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 was not making an equivalency argument.”
Yeah, you were, David. There was no other reason to bring up pedophilia than false equivalence except for perhaps guilt by association and loaded language, other well known propaganda techniques in addition to false equivalency. You are really out of your depth trying the crap you try to sell here and how you try to sell it.
“In regards to the role of marriage in reproduction, it doesn’t really matter whether you agree or not in regards to discrimination. It is a political viewpoint that you disagree with”
No. It’s a legal fact. Reproduction is not a valid state interest in marriage. Infertile hetero couples can marry. Hetero couples choosing not to have children can marry. Divorce is legal even if children are present. You are not mandated to have children as a consequence of being married. There is no valid state interest in reproduction in regards to marriage. End of story and as proven time and again despite your bleating to the contrary. The legitimate state interests in marriage end at the contractual nature and ramifications of the relationship.
And I’m sure that ire directed at lies, distortions, bigotry and ignorance is perfectly well directed.
Gene H wrote: “There was no other reason to bring up pedophilia than false equivalence except for perhaps guilt by association and loaded language, other well known propaganda techniques in addition to false equivalency.”
It is kind of funny, because I had actually typed out a whole paragraph leading into that paragraph that explained the connection more directly regarding what the law defines as moral and what people innately know is right and wrong and how this affects our reading of the law. Remembering Otteray Scribe’s admonition for me to be brief, I deleted it, thinking it unnecessary.
Sorry to have upset you.
Peace be with you.
Gene, the Raoul Duke piece was brilliant!
Gene,
All right. Well, from there, my point is straightforward, about the situation prior to Elane:
1. Gay photographers have to photograph weddings of homophobic religions, but homophobic photographers do not have to photograph same sex weddings.
2. Same sex marriage partners are subject to public accomodations discrimination, but members of homophobic religions are not.
That means gays have to pay the price of citizenship and the price of discrimination, but members of homophobic religions pay neither (prior to Elane).
So, if you can’t tell, I think Elane is good. 🙂
I do believe it is “Elane”, without an “i”, although I think the woman’s actual name was “Elaine”, with an “i”.
**********
David,
All right. You seem like a nice guy when you’re not talking about gay people. Just like me. 😛
I wish you the best.
Vestal Virgin
Vestal Virgin – I have visited the Temple of Vesta in Rome that you mentioned, and I am curious about your handle used here. Is there some formal connection you have in regards to this subject, or is it just a tangential interest?
Vestal Virgin wrote: “1. Gay photographers have to photograph weddings of homophobic religions, but homophobic photographers do not have to photograph same sex weddings.
Your statement reflect total nonsense! Members of homophobic religions are not going to want a gay photographer at their wedding. And why would gays want a homophobe to photograph their wedding?
Prior to Elane, homophobic photographers did not have to photograph same sex weddings. Was that a serious or life threatening problem for gays? Or, did they desire to rub their gay lifestyle in the face of a homophobic photographer? Supposedly these ones did because they sued to exert such a psudo legal right. Why do you suppose gay persons desire to compel homophobes to participate in their wedding ceremony?
The fact that gays would utilize discrimination laws to prove that they hold some legal authority over homophobes is telling of their overall agenda of compelling acceptance of their lifestyle by the force of the state.
The sad part is that the discrimination laws are being construed in a manner that operates to void the right of a homophobe to say no to contracting with persons with whom they find objectionable. This just goes to prove the essence of what I posted earlier about the illusion of private contracts. This sort of law and the decision in Elane is evidence of the eradication of private contracts. As a result of your capacity and legal status of ‘federal employee’ the government has become a ‘behind the scenes’ third party of every contract, and this is the underlying basis fo any public interest in what would otherwise be a private contract. And you thought you were free.
VV,
Theoretically, but I haven’t read the NMHRA so I won’t go into specifics about it.
___________
David,
Once again your proclivity for false equivalences and ignorance is astounding. Pedophilia is illegal because 1) it cause harm to children and 2) it vitiates consent. It is not the same thing as homosexuality between consenting adults. Which is still none of your goddamn business.
Also, and again, reproduction is not a legitimate state interest in marriage.
You are as dense as neutronium.
Seriously, you must just be a masochist at this point to keep posting your idiotic drivel here.
Gene H –
In many of your posts, you direct ire toward me upon a misplaced foundation. The brevity of my recent post surely lets you read an intent or interpretation that I did not make.
I was not making an equivalency argument. The point is that we can’t just look at one law like Vestal Virgin does and ignore the whole body of law that attempts to define right and wrong for us. If the law actually agreed with the photographer and defined the object of her moral objection as something criminal, how does that affect VV’s interpretation of the anti-discrimination law?
