The New Mexico Supreme Court ruled yesterday that a photography studio violated the the New Mexico Human Rights Act (NMHRA) by refusing to photograph a same-sex wedding. Vanessa Willock was told that Elane Photography had a moral objection to her gay wedding and sued under the act, which “prohibits a public accommodation from refusing to offer its services to a person based on that person’s sexual orientation.” The case is the latest in a growing number of such conflicts between religious beliefs and anti-discrimination laws. Because this is an expressive activity, it raises some difficult questions under the first amendment rights of the owners of Elane Photography, Jonathan and Elaine Huguenin. As one justice noted in concurrence, this is “the price of citizenship.” However, there remains the question of the right of citizens not to be forced to express ideas or values with which they disagree. That concern rests on a distinction between an expressive activity like photography and a cab or a movie theater in public accommodation.
The decision is well-written and well-conceived. I particularly like the part of the concurring opinion by Justice Richard C. Bosson, writing in concurrence, where he states that the case “teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less.” I happen to agree with that sentiment. However, I remain concerned over the impact on first amendment rights.
The Court made a reasonable distinction between the Huguenin’s conduct as opposed to their beliefs. The law governs conduct in public accommodation. Thus, “in the “world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different.”
The New Mexico Human Rights Council ordered Elane Photography to pay Willock $6,637.94 in attorneys fees and costs after finding a violation of the law.
The Court takes on the first amendment issues directly. The Court drew a compelling comparison to the Supreme Court decision against law schools who had refused to permit military recruiters to participate in their recruitment or placement activities:
Elane Photography’s argument here is more analogous to the claims raised by the law schools in Rumsfeld. In that case, a federal law made universities’ federal funding contingent on the universities allowing military recruiters access to university facilities and services on the same basis as other, non-military recruiters. 547 U.S. at 52-53. A group of law schools that objected to the ban on gays in the military challenged the law on a number of constitutional grounds, including that the law in question compelled them to speak the government’s message. Id. at 52, 53, 61-62. In order to assist the military recruiters, schools had to provide services that involved speech, “suchas sending e-mails and distributing flyers.” Id. at 60.The United States Supreme Court held that this requirement did not constitute compelled speech. Id. at 62. The Court observed that the federal law “neither limits what law schools may say nor requires them to say anything.” Id. at 60. Schools were compelled only to provide the type of speech-related services to military recruiters that they provided to non-military recruiters. Id. at 62. “There [was] nothing . . . approaching a Government-mandated pledge or motto that the school [had to] endorse.”
The problem is that a photographer does more than offer a facility. He uses an interpretive skill and art form to frame an event. This is more akin to a writer or painter as an expressive form. Of course, the problem is that many forms of public accommodation could claim expressive components from bakers to tailors. The Court has drawn a line at the government requiring newspapers or publications to carry opposing views. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 244 (1974) (invalidating Florida’s “‘right of reply’” statute);
Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1, 4, 20-21, 26 (1986) (plurality opinion) (holding unconstitutional an order to allow a third-party group to send out message with a utility’s billing statements). In one such case, Hurley v. Irish- Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995) where it ruled that a parade could exclude a gay rights groups rather than force it to include an expressive component in its banner and advocacy.
The Court again draws a compelling distinction:
“Elane Photography does not routinely publish for or display its wedding photographs to the public. Instead, it creates an album for each customer and posts the photographs on a password-protected website for the customers and their friends and family to view. Whatever message Elane Photography’s photographs may express, they express that message only to the clients and their loved ones, not to the public.”
Yet, a photographer does not simply produce robotic or reflective images. They interact with subjects of their photos and arrange scenes to capture the essence of an event. For that reason, I was not convinced that photographs of this kind are solely the expression of the couple and not the photographer.
My concern is with the speech as opposed to the association. While the couple argued that third parties could conclude that their pictures show approval of same-sex relationships, the Court correctly notes that “They may . . . post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” Yet, I wonder if such statements could be challenged next as creating a hostile environment.
In the end, I remain torn by this ruling. I see the logic and the precedent for the decision. However, I have lingering discomfort with a required expressive act like photography. It is in my view a close question and I would love to read the thoughts of our blog on the issues. There may be no way to accommodate such expressive rights in a public accommodation law. However, that would require deeply religious businesses to either shutdown or engage in ceremonies that they find morally objectionable. It is a tough call despite my long-standing support for same-sex marriage and gay rights. What do you think?
