Question: When rights conflict with one another, is there a primacy of rights?[W:349

[johndylan1]

Re: Question: When rights conflict with one another, is there a primacy of rights?

My understanding is that rights are not ranked in any way. Instead, when rights conflict, the task is to find the least intrusive means of resolving the conflict, even if that means that one right takes a bigger hit.

At first blush this makes sense, after all conflict between rights are inevitable, Right? After a little contemplation though the implications of this type of thinking leaves us with no rights at all. Let me explain it this way. If we indeed have inalienable rights, they are absolute. To be absolute they must be objective not subjective. Indeed the first amendment is written in absolutist language ie. shall / shall not, leaving me to believe the founders established the amendment as an inalienable and absolute right. Now if we can determine that it must be pushed aside based on the notion of least relative harm to social norms of the time, we have a subjective standard in place which can change with the whims of the day. Not objective, not absolute.

 

[Paschendale]

Re: Question: When rights conflict with one another, is there a primacy of rights?

It pretty much always varies based on the circumstances of the situation. I would say it's less based on which rights are in conflict, and more based on how badly each party needs their right.

Also, I don't think that merely having a religious opinion on something entitles one to invoke the first amendment for special protection. It's free exercise that's protected, not the right to have everything around you work out to your religion.

 

[johndylan1]

Re: Question: When rights conflict with one another, is there a primacy of rights?

It pretty much always varies based on the circumstances of the situation. I would say it's less based on which rights are in conflict, and more based on how badly each party needs their right.

Also, I don't think that merely having a religious opinion on something entitles one to invoke the first amendment for special protection. It's free exercise that's protected, not the right to have everything around you work out to your religion.

Assuming that it isn't about conflicting rights, each party will obviously believe that they "need their right" more. So how can each parties rights be respected? Certainly it would be to allow the photographer to photograph what he wills without coercion, and allow the couple to hire a willing photographer for their event for what ever price the market bears.

 

[Fisher]

Re: Question: When rights conflict with one another, is there a primacy of rights?

It pretty much always varies based on the circumstances of the situation. I would say it's less based on which rights are in conflict, and more based on how badly each party needs their right.

Also, I don't think that merely having a religious opinion on something entitles one to invoke the first amendment for special protection. It's free exercise that's protected, not the right to have everything around you work out to your religion.

I may would have argued the case differently. Assuming they, like most photographers, retain the copyright to their product, I would try something like their Constitutional intellectual property rights would be violated just for the hell of it since I doubt the state supreme court gets a lot of IP cases grounded in the US Constitution. If nothing else, you would be throwing a possible case of first impression at them to chew on. A state Court deciding if the "exclusive right" in the copyright clause extended to content could get you a white quill pen.

 

[sangha]

Re: Question: When rights conflict with one another, is there a primacy of rights?

Assuming that it isn't about conflicting rights, each party will obviously believe that they "need their right" more. So how can each parties rights be respected? Certainly it would be to allow the photographer to photograph what he wills without coercion, and allow the couple to hire a willing photographer for their event for what ever price the market bears.

The constitution doesn't just talk about rights. It also grants the govt certain powers, among them the power to regulate commerce. There's no doubt that discrimination interferes with commerce.

 

[TiredOfLife]

Re: Question: When rights conflict with one another, is there a primacy of rights?

Assuming that it isn't about conflicting rights, each party will obviously believe that they "need their right" more. So how can each parties rights be respected? Certainly it would be to allow the photographer to photograph what he wills without coercion, and allow the couple to hire a willing photographer for their event for what ever price the market bears.

I certainly wish is was that easy, but it isn't.

 

[Henrin]

Re: Question: When rights conflict with one another, is there a primacy of rights?

I certainly wish is was that easy, but it isn't.

But in this case it is.

 

[TiredOfLife]

Re: Question: When rights conflict with one another, is there a primacy of rights?

But in this case it is.

I'm afraid that it isn't, not based on the numbers.

 

[Henrin]

Re: Question: When rights conflict with one another, is there a primacy of rights?

I'm afraid that it isn't, not based on the numbers.

What do you mean by that?

 

[TiredOfLife]

Re: Question: When rights conflict with one another, is there a primacy of rights?

What do you mean by that?

It means that they are too much in the minority to just let the market work itself out.

 

[Henrin]

Re: Question: When rights conflict with one another, is there a primacy of rights?

It means that they are too much in the minority to just let the market work itself out.

I don't see any evidence of that. There is plenty of photographers out there that will take their picture.

 

[TiredOfLife]

Re: Question: When rights conflict with one another, is there a primacy of rights?

I don't see any evidence of that. There is plenty of photographers out there that will take their picture.

In some places that is undoubtedly true, but not in many or even most. This is new ground.

 

[Henrin]

Re: Question: When rights conflict with one another, is there a primacy of rights?

In some places that is undoubtedly true, but not in many or even most. This is new ground.

So there is no gay photographers or other individuals that will take their picture in these other areas? Somehow I doubt that.

 

[TiredOfLife]

Re: Question: When rights conflict with one another, is there a primacy of rights?

So there is no gay photographers or other individuals that will take their picture in these other areas? Somehow I doubt that.

It matters very little since the court has decided, but it does help the process along. As I said, time will fix this and the courts know it.

 

[Henrin]

Re: Question: When rights conflict with one another, is there a primacy of rights?

