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
AY,
Thanks. I want to see the list of invited guests, then I want to compare that with who actually showed up. Inquiring minds want to know.
OS,
Thanks for that delightful news story…. John Roberts getting married…. I think it’s funny that he has the same name as the Chief Judge….
Oh, and not once have I used the Groucho Model Confusion Ray on you today.
You arrived pre-confused.
One would think you would be accustomed to that by now.
Bron,
I have twisted nothing unless you count tweaking your nose. But please, do enlighten us as to where I have mislead you about the nature of egalitarianism. Prove that it is something else other than what I have said.
I will gladly change my mind if you can prove me wrong.
Which would be a hoot considering you’ve been doing nothing so far but proving my points for me. I hardly need my A game to deal with kind of high quality argumentation. That was sarcasm since you’re apparently suffering from some difficulty understanding things. I wouldn’t want to be too subtle for you. 🙄
I just saw this news: Justice Ruth Bader Ginsberg will be the first SCOTUS Justice to perform a same-sex wedding tomorrow (Saturday). The couple is the noted economist, John Roberts, and Kennedy Center President Michael M. Kaiser.
Details at the link.
http://www.washingtonpost.com/politics/ginsburg-to-officiate-same-sex-wedding/2013/08/30/4bc09d86-0ff4-11e3-8cdd-bcdc09410972_story.html?Post+generic=%3Ftid%3Dsm_twitter_washingtonpost
Bob, Esq.
Don’t you think this works better:
Bron,
Yeah, it’s like one of those Roschart drawings. It’ll be a face palm moment when you find it. It’s only two of your words, can’t be that hard.
Anyway, till next time.
gbk:
I guess you will have to be more obvious then.
We interrupt this … whatever to bring you the best escalator ever.
http://humortrain.com/post/59385804494
Gene H:
that was a great example of what you do best. Which can be summed up simply: “when did you stop beating your wife.”
It isnt even a very good twisting. You are off your game lately, are you well?
Bron,
I already did at 5:13.
gbk:
point it out to me then, I am eager to learn.
I would also like to add that David’s target audience being a flat fish explains a lot about his writing and reasoning.
” I was arguing against egalitarianism. You arent going to make everyone equal.”
Add “egalitarianism” to that list of words you don’t understand, Bron. “All men are created equal” is an example of egalitarianism. In fact, the phrase is a very concise summation of Hobbes. To be precise, the word means the principle that all people are equal and deserve equal rights and opportunities. “All men are equally created” is not. That would a fine example of delusion that is perfectly counter to observation of the natural world. Even if you are conflating the two to argue against equal outcomes – which also is not an example of egalitarianism. It is especially so when you are not only arguing against egalitarianism but for a systemic basis which is a recipe for tyranny like Objectivism and the ideals of big “L” Libertarianism which pays great service to the word “freedom” without really understanding it. Much like Rand herself and her acolytes such as yourself. Objectivism is, in addition to being anti-democratic, is anti-egalitarian again because it requires an underclass (Untermench).
If you truly value liberty and freedom for what the words truly mean and think it is found in Objectivism, you are sorrily mistaken.
Bron,
It’s not better. Read it again, your error is much beyond the use of a comma and references your years of past statements, including current ramblings in this thread. If you can’t see it, I can’t help you.
If you choose to belittle my meager, simple-minded contributions to this blog then so be it. I have always noted, though, that your writing becomes monosyllabic, much less verbose, and covered with spittle when you respond to anything I’ve written.
Bron,
“I think you need to go and read what gene wrote. I was arguing against egalitarianism. You arent going to make everyone equal.”
I’ve read what everyone has written on this thread, Bron. I’ll stand by my simple-minded reading while noting your protestations.
“Thank you, I thought you would.” [Concerning my claim of conflation of altruism/collectivism.] Need I say more, you didn’t.
“[H]e doesnt shop them all out but in any event are you against helping people in India make a living? I am pretty sure you love foreign aid. I guess only if it is American tax dollars.”
And how do you claim that, “I love foreign aid?” Most especially if it is tax based foreign aid. We’ve never spoken of this before.
Your friend must be a great believer in altruism if he is helping people in India make a living, What a noble goal. But wait, isn’t that collectivism?
gbk:
The failure in our society is caused by altruism/collectivism, and not by capitalism and limited government.
Is that better? Good catch though. I always figured you were probably good at something. Now that you have mastered commas, isnt it about time you move on to other punctuation?
Although I think you could make the case that the and after collectivism separated the two parts.
gbk:
he doesnt shop them all out but in any event are you against helping people in India make a living? I am pretty sure you love foreign aid. I guess only if it is American tax dollars.
gbk:
“I also like how you conflated altruism and collectivism:”
Thank you, I thought you would.
gbk:
I think you need to go and read what gene wrote. I was arguing against egalitarianism. You arent going to make everyone equal.