect religious freedom by allowing service providers, such as photographers, to choose not to participate in events which violate their religious beliefs. Recently, Indiana and Arkansas also proposed similar measures, which was met with both vehement opposition and staunch support. Proponents of the law call it a protection of the freedom of religion, and opponents call it open-season for discrimination.
Whether you like politics or hate them, are religious, are irreligious, gay, straight… every photographer must decide where they stand on this issue. Why? Because failing to understand the law in your state, city, and country could bring massive penalties to you as a photographer. On the other side of the coin, the issue impacts many LGBT Americans and their ability to hire service providers freely and to prevent discrimination based on sexual orientation.
In short, photographers must choose between two options, which I will frame in as neutral a way as I can:
- Members of the LGBT community should be protected from discrimination from photographers who do not want to photograph their wedding on religious grounds
- Photographers should have the right to refuse to photograph an LGBT wedding if the photographer feels that doing so would be a violation of his or her moral judgment on religious grounds
Can Photographers Legally Refuse to Photograph an LGBT Wedding If It Violates Their Religion?
This is a difficult question. Very few states have fleshed this question out to give a clear answer to photographers. As an all parties on both sides of this issue, I spent a significant amount of time researching laws in each of the 50 U.S. States and made a call on each state of whether or not religious freedom would be a valid defense to refuse an LGBT wedding. Again, I am not writing in support of or opposition of either side, but merely to provide the information.
These are my personal opinions as to how the law would come down on the issue in each of the states. Again, the laws are far from clear in all but a few states.
Further, remember that this is only state law. Many cities are now enacting their own laws. For example, Bozeman Montana has a city ordinance preventing discrimination based on sexual orientation in public accommodation (which likely applies to photographers) but there is no similar state law.
Examples of Photographers and Other Service Providers Who Have Faced This Issue
- Photographer Elane Huguenin was sued by an LGBT client in New Mexico when she refused to photograph their wedding. The photographer felt that photographing the LGBT wedding would be a violation of her religious beliefs. New Mexico's human rights commission fined the photographer $6,697.34 for her refusal. The NM State Supreme Court affirmed the decision and SCOTUS denied cert.
- Sweet Cakes by Melissa was sued by an LGBT client when she refused to bake a wedding cake for the same-sex union. The issue is not fully resolved, but Oregon state law seems to favor the LGBT client. The business faces penalties of up to $150,000. This Youtube video has more information from the service provider's point of view.
- Urloved Photography in northern California was forced to shut down their business after refusing service to an LGBT couple and referring the couple to another photographer.
- A police officer in Salt Lake City was suspended when he refused to participate in a motorcycle brigade at a gay pride parade. The duty would have required the officer to participate in choreographed maneuvers to add excitement to the event, which he felt was counter to his religious beliefs.
- A Kentucky Tshirt printing business lost its battle arguing it should not have to print shirts for a gay pride parade, when the owners felt it would be a violation of their religious beliefs
- There are dozens–or hundreds–of other examples that could be included here.
What Do Religious Freedom Laws Actually Say?
Each of the 20 states which have these religious freedom (RFRA) laws write them differently. The first of its kind is a federal law called the Religious Freedom Restoration Act. The act “gave religious objectors a statutory presumptive entitlement to exemption from generally applicable laws (subject to strict scrutiny). Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest.'” (Volokh)
What does that mean? It basically means a photographer who has a religious objection to a law that prevents discrimination can be exempted from certain aspects of the law that would violate his or her religious freedom. Importantly, the federal law was in response to federal action against individuals, such as in Employment Division v. Smith (Native Americans fired from job for peyote use in religious ritual were denied unemployment from the government).
Many states have since enacted their own versions of the RFRA. Each differs in how it is applied, but few apply to conduct between private individuals. Most are protections for religious belief defenses against government actions.
The Indiana law which is so hotly contested now is slightly more reaching. It specifically states that religious objections can be used “as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.”
States with Religious Freedom Laws in Place: Alabama, Arizona, Arkansas, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia.
