Art Speaks

Since last year’s New Mexico Appeals Court ruling that photographers refusing to shoot same sex wedding ceremonies are discriminating illegally against homosexual couples, I have seen quite a vibrant debate on what constitutes artistic freedom and how that applies to photography for hire. I have struggled with my own thoughts on this issue and, after much wrestling, I’ve come to a position that I think is both right and defensible which I will elaborate on below.

This issue is difficult because on the surface it feels like a simple civil rights issue. However, I think it is more nuanced than that. To me the question is this: can an artist be legally compelled to produce work that is antithetical to their core beliefs? When the artist’s prerogative is in conflict with civil rights, which governs?

The Artist’s Prerogative

“There are always two people in every picture: the photographer and the viewer.”

- Ansel Adams

Photography is special within service professions[1] because the client is also the subject. Compelling a photographer to take on a client is also dictating to the photographer their subject matter — both in terms of persons and themes. Having the government dictate where photographers point their lens just doesn’t sit well with me.

In the New Mexico case, the issue isn’t that it is a lesbian couple. Rather, it is that the couple’s homosexuality is precisely the focus of the creative work. And that, to me, is exactly the point. It has taken awhile for me to arrive at a justification for why I feel the ruling was wrong, but after much thought I have reduced my position to two simple words:

Art speaks.

Let me explain. If art has meaning beyond being just a pretty picture, I don’t see how you can reconcile this as just a civil rights issue. It seems to me that the photographer’s first amendment right, by which I mean their right to control the message their art[2] conveys, is in direct conflict with the couple’s civil rights. When the two are in conflict, I think that the first amendment has to govern as it is the more basic. A person should never be compelled to speak[3] against their own conscience regardless of the validity of their beliefs.

I think it is important to remember this can play out both ways[4]. What if a church representative contacts a commercial photographer to shoot a campaign? The photographer agrees to discuss the project and through the course of the discussions comes to the realization that this person represents the Westboro Baptist Church and the subject of the campaign is to spread this church’s message that all of America’s problems are punishment for its acceptance of homosexuality. The photographer, for good reason, decides he doesn’t want his work associated with such hateful propaganda and respectfully declines the commission citing personal issues with the church’s beliefs. Should this photographer be subject to civil rights litigation because he is discriminating based on religious creed?

Or let’s back away from the lightning rod issue of homosexuality. What if a man contacts his local boudoir photographer to inquire about getting some shots of himself for his wife? This particular photographer informs him that she only shoots women and isn’t comfortable doing this type of shoot with a man. She suggests that he look elsewhere. Should this photographer be subject to a civil rights suit due to her discrimination against men?

I think the answer to both questions is no. Yes, this is a civil rights issue. But it is also a first amendment issue for the photographer. And when the two rights are in conflict it seems the more basic of the two should be upheld.

I guess I fall on the side of defending the creative prerogative of the artist to accept or decline a commission for any reason — no matter how repugnant that reason may be. Because the work is so personal — so reflective of the artist — and because it carries the artist’s voice, I think that personal beliefs should be allowed to dictate whether a commission is accepted or declined. The artist’s prerogative must be paramount for the artist to retain the integrity of their personhood, that which is fundamental to their being — their own conscience. Retaining the integrity of one’s personhood seems to me to be the most fundamental of American rights.

  1. I have seen several analogies to other service professions (doctors, architects, florists, caterers, etc) come up in online discussions yet none of those industries have the unique condition of the client/subject being one and the same. An architect, florist, or caterer can provide service to someone regardless of any difference in beliefs. For example, a racist architect can design a home for a mixed race couple because the couple’s ethnicity is not the focus of the creative work. Likewise, a homophobic florist can provide flowers for a same sex wedding because the sexual orientation of the couple has nothing to do with the creative work of arranging flowers. But a photographer’s circumstance is different because those disagreements become the subject of their creative effort.  ↩
  2. The ambiguity of what constitutes “art” is admittedly the achilles heal of this argument. Some have suggested that photography for hire, such as wedding photography, is more service than art. However, I think this line of thinking discounts the creative effort such photography requires. If the wedding photographer is reduced to just technician and documentarian, what explains the difference between the $500 photographer and the $20,000 photographer? Surely it isn’t $19,500 worth of services and goods. No, the strength of the photographer’s artistic voice is precisely what differentiates them from other photographers. To diminish the artistic nature of their work does a great disservice to the entire profession and ignores the fact that the most basic role of the photographer, particularly the wedding photographer, is that of storyteller. Crafting a narrative that tells the story of the day within the context of universal themes of love, joy, fulfillment, and happiness is most certainly art.  ↩
  3. A common refrain among artists is the notion that “my art is my voice”. In fact, photographers are often hired by the strength of their artistic voice — after all the photographer’s primary job is to convey a message through their images. Coercing someone to produce artistic work that represents a message contrary to their core belief is tantamount to forcing words out of their lips.  ↩
  4. There are probably many more examples and analogies one could come up with to support this position. That is exactly the point. This position allows for the unique circumstances of each of those potential examples. In order to maintain some semblance of brevity, I have limited myself to just two examples.  ↩

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Reader Comments (6)

I was a wedding photographer for years before settling on design and I fully appreciate the technician vs. artist debate and largely favor the notion that wedding photography is art. Sure, the level/quality of art is part of what makes the difference between a $500 and a $20,000 photographer (I'd say it's more the understanding of ones own value in pricing, but that's not the point here). But despite how intimately precious the act of creating wedding photography art is to us as professionals, we are still hired for the service. Wedding photography is, at its most fundamental level, a technical service provided to clients.
It is unlawful, discriminatory and disgusting to refuse services to a gay couple because they are homosexuals, just as it's unlawful, discriminatory and disgusting to refuse services to an interracial couple because they're an interracial couple. That's black and white. No, photography doesn't get a pass because it's artistic.
Most importantly, homosexuality is not the focus of a gay wedding. Love is the focus of a gay wedding, as in any other. That is the most egregious mistake in your argument.