Traditionally, law has recognized the concept of conscience, and laws are not suppose to violate conscience. In fact, people are expected to follow conscience even when the laws are contrary to it. If a soldier is ordered to destroy every man, woman and child in a village, he might legally disobey the order because that order is unconscionable.
In VV’s analysis, I do not see any recognition of individual conscience. If someone finds something immoral, it seems to carry zero weight unless the civil law also clearly defines that same thing as immoral.
In regards to the role of marriage in reproduction, it doesn’t really matter whether you agree or not in regards to discrimination. It is a political viewpoint that you disagree with, but political viewpoints are not a protected class of the anti-discrimination laws. Please try to look at the issue logically and remove yourself from your emotional investment in these issues and read my post again. Hopefully you will read it in a different way.
David,
It’s time for church, isn’t it? Although I recommend the Temple of Vesta. It’s only the hearth of the City of Rome! Don’t desecrate it like Serena did. That’s what brings the Visigoths.
Vestal Virgin
Vestal Virgin wrote: “It’s time for church, isn’t it?”
Church? I don’t attend church. I keep telling people here that I am not religious, but they don’t believe me. They want to believe that the only reason I think the way that I do is because I have been brainwashed by some religion. It is unthinkable to them that applying myself to study and logic has resulted in my opinions. I think many are in a state of rebellion against God, so they have this paradigm that any sentiment favorable to God is the result of religious brainwashing.
My studies have led me to be a theist, and I believe in religious freedom in a Jeffersonian type way, but unlike Jefferson, church attendance to me seems to be a waste of time.
Gene,
I think we have a miscommunication. If religion is a protected category under NMHRA, a gay wedding photographer, in the marketplace in New Mexico, would still have to photograph the wedding of members of a homophobic religion, though he finds their beliefs objectionable, would he not?
Vestal Virgin
VV,
Legally speaking, you are way off track.
There is the free speech argument advanced by JT above which is valid as a matter of Constitutional Law. Now that New Mexico state law says different? Doesn’t mean that translates to Federal law. The Supremacy Clause prevents that from happening. A state may provide superior protections for its citizens than Federal law, including protecting what they recognize as fundamental rights, but those laws supplement Federal law, not supplant them. There is a saying in legal circles, a kind of truism, “Federal law is the basement, state law is the ceiling.” However, in providing that superior protection, NM may be running afoul of the 1st Amendment because not only is there the Free Speech issue of expressive arts as the Prof mentions, but there is another 1st issue in the contracting matters because of Freedom of Association (which isn’t specifically mentioned in the 1st, but is held to exist as a consequence of the 1st, National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958)). Absent the supplemental protections of NM law, if Elaine isn’t engaging in providing public accommodation or interstate commerce, they are free to associate (and to contract) with whomever they please for whatever reason they please. However, for now, the superior protections afforded by state law do apply, but the potential to clash with the 1st is still there.
Otteray Scribe,
If David is willing, together I think we should box these things up, load them in the van, and find a place to start selling them. 🙂
The news story is pretty insane. A party for a cousin that involves waiting two hours for a table only to be confronted by discrimination when the finally do get a table.
I would agree with the guy on the video. It’s not about the free meal that was offered.
Vestal Virgin
V V, you are more than welcome. You were trapped in a sea of knockoff watches, handbags and cheap shoes.
***************************
There is a story in the news about a Wild Wings restaurant in Charleston, SC that refused service to a group of 25 black people because a white customer complained about feeling “threatened” by the group.
http://www.radiofacts.com/blacks-asked-leave-south-carolina-restaurant-white-customer-felt-threatened-video/
Wait. I left something out.
Prior to Elane, LGBT people pay BOTH the price of citizenship AND the price of discrimination. Members of homophobic religions pay nothing. Free ride!
Post-Elane, both LGBT people and members of homophobic religions pay ONLY the price of citizenship.
VV,
Dug you and David out of the filter.
Thank you whoever got it. Was it OS? Thank you. 🙂
Forward on,
I agree that it might be a bad idea to hire a photographer or caterer if they might sabotage the event. I am also pretty sure that although this case has moved through the courts and is now settled, the wedding has been held and everyone has moved on.
The photographer could have handled this differently by saying something to the effect that he is biased against same-sex marriage, is afraid it might show in the quality of the work, and, “Let me refer you to a colleague who will do a better job than I could do.”
It appears he could use some sensitivity training, as well as a seminar on how to conduct good public relations.
My post disappeared. Could someone please get it?
Gene,
I respectfully disagree that this is a simple boundary question between two conflicting rights. Here’s why:
1. Prior to Elane, same sex wedding partners have anywhere from all down to zero choices for wedding photographers, depending on the cultural climate. Members of homophobic religions have their choice of all photographers (barring other constraints, of course). A gay photographer is barred from refusing to photograph the wedding of members of a homophobic religious organization, though he finds them morally objectionable, because religion is a protected category. A homophobic photographer is free not to photograph a same sex wedding.