Understanding the Issue from Both Sides
So now is the time for your thoughts, photography community… Should photographers be legally protected from photographing an LGBT wedding if doing so would violate his or her religious beliefs?
Forcing someone to take photos of an event that they don’t condone. To me, that is telling the photographer you don’t care what they think or believe and are telling (not even asking) them to compromise what they believe in and hide behind law while doing it. I don’t believe it is a very moral, polite, or respectable thing to do at all, and are asking for photos which would most likely be below the photographer’s average quality – not as a means of defiance, but because they are not 100% comfortable with what is going on and are forced into the situation. I believe that a professional of any kind should do their best regardless, but I can imagine their work would suffer.
To me, if you are offering your services for sale, you should accept anyone who can pay for your services. Would people even argue over whether a photographer should be allowed to not shoot a mixed-race couple’s wedding because they are against “mongrelization”? Or, how many photographers turn down weddings of ugly people or people with visible handicaps because they are squicked out by having to take pictures of them?
Tim, so if a nudist couple hired you to photograph their wedding at a resort which would require you to shoot the wedding nude yourself, you shouldn’t have the ability to say “No, I’m sorry I’m not comfortable with that” just because they can pay your fees?
Keith that’s not a valid comparison …no one wants to see you nude anyway (I asked your wife) ! 🙂
Keith, I do not think that anyone would require the photographer and staff to be nude. I do not think that this conversation has anything to do with that. If that were a requirement, the photographer would absolutely have the right to say NO.
No, wait a minute. Even if the photographer wasw allowed to be clothed he/she may be uncomfortable at a nude wedding. In the case of some muslims they aren’t allowed to look at a naked woman that is not his wife, so this is obviously a good comparison. In the instance of the bakery that refused to bake the cake, the way I understand it, is that, if they sell cakes they have to sell the cakes to anybody but they don’t have to decorate the cake if there is anything that would violate their religious beliefs.
Then you would force the designer who refused to work with Melania Trump on her clothing? You would force by law Bruce Springsteen to perform those concerts in North Carolina he cancelled?
I generally side with LGBT arguments, believing that everyone should be able to love everyone else. But I would want a happy photographer at my event. Not one who is afraid of a law-suite.
Let’s look at it from a different angle. Say I was a spare ribs lover, and I wanted masses of spare ribs at my wedding. Would the vegan caterer be allowed to refuse to cook my ribs? Of course they would. If I was a nudist and required the band to perform naked, would they have to? Of course not. If my favourite colour was purple and I wanted the minister to wear purple too, would he/she have to? Or let’s say I was Jewish and I asked a Christian photographer to shoot a bar mitzvah. What then?
There are plenty of wedding photographers to choose from. If one doesn’t want to shoot your wedding – for whatever reason – then just choose another.
But things get more tricky when it’s not about a photographer but about a bank, an insurance company, a restaurant, a department store. Should they be allowed to discriminate, whatever the reason? Of course not. Where do you draw the line?
Is my freedom more important than your freedom? How on earth can that be defined by law?
I agree. I think there is also a difference between serving up a soda or a sandwich to a LGBT couple vs photographing the most intimate details of their lives. I think that there are so many amazing photographers/bakers/florists etc who thrive on doing this service for the LGBT community that it seems silly not to hire someone who is going to be your biggest advocate rather force someone to be there and be pissed off at the photographer all day long but force or them to be there based on the principle of the matter.
Jon, as a photographer and an LGBT individual myself, I’m totally with you. I don’t want a photographer working for me who isn’t comfortable with what (s)he is photographing. And I don’t want to be forced to photograph something that I’m not comfortable with. I of course don’t want LGBT individuals to be discriminated against, and I wish everyone was comfortable working with them, but that isn’t the case and there are many other photographers out there who would be thrilled to photograph their weddings (myself included).
