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
*are learned traits
Vestal Virgin,
Religious intolerance and racism, as opposed to sexual preference, are a learned traits. Thus the problem with your straw man.
The charge of inconsistency does stand because sexual preference is not a “discriminatory feeling.” It’s the product of evolution. A heterosexual should no more be compelled to ignore their feelings than a homosexual should be “re-programmed” to feel heterosexual feelings.
Your courtesies in connection with this matter are greatly appreciated.
*because racist feelings aren’t
Bob,
It’s not a free exercise argument. It’s a compelled speech argument. It’s your own argument. Your own argument recast with different categories. The mere fact of being religious categories doesn’t suddenly transform the example into a free exercise question. Admirable (or smarmy) sophistry, but also completely transparent.
With regard to your second point, the protected category under the New Mexico Human Rights Act is “sexual orientation”, not “homosexuality”. Thus, under the NMHRA, heterosexuals must respect the natural inclinations of homosexuals, and homosexuals must, in turn respect the natural inclinations of heterosexuals. A homosexual wedding photographer in the marketplace would be in violation of the NMHRA if he were to turn down a heterosexual couple due to his “beliefs”. A charge of inconsistency here isn’t gonna fly on the argument that a discriminatory feeling has equal worth because of its basis in human nature. Under your reasoning, protecting race under the NMHRA would also be inconsistent because racism isn’t protected at the same time. What a load of…
I’m glad to see your concession that wedding photography as a business and photography as an art form are entirely different things, despite sharing some similar elements.
Vestal Virgin
Vestal Virgin,
First of all I didn’t make a Free Exercise argument; thus making your straw man all the more irrelevant.
Second, your argument implies a dubious double standard; i.e. that heterosexuals must respect the natural inclinations of homosexuals but that homosexuals need not respect the natural inclinations of heterosexuals.
Finally, I never equated Ansel Adams with wedding photographers. I was merely pointing out that photography is necessarily a form of expression protected by the first amendment; just like Turley did in his post.
Your courtesies in connection with this matter are greatly appreciated.
Bob,
With regard to your argument above that the daily buying and selling of wedding photography as a business and the photographic art of people like Ansel Adamas are somehow categorically the same, in your own sophisticated words, “What a load of..”
Vestal Virgin
To Bob (and those who agree with Bob),
Just so we’re clear about the full consequences of your argument. Please think of this in the context of a Christian minority and a Muslim majority, such as Egypt, not the reverse, such as the United States, where the actual consequences would be trivial for the Christian couple:
“What you don’t want to acknowledge is that the Muslim wedding photographer retains the right to keep his mind free from Christian images he finds disturbing. If a Muslim photographer finds the sight of a Christian couple kissing to be repulsive, he’s entitled to keep his mind free of such images and he has the first amendment right to refuse to frame such an image by order of the state.”
Um. No thanks. The New Mexico Supreme Court has more than adequately answered all your arguments. I could recite them here, but it seems like a time waster. I refer you back to the decision.
Bron,
During the whole length of my life, I’ve worked with homophobic coworkers, homophobic bosses, and homophobic customers.
How did it work out for me? I manned up and acted like an adult by putting my personal feelings aside.
Vestal Virgin
Bron,
It’s about forced thought and expression. Nothing else.
And Blouise,
Love that Item 5 of yours. Sheer integrity.
Thank you kindly Blouise.
Bob, Esq:
I plan on buying a home in New Mexico and hiring a gay interior decorator to do the design and the work but I am going to wear a shirt that says “homosexuality is an abomination”
I wonder if they would work for me?
Compelling the photographer is a double edges sword which cuts both ways.
Your stance is correct and I would not expect a gay person to be forced to work for someone who held those sentiments.
Blouse,
I knew some museum had acquired it but couldn’t remember which one. I remember seeing a TV news story about it. It was sitting in a field, derelict. The news story was about restoring it before it was too late.
“I also read somewhere that the Birmingham bus Rosa Parks made famous was being restored for display.” (OS)
I believe it is at the Henry Ford Museum as my grandkids have sat in it and remarked how small it is.
Bob,
With you 100% on this one.
I’m was a singer and I refused to sing secular pieces in a sacred setting. So, if you wanted “The First Time Ever I Saw Your Face” sung in church at your wedding … you found yourself another soloist. I’d sing it at the reception but not in the Sanctuary. I’m sure that violates someone’s rights somewhere but the production of the music is mine and I alone control it.
I believe it was Item 5 in the contract.
BTW … I once had a bride and groom who wanted me to sing “Send in the Clowns” when the mothers of the bride and groom were seated. See Item 5 in the contract.
“Your arguments are akin to someone tyring to fight his way out of a wet paper bag and failing as he usually does.”
The only “tyring” one here is you; as tiring as your colorful description of the temper tantrums you imagine me going through. Jonathan Turley has the same problem with the New Mexico holding as I do; is he frothing at the mouth as well?
As Mr. Turley astutely noted in his post above, photography is a form of expression: “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.”
Photography is also a form of intellectual property. Further, the property element of said compound noun does not transitively create a governmental power over the intellect from whence it comes. That is to REITERATE that the government lacks the power to compel thought or expression.
Further, I brought up the NY Times to counter this ridiculous argument of yours:
Darren: “And I will answer your question about a journalist. Well, last time I checkedk I didn’t see many ACME Journalist storefronts on the main drags of New Mexico towns. so I don’t see the equivalence here. But if there is then they are still required to obey state laws here.”