2. Post-Elane, same sex wedding partners may choose any wedding photographer. Members of homophobic religions may also choose any wedding photographer. A gay photographer may not refuse to photograph a wedding he finds objectionable. A member of a homophobic religion may not refuse to photograph a wedding she finds morally objectionable.
In other words, prior to Elane, LGBT people pay BOTH the price of citizenship (as the concurring opinion put it) AND the price of discrimination.
Post-Elane, both ONLY pay the price of citizenship.
Vestal Virgin
Vestal Virgin wrote:
“A member of a homophobic religion may not refuse to photograph a wedding she finds morally objectionable”
If the sexual orientation was pedophilia, would she be allowed to refuse to photograph the criminal behavior of the pedophile?
Or is she bound by anti-discrimination law to be forced to photograph it?
Bob,
This is the first time I’ve heard the idea that having a se xual orientation implies disgust toward a different orientation, and that the disgust should be a protected category under nondiscrimination laws because it arises out of the same se xual biology as orientation.
Preference for one thing does not imply disgust for another thing. Having one skin color does not imply disgust toward a different skin color. Membership in one ethnicity does not imply disgust for a different ethnicity. Membership in one religion does not imply disgust for a different religion. Likewise, having one se xual orientation does not imply disgust toward a different se xual orientation. That thing you feel, that you locate in the object of your feeling, that you call “repulsive”–that’s prejudice, and it’s immaterial whether it arose from nature or nurture. Actions in the marketplace based on feelings like that are exactly the kind of thing that the NMHRA and the Elane Photography decision were designed to eradicate.
Forward on,
The New Mexico Supreme Court dealt with a similar hypothetical in the decision: Would an African American photographer have to photograph a Klan rally? The answer was “no”, because political views are not a protected category under the New Mexico Human Rights Act. However, a photographer who was a member of the Klan could not refuse to photograph a wedding in which the bride, the groom, or both were African Americans, because race *is* a protected category.
Vestal Virgin
So if a black couple owned a photography business and White Neo Nazis want their wedding filmed they have to go do it? The only people who should be forced to do stuff is the anti-gays and racists whites. White people should not have any rights when it comes to stuff like this.
Though Im not sure why a gay person would want to do business with anyone who doesnt like them. Photos will turn out bad.
I gotta go with Bob on this one. The very notion that your rights end where others begin is by its very nature a reciprocal relationship. Equal rights doesn’t mean others have to like, respect or approve of you. It just means equal rights and equal protection under the law. If a Federal law was passed tomorrow fully recognizing equal rights based on sexual orientation, it would still only be one step on a long road to overcome the social problems LGBTQ people face in dealing with the bigotry in our society, but it would be a big step in that it would afford legal recourse and remedy for wrongs based on discrimination where there is none (or limited) recourse now. I’m all for my LGBTQ brothers and sisters having those protections, but I’m not a Pollyanna and think that things will magically get better for the gay kid living in rural Alabama who is afraid to go to school because the ignorant rednecks are going to torment him or her simply because they’re different. But if the rednecks go too far at least there would be legal recourse. To paraphrase Lao Tzu, all journeys begin with the first step. Laws shape societies and just so societies shape laws. The relationship is reciprocal. A change in one will usually result in a change in the other but it is rarely a rapid process. It goes back, legally speaking, to what our host was discussing in the column: a conflict of fundamental rights. It’s a thorny issue, but it always is when laws or fundamental rights come into conflict. Finding just parameters for resolving that conflict will take time.
Vestal Virgin,
Defining the consequences of sexual preference as “a different form of prejudice” implies that sexual preference is nothing more than a preconception; i.e. a learned trait. That’s ridiculous.
Sexual preference is a non-conceptual phenomena; i.e. it precedes judgment. Else it would not be a product of evolution.
Your courtesies in connection with this matter are greatly appreciated.
Oh I see. I think I get it now. At first, I thought there were two Bob, Esq.s posting here. You call one form of prejudice “learned” and therefore properly subject to state disapproval. Then you shift ground and call a different form of prejudice the flip side of one’s sexual orientation, that way you can bootstrap it via the consensus regarding the immutability of sexual orientation.
Clever gymnastics, but that’s the most ridiculous thing I’ve heard this weekend. (It’s not even true. There’s compelling evidence that prejudice has a genetic component relating to in-group membership and outgroup membership.)
Oh wait, no it’s not the most ridiculous thing I’ve heard all weekend! There was something even sillier on another site that I was commenting on. I’ll leave it at that, but if you’re really curious, I’ll tell what it was.
I’m going to be away from keyboard for about 10 hours, so if you reply, I won’t be able to respond.
I would be happy to be courteous, now that you are. 🙂