March 12, 2014 at 5:28 PM | Unregistered CommenterJeff Paul

Jeff - Thanks for your comment. Your point about love being the focus rather than the couple's sexuality is well taken. You are right - this was an egregious mistake in wording on my part. I also agree that any discrimination is disgusting and repugnant. However I think the government forcing an individual to speak against their own conscience is also repugnant. As one's self expression is more basic than receipt of professional services, I still have to side with the artist's prerogative.

March 12, 2014 at 7:26 PM | Registered CommenterGregory Jones

I love to bake. It's a hobby that occupy my hands, where I get to show some flourish and provide a very fleeting happiness to those who consume my work. Sometimes I sell them and sometimes I'm a more successful baker than a photographer. What if I were to go into business and refuse to bake for a same-sex wedding (not that I would refuse)? I feel the opinion the opinion would be "no, I can't refuse on those grounds". Could I argue that the culinary arts should be exempt? Yes, but I hope I'd fail. I feel the key distinction is the cake as a vehicle for an art form (cake design) is secondary to its purpose as a cake. I feel the same with wedding photography.

Art is creative self-expression. Wedding photography is creative, but it is not fundamentally self-expressive but other-expressive. The goal of the photographer is to reify (make solid) the experience of that day. This is a craft. It documents much more than it creates and is primarily functional, to document, trigger memory, and communicate. It is informed by art and may have a layer of artistry on it, but the wedding photographer's work is not fundamentally artistic. If you don't agree with me, where would you put the line? The caterer can't say no but the person who sculpted the ice swan can? Or can the caterer say menu selection is an art that reflects the couple? Ah, but the couple selects the menu, yes but when I meet with a couple we coordinate a shot list. I feel the difference, if it is there, is very slight and in my opinion, not actually there.

March 12, 2014 at 10:55 PM | Unregistered CommenterTerry Robinson

Terry - Your comment certainly illustrates the "greyness" of the issue. I agree the distinction is minimal but I do believe it is there. As I said in the post, photography is unique in that the client is also the subject. The culinary arts do not typically have that characteristic and therefore I don't think this argument applies. As for the ice sculptor, I also don't think he/she has any grounds to refuse unless the subject of the actual sculpture goes against their beliefs. The sculptor is actually a particularly good example of my position because the client and subject have become separated. He/she wouldn't be refusing because of the client's sexuality but because the nature of the work is antithetical to their personal sensibilities. ("I don't sculpt x" is different than "I don't sculpt for x type of people".) Again, photography is tough because the subject and client are the same.

I appreciate your comment and I can certainly appreciate your perspective. I think the issue is quite muddled and grey but I have to remain (just barely) on the side of the artist's prerogative.

March 13, 2014 at 6:31 AM | Registered CommenterGregory Jones

Hi Gregory. First, thanks for responding to these comments because this is a debate worth having.
Your response to Terry's comment makes your position more weak. As you say, a photographer's work is different because the photog can't separate the client and subject. If we follow that logic, a photographer saying "I don't shoot x" is exactly the same as saying "I don't shoot for x type of people." You simply cannot say "I don't shoot for gays." You can't.

March 13, 2014 at 10:54 AM | Unregistered CommenterJeff Paul

Hi Jeff. First I must apologize for your second comment getting stuck awaiting moderation as my system somehow flagged it as spam (which it obviously is not). I didn't catch it until today.

I agree that this is a debate worth having and fully recognize I am probably on the less popular and harder to defend side. My response to Terry intentionally made my position weaker as I wanted to narrow the range of scenarios in which it could be used. In my mind, the connectedness of subject and client is exactly what makes this issue grey. It is very clearly a violation of civil rights. But, my position is that, in the narrow scope of the artist defining how their art speaks in their voice, civil rights must be subservient to the right of an individual to not "say" something they don't want to say.

I fully understand that my position allows for all sorts of repugnant outcomes. However it gives freedom from other equally repugnant situations - see my example of the commercial photographer refusing to shoot a campaign for the Westboro Baptist Church. To push that example even further, what if the photographer were gay? Should a gay photographer be compelled by law to shoot an anti-gay campaign in order to avoid civil rights litigation based on religious discrimination? I say no. But if the law forces a wedding photographer to shoot gay weddings it must also force commercial photographers to shoot campaigns for religious organizations they don't agree with.

"I don't shoot for gays" is certainly a disgusting stance to take. I am not trying to defend that position at all. However, I don't think it is right for the law to step in a compel the photographer. I do think it quite appropriate for society to step in and use social pressure to activate positive change in such situations.

I guess it comes down to which right you believe is more fundamental - the right to not be discriminated against or the right to not speak a message you don't believe in. I fall on the side of the artist as I believe staying true to one's own conscience is more basic. You seem to fall on the side of the civil rights. I think that it is ok for us to disagree and I understand and respect your position.

March 16, 2014 at 9:41 AM | Registered CommenterGregory Jones

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