However, my husband made an important point. Vegans, nudists, and people who love purple have all made a choice. Gay individuals have not. So while you can say to a person who loves steak “Sorry, I don’t think eating meat is ok and so I won’t be cooking any meat for you,” what you are saying to a gay person is “Sorry, I don’t think YOU are ok.” And that’s very different.
I’m still conflicted on this issue. I can clearly see both sides, and that’s rare for me in a situation like this where the general answer is so clear (be good to everyone).
Erin, may I respectfully disagree with you about the “choice” argument? Most religious people disagree that homosexuality is a genetic trait, and as far as I know, there’s nothing scientific that proves that point, but lets say for the sake of argument that there was. Even if there was definitive proof that homosexual attraction is a genetic predisposition, a religious person declining the job of photographing a gay wedding still involves a rejection of the expression of those desires as behaviors, which will always be a choice. Do you understand what I’m saying? Someone may be genetically inclined to sexually desire children (pedophilia), but most of us would tell those people that they should not act on their predispositions and desires. Most of us would also not be at all hesitant to decline to photograph the marriage of a child to an adult. (Note, I am not at all comparing homosexuality with pedophilia – I’m just using an extreme example to help you understand the force of this argument). Similarly, then, genetically predisposed or not, homosexuals still choose to act on their desires and it’s that choice that the religious person is objecting to, not the desires themselves.
Sorry, Jacky, but there’s nothing respectful about homophobia, or about comparing my identity and the people I love to pedophiles. And no, you can’t compare LGBT folks to pedophiles and then say “but I’m not comparing them to pedophiles.” That’s not how it works. As someone who actually was the victim of a pedophile, shame on you for comparing people who love each other to violent, dangerous monsters. And as there is ZERO evidence that pedophilia is genetic and TONS of evidence that being LGBT is at least partially genetic, your argument is ridiculous in addition to offensive and unkind.
I have the creative + ceremony rule. An artist or artisan should be allowed to refuse to serve or serve in a ceremony or event in creative capacity.
As far as freedom, I tend to favor negative right claims, though not always. You can research negative and positive right, as it is interesting and I can’t do it justice.
Telling a person it is against your religion or giving a similar excuse would be just inflame the situation (even in the 20 states), and will impact your business in the long run, as others have found out. In these cases providing less information is better. Take down all the details and then tell them you are unavailable,. don’t give details as to why you can’t as if they can prove this to be incorrect you are wrong.
It’s a bit like giving someone a reason as to why the did not get the job, you always just say “sorry but you are not suitable”, and never elaborate no matter what, in case it is used against you.
The problem is the activists. If they think you’re being dishonest, they’ll have someone posing as a straight couple call and try to book the date during which you just told the homosexuals you’re unavailable. That’s their “gotcha”.
Honesty is the best policy. Unfortunately “tolerance” is a one-way street these days, and since the “bigot spigot” has been turned on everybody is claiming to be offended and victims of discrimination.
Yes! Freedom of expression is not popular (except with classical liberals), mainly because it is usually said to someone who rejects your expression or worldview!
Excellent statement Jon!
I think photographers are in a unique position when it comes to this issue because they actually have to attend the wedding from start to finish. I guess I just don’t understand, when there are so many service providers, why is it necessary to destroy someone’s livelihood? When I had a photography business, I just excluded weddings from the services I provided.
I am opposed to discrimination and like Jon typically fall on the side of the LGBT community, but again, I said I’m opposed to discrimination, not just one form of it. Let’s flip the script… Say you’re a LGBT couple and you’re choosing a photographer for your big day. You rule out one in particular, not because of his/her style but specifically because he/she has indicated that their Christian beliefs preclude them from supporting the LGBT community and you’re aware of this. Now, let’s say said photographer finds out THAT is why you deleted them from consideration and sues YOU for discriminating against them. Should that photographer be allowed to force you to hire them to shoot your wedding?
