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In a recent column George Will described the plight of a family photography business that refused to accept a job photographing a same-sex commitment ceremony. The owners cited their religious beliefs as the reason. The prospective customers sued, claiming that the photography business is a public accommodation and therefore covered under antidiscrimination laws.

What makes this case particularly knotty is that both the US Constitution and a specific New Mexico statute protect the free exercise of religion.

There are a lot more angles than that: is this type of photography a protected creative act? or, since it is primarily documentary in nature, is it a conduit for the someone else’s expression? You can’t compel anyone to create something, and the U.S. Supreme Court has ruled that people cannot be compelled to be a conduit for the expressions of others. The more you look at this, the more tangled it gets.

This lawsuit has been rattling around the New Mexico court system since 2006.

As George Will points out, this is what happens when you try to regulate behavior based upon rights that often conflict. Where does the public good end and harassment begin?

Antidiscrimination laws apply to public accommodations, but what is a public accommodation? Most people would agree that an airport is a public accommodate, whereas someone’s living room is not; but there’s a whole lot of grey area in between.

  • Hotels cannot discriminate, but what about a small B&B? a widow who takes in a lodger? someone who is looking for a roommate?
  • Restaurants cannot discriminate, but what about a neighborhood block party? an open house?
  • Big stores cannot discriminate, but how big does a business have to be to fall under such regulations? what kind of business? If photography is speech, or creative expression, is changing a tire?

George Will is right: no matter how this particular case shakes out, we’re digging ourselves into a hole by trying to legislate fairness and common decency.