So the NY Times is not a corporation?
See how that worked?
BTW, I was impressed by this little piece of sophistry:
Darren: “And about th NY times. Name me a time when you can go to, as a member of the public, to the New York times and hire them to write a story for you.”
Is that the issue Darren? No, it’s about the state compelling the use of one’s intellect to express something in particular. Again, to allow what you suggest invites state indoctrination. The state shall determine what thoughts are acceptable and the state shall determine what thoughts you will think and express. Again, that is tyranny per se as it is categorically outside the purview of the government’s specifically enumerated powers.
Your argument about the use of intellect in the performance of any service is nonsensical reductio ad absurdum that intentionally misses the point. Everything requires intellect therefore everything we do is speech. What a load of …
What you don’t want to acknowledge is that the photographer retains the right to keep his mind free from images he finds disturbing. If a photographer finds the sight of two men kissing to be repulsive, he’s entitled to keep his mind free of such images and he has the first amendment right to refuse to frame such an image by order of the state.
Furthermore, it is not bigotry for the heterosexual photographer to be repelled; since it is simply the opposite natural impulse that the homosexual is born with.
Respect and equal rights is a two way street.
The state supreme court has ruled. It is now settled law in Arizona. The End!
Did you know that original Woolworth’s soda fountain is a featured exhibit in the Smithsonian? I also read somewhere that the Birmingham bus Rosa Parks made famous was being restored for display.
However, I cannot imagine any same-sex couple ever hiring this photographer for some of the reasons mentioned upthread, not to mention his bigotry. If I were a local photographer, I would take advantage of the fact this guy just created a niche market for somebody else.
DAvid wrote”
Darren, the law actually does not list “gay couples” as the specially protected class of citizens. The closest category is “sexual orientation.” I am seriously wondering if this makes any difference at all to you?
~+~
I don’t know what you are talking about. What is the difference the couple was discriminated against based on their sexual orientation because the photographer said that he would not do same sex marriages.
Also it is irrelevant that the state might or might not recognize same sex marriages. It does not recognize sock hop dances either. If the photographer was fine with taking a sock hop dance contract for a group of men and women dancers they cannot the next week refuse to take photos of a sock hop dance involving all men for hire. The state does not have to list every type of situation that any business must be engaged in in order to be subject to the anti discrimination laws.
Darren Smith wrote: “What is the difference the couple was discriminated against based on their sexual orientation because the photographer said that he would not do same sex marriages.”
In order to prevail on a discrimination charge, the discrimination must be against a defined special class of people specified in the law. Someone might not discriminate against sexual orientation, because they consider that an internal condition of another person that does not affect them, while at the same time, they might object to gay marriage and to gay commitment ceremonies for political reasons, because it undermines the concept of the purpose of marriage being for reproduction.
Bob, Esq.
Your arguments are akin to someone tyring to fight his way out of a wet paper bag and failing as he usually does.
The fact of the matter, which the New Mexico Supreme Court ruled (and they are persons who obviously have probably twenty times more legal acumen than both of us combined) is that as a BUSINESS engaging in commerce with the public CANNOT discriminate against its customers in a manner that is against state law. You can call it expression, and therefore subject to unlimited deferrence under the first amendment until you are blue in the face, and frothing at the mouth and it will NOT change the law of the land in New Mexico. Like it or not, that is the way it IS.
Then you get wrapped up further in that wet paper bag by going around in endless circles over this issue of Well photography is expression. Anything can be regarded as expression. YOu can put designs or engravings on pistol manufacturing and then it becomes expression. And according to your thinking it should be then exempted from federal fireamrs regulations because the government cannot tell what kind of design pattern to put on the pistol or that perhaps the gunsmith decided he wanted to express himself by making a 30 mm rifled firearm and that he should be exempted from laws making that an illegal Destructive Device.
And now this about the intellectual property. Nice try. But it still does not change the fact that even if you claimed this was intellectual property, you are ignoring the second half of that compound noun; “property” even if this was intellectual property, it is property, therefore a good. and as such it was exschanged for payment of money. Guess what that is still commerce.
And about th NY times. Name me a time when you can go to, as a member of the public, to the New York times and hire them to write a story for you. They take it upon themselves for their own first amendment interestes. If they for some odd reason engaged in journalism for hire they would be unable to say no to a protected class just like any other merchant. But, lets look at advertising. If the times is allowed to accept advertisements that meet legal advertisement for widgets they cannot say they will not put ads for selling widgets by Jewish organizations or Catholic ones but not allow Methodist advertisments for the same product. There was a case in Seattle a couple years ago where Metro Transit got slapped for discrimination because they allowed one political organization to advertise but not another.
And you further go by saying that if someone uses their intellect in the performance of a service or providing a product then it becomes expression and not subject to anti distrimination laws. Well last I checked ALL human jobs require intelligence to perform, from designing a computer chip to shoveling sand onto icy roads. Unless someone could be hired to sleep or lie on their backs with a stirling engine on their chest as a form of power generation, you need a brain to perform jobs.
The fact still remains it was deemed by the state supreme court to be a violation of rights and that’s the law there. Businesses either choose to obey the law or they are subject to sanctions by the customers or the state.
Re: The discussion above about Plato.
The Internet says St. Augustine was engaged to an eleven year old girl at one point.
Photographers and pornagraphers do have things in common.