I realize this scenario is a stretch, but think about it, this is just the flip of what we’re talking about here. Like Steve said, if a photographer is forced to do work they are uncomfortable with the work would surely suffer and why would you want to give your hard earned money to someone who opposes your lifestyle anyway, I wouldn’t. I’m not condoning discrimination, I just want the protection to go both ways. Should a black owned print shop be forced to print burning crosses on t-shirts for the KKK? Should a Jewish owned gift shop be forced to sell coffee cups with swastikas on them?? Stop fighting for something that isn’t really what you want (you really don’t want someone who doesn’t want to be there to shoot your wedding) just on principle. Yes, principles are important, mine certainly are to me and I respect everyone’s right to theirs. And yes I realize this issue is a slippery slope, but we need to keep the ultimate goal in mind (beautiful images of your wedding) and stop cutting of our noses to spite our face.
You can’t sue someone for not hiring your business. That would be like Burger King suing customers for going to McDonald’s.
Thank you so much for taking on this issue in a very professional manner.
One thing I have learned over the years is that we cannot legislate morality (or, as some might view it, immorality). Decisions are made, and consequences will happen, either favorably or otherwise, regardless of how the law reads.
I fear that the Pandora’s box of all this will be that people of certain faiths or beliefs will now be open to being targeted to provide a service that they do not morally believe in, not for the sake of the people seeking a service, but for seeking headlines and a lawsuit.
I hope that you personally are never put in a position where you have to make that decision, but regardless of how you choose, I will always listen to your podcasts, follow your website and Facebook page, and seek your professional guidance. I believe you’re a good man, and admire your willingness to confront such a hard issue.
My feeling is choosing what kind of work you do is your choice but it seems that clients are being surprised at the 11th hour ??
I can appreciated the value of hiring a photographer that you get along with and one who will be happy to gorgeously capture your wedding for you. However, Jon there is a difference in photographing an event and the examples you give. The LGBT couples are not requiring photographers to change their sexuality for the event. Just to take photos of an event like they would for any other couple.
Jon: in all of your hypothetical situations you are stating the business must do something different.
For example, does the caterer make ribs? In theory caterer with the vegan menu doesn’t, for anyone. But if a caterer makes ribs for heterosexual couples but won’t for homosexual ones, he’s discriminating against the homosexual couple.
In the case of photography let’s make it simple: he’s a portrait photographer. Everyone is clothed and there’s nothing inappropriate or other red herrings to distract from the issue. Simply sit on a stool and get a portrait taken.
Supporters of this law/idea think it’s appropriate for the business to deny their service on religious grounds.
Now, I understand people holding a belief that certain things are against their religion. You think homosexuality is a sin? Great, don’t engage in it. What I don’t get is how that is the basis to deny a normal business service to someone. If you’re going to deny your services to sinners guess what? Last time I checked everyone sins – therefore you shouldn’t take anyone’s business. Thank God Jesus died for our sins. Oops – unless you’re gay. I guess I missed that in the gospel.
Once upon a time it was ok for people to deny service to blacks or other minorities because they were uncomfortable with them (or worse, hated them). This really is no different.
I’m not gay. I am Christian. I fail to see how giving gay people equal rights under the law in any way negatively effects me or my relationship with God.
Can’t you deny doing a job just because? I mean what if you don’t feel like shooting the wedding just because… Simply because you are too busy already or whatever… Is that illegal too? I mean maybe I’m confused or something but if I don’t feel like shooting a wedding I’m not going to… Not because of their sexual orientation. And if they happen to be LGBT oh well… So if you deny a customer can they sue you for no reason? And what the hell is the point in getting mad because a photographer doesn’t want to work for you? Find another one.
I can appreciated the value of hiring a photographer that you get along with and one who will be happy to gorgeously capture your wedding for you. However, Jon, there is a difference in photographing an event and the examples you give. The LGBT couples are not requiring photographers to change their sexuality for the event. Just to take photos of an event like they would for any other couple.
The vegan caterer wouldn’t serve ribs because it’s not an option on her menu for anyone not just because she doesn’t want to have anything to do with your event. I think this example works to illustrate if someone asked you to spot color an image and that is not something you do for anyone not just the one asking.