Here is the opinion: sc33687
I don’t understand why the photographer cannot just say ‘I don’t think I would be a good choice for a same-sex marriage. Can I recommend …’
Obviously that is not what they said, but would that still leave one open to similar lawsuits?
I never used the child care providers I sued, once they made their bigotry known. But I very much enjoyed taking their money and forcing them to change their policies. I even got a spot on the evening news about the YMCA. I’m betting I caused them more trouble than caring for my sweet child would caused them.
Like a guy on twitter just told me: if Michaelangelo had a public artistry business in New Mexico, after painting the Sistine Chapel, by law he would have to do the same for the Church of Satan if they solicited him to do so.
This is a difficult question, but for certain kinds of business, it does make sense to give the owner some latitude on refusing some customers.
Here is an hypothetical: I am a painter that has a studio, clients come to me to have portraits painted and I specialize in (tasteful!) nude portraiture. Said portraits will be for the client’s homes and not public display. Because of personal reasons (could be moral, could be religious, could be legal), I refuse to paint portraits of the opposite (or same) gender.
Does this ruling now force me to create such portraits?
Of course, as a business owner, it behooves one to find solutions to such problems involving the business as an entity and the owner as a person.
I agree that the handling by the business could have been better. a pretextual conflict can be an out. An easier out for the photographer is the typical “substitution” clause in most photo contract, where an alternate photographer can be used.
If the studio had accepted the job, but subcontracted it to another photographer (assuming the appropriate clause is in the contract), then this would have been a different question for the courts.
Thus opening yourself to a lawsuit for breach of contract, Sqweakly.
Nobody ever said bigotry leads to smart decisions.
What about the backlash gays are going to get for forcing people to interact with them? Yeah, that’s tolerance, isn’t it. If I was a photographer and was forced by law to photograph some gay guys getting married, I would simply go into non-violent protest mode, (also known as passive-aggressiveness) and screw up all the photographs. Take a lot of pictures of their feet and “below the waist” shots and their rear ends. Show up in a Wal-Mart “precious moments” t-shirt, in my Daisy Dukes, with cowboy boots and hat, have a bunch of garlic and onions on my breath, and eat some chili with lots of beans about an hour before showing up. Maybe even have about 3 or 4 shots of Jack Daniels so that I would be teetering on the edge of “mean drunk” range. Instead of “cheese”, I would tell them, like Bruce Willis, “Now, say Yippee Ki Yay, Mother F_____’s!” That’s what I would do.
Squeeky Fromm
Girl Reporter
In accordance with this ruling, Christian photography companies in New Mexico, such as Elane Photography, are now required to photograph Satanic rituals if they are solicited to do so because state law also forbids discrimination based on religion.
If the legal reasoning behind this ruling were applied in Washington D.C., a Jewish or African-American photography company in the District would be required to photograph a National Socialist Movement rally if they were solicited to do so because, unlike New Mexico, D.C. law also forbids discrimination based on political affiliation.
This is leading us down a rabbit hole.
nick,
And I was saying your non-lawyer opinion was barking up a legally right tree.
Relax.
Have a Bud. 😀
Avoid the ER.
This issue is admittedly ticklish. However, as the parent of a severely disabled child, I have had to sue on two occasions because of discrimination against my son. The first time, he was kicked out of his daycare a few days after he got diagnosed with autism at age two. He had been in this facility since he was ten weeks old. Nothing had changed in his behavior. The director just said, “You need to find another place for P. He needs to be with other kids like him.” Same thing happened with the YMCA’s after school program at my son’s public school, three years later. After telling me there were plenty of openings, when I mentioned my son had autism, the director said, “Oh. All special needs students are put on a waiting list.” I sued after he had been on the list for more than a year.
Sorry. It’s the price of doing business. You don’t get to pick and choose your customers.
Gene, I agree w/ what you said. I know a lot about the law, but I am not an attorney. Dealing w/ litigation, I would see the facts being more important than the law many times. No matter how many cases I worked, it would confound my pragmatic brain to see so many conflicts that could have been solved prior to litigation so easily. I expect the attorneys to give their expert opinions on this because that’s what is called for on this post. I just gave my non expert opinion.