It matters very little since the court has decided, but it does help the process along. As I said, time will fix this and the courts know it.

Is that why these laws never go away and find their way into state constitutions?

 

[TiredOfLife]

Re: Question: When rights conflict with one another, is there a primacy of rights?

Is that why these laws never go away and find their way into state constitutions?

By the time that happens society has already moved on for the most part.

 

[Paschendale]

Re: Question: When rights conflict with one another, is there a primacy of rights?

Assuming that it isn't about conflicting rights, each party will obviously believe that they "need their right" more. So how can each parties rights be respected? Certainly it would be to allow the photographer to photograph what he wills without coercion, and allow the couple to hire a willing photographer for their event for what ever price the market bears.

Well, that's pretty much what courts are for. To figure these sorts of questions out. And no, it might not be the photographer's right. If he made a contract with the couple, and is breaking it, leaving them without a photographer for their wedding, he has an obligation to fulfill that contract.

I may would have argued the case differently. Assuming they, like most photographers, retain the copyright to their product, I would try something like their Constitutional intellectual property rights would be violated just for the hell of it since I doubt the state supreme court gets a lot of IP cases grounded in the US Constitution. If nothing else, you would be throwing a possible case of first impression at them to chew on. A state Court deciding if the "exclusive right" in the copyright clause extended to content could get you a white quill pen.

As above, without knowing the exact facts of the case, it is quite likely that the photographer agreed to take pictures at the wedding, possibly received payment, and backed out. Otherwise there would be no damage and thus no cause to sue. Religious problems with homosexuality is not a defense against breach of contract. Copyright is really not an issue. It sounds like a contracts issue to me.

Freedom of religion, of course, is explicit in the First Amendment, and implicit in this is a right not to be compelled to do something which violates one's religious beliefs.

As in my previous post, no. Nothing of the sort. The first amendment guarantees that freedom to worship, not to play by special rules merely because you invoke a god to justify it. That's why Rastafarians get their pot taken away, and why Mormons can't have multiple wives. And no, it doesn't come down to a difference between using law to make someone do something vs using law to make them not do something. If your religion includes not paying taxes, you can't invoke the first amendment on April 15th.

 

[Henrin]

Re: Question: When rights conflict with one another, is there a primacy of rights?

By the time that happens society has already moved on for the most part.

Why put it into a state Constitution when the law is only meant to be temporary?

 

[TiredOfLife]

Re: Question: When rights conflict with one another, is there a primacy of rights?

Why put it into a state Constitution when the law is only meant to be temporary?

The problem will resolve itself over time but it's not temporary, it's an expansion of equality. Those we codify.

 

[Henrin]

Re: Question: When rights conflict with one another, is there a primacy of rights?

The problem will resolve itself over time but it's not temporary, it's an expansion of equality. Those we codify.

So people must forever deal with an expansion of power for the state for no reason?

 

[TiredOfLife]

Re: Question: When rights conflict with one another, is there a primacy of rights?

So people must forever deal with an expansion of power for the state for no reason?

There's always a reason. And forever? States don't last that long.

 

[Grand Mal]

Re: Question: When rights conflict with one another, is there a primacy of rights?

It should, it would be different if the couple was coming in the studio for photos, but they are asking the photographer to attend and participate in an event that they are morally and religiously objected to. That is a violation of the photographer's rights.

I agree, but I have to ask why the photographer made an issue of it instead of just declining the job because he was too busy or whatever/
Let's all just try to get along, or pretend we do.

 

[CanadaJohn]

Re: Question: When rights conflict with one another, is there a primacy of rights?

Obviously you are not familiar with all of the components of the practice of the photographers religion, neither am I. But I am aware of scriptural passages that could be interpreted to prohibit certain associations. The right of religious practice is ambiguous and would depend on conscience and interpretation of their particular objective standard. If there no other photographer in the area I could see a public accommodation argument as having some small merit, but when an individual right is violated for nor other reason than to make a social point it seems to be excessive governmental oppression upon the conscience.

I would counter by saying if you accept a business license from a secular society, you are accepting that you will serve the needs of that secular society without exception or bias. No one is forcing you to enter into business - you do that freely. If everyone were "entitled" to demand customer adherence to their religious beliefs, our society would be a total cluster****, not unlike much of the middle east.

 

[CanadaJohn]

Re: Question: When rights conflict with one another, is there a primacy of rights?

Freedom of association amongst other SOVERIEGN rights.

Again, if you accept a business license from a secular society, you must live by the laws of that secular society. Perhaps the photographer should have advertised his bigotry on his flyers and front door so that unwelcomed customers could be forewarned before they enter his business and get insulted by him.

 

[CanadaJohn]

Re: Question: When rights conflict with one another, is there a primacy of rights?

That is why I say it would be one thing if the couple came into the studio for shots, it is a totally different thing to require a photographer to attend an event and participate in that event that is blatantly against their religious and moral values.

He wasn't a "participant", he was a chronicler. To follow your logic, no religious person would ever be able to research and write a book about sin because to do so would be blatantly against their religious and moral values.

Ask yourself, are you less a man of religion because you participate in DP discussions with people of whom some are gay, some are adulterers, some are theives, some are pre-marital fornicators, etc.? Are you less a religious man because your church welcomes all these people into their services while you're praying to your God? If your job isn't "sinful" doing it for people who might be considered sinful in your religion doesn't make you equally sinful.