Your nudist couple requiring all vendors and guests to be naked? I can’t fathom a possible way to make that a reasonable request. I wouldn’t don a costume for any other party either, though. I wear the “uniform” for the company and not a softball uniform if I’m to photograph a team.
But then again, I believe most vendors are there to provide a service they have put up for sale to the public. Providing that service does not endorse the decisions your client makes in their lives. It simply means you are good at your job and someone would like to exchange currency for you to do your job at their event.
The nudist thing is not about the photographer “being naked” or “participating” in the activities, but is about the photographer taking pictures of people naked and then being forced to treat those pictures like any other pictures. A photographer in that instance could be accused of child pornography for taking pictures of naked children and then putting them on their website or promoting them. Nudists are not necessarily trying to get that to happen, but naked pictures of young people would have to be handled very delicately and with extreme care by anyone not participating in the nudist activities. And that could be a direct parallel to other things a photographer would be forced to deal with by so called “non-discrimination” policies that would impel them to shoot a wedding or event.
I think it’s sad governments have even had to put these laws in place to protect people from law suits for their beliefs. I am not anti anything. I think we all should have the right worship whatever religion we choose, love whomever we want to love, etc. With that being said I also believe as ‘free’ country we should all have the right as business owners and human beings to agree or disagree with someone elses lifestyle choices. We should have the right to refuse services to an event we are not comfortable with whether its for religious, sexual orientation or even the context of the event period. I think the nudist wedding comparison was completely valid. You would be turning down an event that you were not comfortable with period. That is no different than turning down a lgbt wedding or a religion that differs from yours. At the end of the day it was an event you were not comfortable with or agreed with. How as a professional can you guarantee great results when you are ‘forced’ to service that event and are uncomfortable the entire time? You will never get the shots that those individuals deserved. We shouldn’t need a law to protect us from being sued, when at the end of the day I truly believe that individual who refused a service is helping that person(s) they refused to have a better experience elsewhere. Business owners will be losing a lot of business if they deny people, that is something that is a matter of fact. Their reputations will lose them business. That is their choice. If I were a lesbian I wouldn’t want a photographer who wasn’t going to give me 210% at my wedding. And I wouldn’t be suing them because they don’t want to service wedding. There are plenty of people who would do it and do it with great enthusiasm. Again I say, it’s crappy we even need this law. We live in this sue happly world lately. It’s getting out of control.
Veganism and eating meat is not a protected class. Asking a florist to provide food at an event is akin to the whole food argument and is ridiculous. A vegan baker doesn’t have meat on the menu. That has nothing to do with a protected class. Being a nudist is not a protected class either.
Saying you won’t serve someone in particular just because of their protected class is not legal. Just like it is not legal to not hire or promote someone because of a protected class. And don’t say an LGBT wedding isn’t on your menu. A wedding is a wedding.
And where do you draw the line based on your beliefs? If is a straight couple getting married but their parents are gay, are you going to refuse to take photos of the parents of the bride and groom. Or other guests that you suspect are LGBT?
And, yes, there are photographers that specialize in LGBT weddings. Just like there are ones that specialize in Indian weddings. But, the point is any consumer should be able to go to an establishment and not be turned away based on a protected class. And, like it or not, just like there are people that specifically go around looking to create lawsuits based on ADA accommodation rules, there are people that look to do this for discrimination.
The biggest issue is where LGBT status is not a protected class. What then? If it’s not a protected class how does this new (or old depending on the state) law really affect anything? Serious question I have been pondering.
Two objections I have with your point.
1) A wedding is a wedding. Yes a wedding is a wedding, but in several states same sex marriages are not legal and as the LGBT community is fervent to point out: A Civil Union is not a Wedding. So it may not legally be a wedding at all.