Would the logic and result be the same if all the facts were the same except the couple getting married were a white woman and a black man, or a black woman and black man?
Or if the photographer was a black woman who refused to photo a white couple, man and woman?
What about a protestant photographer refusing to do a catholic wedding?
It’s not against the law to be stupid, nick.
What you are non-lawyer dancing around is that very legal issue I just mentioned; public accommodation and open offer. The for hire services of a photographer are considerably different in nature as a contractual proposition than say a restaurant or motel open to the public in a way that constitutes an open offer to contract for goods and/or services. Yeah, the smart thing would have been to beg off for a false reason, which ironically enough would have been the “PC” thing to do as well, but these kinds of cases do give a chance for judicial review of technical questions that even when they are only partially resolved provide a chance for a higher resolution understanding and refinement of areas of law that are either nebulous or unexplored.
My non attorney take on this is which way do you lean. Do you lean toward the an individuals right to conduct their business as they see fit? Or do you lean toward the rights of the couple who want their wedding photographed. I lean toward the right of an individual to say, “No thanks.” Also being a non attorney, I see how this could have been handled more intelligently. The photographer could have simply said, “I’m sorry, I have a conflict on the day of your wedding. I’m scheduled for two other that day. May I give you the name of some other good photographers?” It would save a lot of attorney fees. I also lean toward smart, rather than ideological.
I’ve got to agree with you 100% on this one, Prof. It’s a bit of briar patch. Plus, because of the private offering in contracts such as these, I’m uncomfortable with the notion of what is essentially forced acceptance. Consider the baker example. There is a big difference between a baker who runs a shop open to the public (as seen everywhere) and a specialty baker operating by contract even though they have a public face but not a public facility (like the woman hired to make my wedding cake). Public accommodation and open offer makes a difference.
This isn’t an easy call at all.
Hence Rand Paul’s objections to one part of the federal civil rights act of 1964:
“There are ten different titles to the Civil Rights Act and nine of ten deal with public institutions and one that deals with private institutions and had I been around I would have tried to modify that. …When you support nine of ten things in a good piece of legislation do you vote for it or against it and sometimes those are difficult situations. …I do defend and believe that the government should not be involved with institutional racism or discrimination or segregation in schools, busing, all those things. But had I been there, there would have been some discussion over one of the titles of the civil rights and I think that’s a valid point, and still a valid discussion, because the thing is, if we want to harbor in on private businesses and their policies, then you have to have the discussion about: do you want to abridge the First Amendment as well? …I really think that discrimination and racism is a horrible thing. And I don’t want any form of it in our government, in our public sphere.”
I agree with Darren Smith. I understand that you may not be able to place limits on someone’s artistic creation, but the photographer is engaging in commerce. It may have an artistic bent in the performance of the service–so does running an inn or arranging flowers in some respects–but primarily the photog studio is holding itself out as a service provider.
Having said that, because photos are so important to people and the wedding is a one-time event (no real opportunity for a do-over), I would be loathe to hire this photographer for a same-sex wedding. What would the quality of the photos be? Better to publicly boycott.
Anybody care to release the spam filter…
I see the logic…. But, it still does not mean that its the correct result…. Since this is a private business of personal service as opposed to the general publics offering…. Such as a DL picture picture…. The opinion is subjecting them to potential future law suits if they mess up or misplace the photographs….. Based upon the previous refusal to service same sexist couples….I’m having difficultly in reconciling the opinion….
This is actually an easier decision for me. The statutory law prohibits discrimination based on gender / sexual orientation in commerce. The married couple engaged in commerce in exchanging money for the photography services pursuant to a legally binding contract. The legislative intent is to protect the public generally from having to suffer discrimination when engaging in commerce.
Because of this, the photography company was acting as an agent of the couple and the photography images and quality were the direction of the couple, and subject to the contract, the photography was at their direction primarily. If the photography company had been acting in a freelance capacity where there was no contract in force and the photographer had say been photographing the wedding in a public place in the hope of selling the pictures to someone else (such as a paparazzo) it would have been the photographer’s first amendment right to take or not to take the photos as they saw fit. But it was not the case in this example.
I wouldn’t want a business that didn’t want to do a job for me to do it, and on the other hand if I got a job I didn’t care for I would charge top dollar. east is east and west is west and never the twain shall meet.