2) LGBT is a protected class. From what I am able to find, and please point me at the .gov correction if I an wrong, Sexual Orientation is a protected Employment class not a protected consumer class. So an employer could not deny hiring someone solely because of a persons sexual orientation. But that does not mean a person can not turn down employment solely because of sexual orientation. So in a sense by the EEOC laws that you are referring to for your protected classes; A LGBT couple could not refuse to hire a photographer because the are outspokenly religious (another “protected class”) but a photographer could refuse to work for any reason,
I’d be proud and happy to shoot any LGBT wedding (provided the bill got paid). I’m delighted that these weddings can take place. That said–I think we have to consider that not every market is chock full of people who feel the same way I do. Small towns may only have one or two photographers in them. If they are both anti-gay wedding–then that service becomes unavailable to that client. And one must realize that yes, this is a slippery slope. If people are discriminated against by photographers, then, why not by other professions (the Indiana Law seems to allow anyone to discriminate against anyone for religious reasons). Why not doctors, lawyers, restaurants, etc. and these laws don’t stop just at the gay issue; they could be extended to include discrimination against anyone perceived by someone’s religion to be unacceptable. Also understand that the Indiana law was actually written by the American Family Association which has been deemed a hate group by the Southern Poverty Law Center which should make any law unacceptable on its face.
People have a right to not be discriminated against. However, people also have a right to their opinions and beliefs. Governments should not enact laws to control the feelings and attitudes of individuals. This is a matter for the courts to decide on a case by case basis. As it is now, a photographer who does not have the time to shoot an LGBT wedding and thereby declining the business will still be at risk of prosecution for discrimination. The reason, it has become the modus operandi of individuals feeling slighted to throw out the “hater” card if they don’t get their way. It is time for everybody to put on their big “person” pants and get over it.
I have a question that I think I know the answer to. When does a photographer become professional? Is it when they are first paid for anything or is it when the photographer thinks they are good enough to charge? Neither apply to me so I do not think that I am a professional, so some of you may think that I do not have an opinion on this. I look at myself as definately an amature. However, I recently was asked to photograph a stage event. I told the person that I would love to but would not do so for money, and made it clear that I have never done this type of photography, and to not have any expectations. I would however share anything that I did and that they would have full rights to do whatever they chose with the results. What happens if the results are good enough that I would do so again for payment? At that time must I accept any request to do a professional job? I don’t think so. But what would happen if someone asked me to do a wedding, and that wedding just happened to fall within a protected class, like LGBT. Could someone say that I refused to do this because the wedding was for a LGBT couple? Lets look at it a different way. What if I was asked to do a sporting event? Unless I had done a similar event before and felt I was good enough to do it professionally, I would say no, and I would have the right to say no. I may get to the point of being able to do a wedding, but does that make me an expert in all types of weddings? Is doing a hetrosexual wedding the same as a LGBT wedding, or a nude wedding? Are there differences? Without ever being a part of a LGBT or nude wedding, I would think that there could be some differences, and being good at one does not make you good at all
All that being said, I think that all people have the right to not be discriminated against. However, why would someone hire me to do something that I was not an expert at, or even comfortable at. That is asking for trouble for all parties. Someone is going to be unhappy with something, and someone is going to believe that it is worth suing over. In my opinion, the wedding party will get what they deserve if the photographer is forced into the job.
That’s just it, they don’t want to “force them to do it”, they don’t actually want to have a photographer that doesn’t want to be there responsible for their images on such an important day. They want to punish the photographer for not wanting to do it. In which case no one wins.
Jim, Thank you for your thoughtful writing of this article. It is good to have your perspective because you have a law background and photography experience. There is no simple answer to this issue. We would think that in 2015 we would not have to have these laws or have this discussion. It would be lovely to live in a world were people were tolerant of all people…yes I wear rose colored glasses !
Great article! Thanks for taking the time to research this, it can’t be easy with things being so fluid at the moment.
FYI: noted a couple of typos. “Flushed out” instead of “fleshed out” (or was that a Freudian slip?) and “two photographers” instead of “to photographers”. Just wanted to point them out so you can edit them.
Again, thanks!