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
If you’re going to be pragmatic about not doing the job, the best course of action may be to not list your prices or fees publicly, and simply quote them an absurdly high price for the services they are asking you to perform.
@palmettodude You’re right, but the problem is that Elane Photography, LLC likely consisted of solely Elane and Jon Huguenin, the owners. I doubt they had any employees. In addition, many business owners see their businesses as an extension and expression of themselves, so that they don’t want their business name associated with any activity that they themselves would oppose.
Platos, I agree. I know there are companies that are touted as, and receive, support for being pro-gay. I assumed there was also a blacklist of companies that are not gay friendly. Put this company on the list, and find a photographer that is friendly and put them on the good list. As I write, I would seek out Buddy the Elf to do a PSA talking about the good and naughty list, and having a website that he can tout. I love your pragmatic solution.
As a former photographer who also studied art, there is also a distinction between “fine art” and “commercial art” among many art experts.
Fine art is generally not done for money and not for hire. Commercial art is done for a profit motive.
As a libertarian first, and a gay man second, I so enjoyed reading Turley’s calm and objective reasoning in this case. I work within the arena of copyright law, and a regular question within my profession is, “was it a work for hire?” Whenever a company hires an artist to do work, be it graphics for a website, or a mural in a lobby, the contract drawn up for the work carefully describes the work as a “work for hire” so that there is no question as to the ownership of the end product. It also firmly moves the labor in question from the arena of artistic impression into the arena of commerce. If the wedding photographer’s work is considered to be a “work for hire” than it is a business transaction, not an expression of his personal or artistic beliefs.
Juliet, The ADA protects you and your children in your dilemma, AS IT SHOULD. This is a somewhat different dynamic.
Nick: We don’t often disagree, but we do here. To me, discriminating against people because of a trait or characteristic they are born with is unacceptable for a business. Individuals should be free to be jerks whenever they want.
Wow, they are going to get some really bad uninspired wedding photos out of this deal.
I’m gay but in this case I think the photographers should be allowed their bigoted discrimination as protected by the 1st Amendment, but it should be publicized, they will lose business and this couple can go to another photographer who will do a better job and be happy for their business.
Neil Davis, Excellent point about NM not being a gay marriage state. And, I would like to amend my remarks by saying the “pragmatic” solution for the photographer would have been to say there was a scheduling conflict. I operated my own small biz for 30 years and we folks are the very pragmatic.
@Neil,
But isn’t there a “business” vs. “painter” tension in the painting hypotetical? The Business entity is prevented from discriminating.
So, could “Studio XYZ” accept the commission, but have Artist B do the portrait if Artist A objects – assuming the commission contract does provide for such eventuality.
I don’t believe the law requires an “individual” to not discriminate. The “business” can’t discriminate.
A silly example: I’m own a bake shop. I have a moral objection to red-headed people (substitute your favorite protected class). The bake shop can’t turn away red-headed customers, but I can hire a cashier/counter person with no such moral objection to service the customers.
If a read-headed walks in the shop, I’m free to flee to the back and let the cashier handle them. If the cashier is on break, I am free (as the owner) to close the shop for 15 minutes, etc…
Why do they cherry-pick their Bible? If they want to turn down gay couples, what about 2nd marriages? Inter-racial marriages? Couples that support optional war (Iraq, etc)? Couples that support the death penalty? Any couple that opposes any of the 3 different versions of the Ten Commandments (short version, long version, orthodox version)?
Keep religion in church!
@DarrenS:
There is that possibility. Then again, with my luck, it would be sooo camp, outre’ and over-the-top that it became the rage, and all the gay guys would insist on me doing their weddings. Sometimes life is funny that way, and will sneak up on you. (egs. Spriiinggggtime, for Hitler and Germaneeee! Winter for Pollllaaaand and Fraaaance!)
Squeeky Fromm
Girl Reporter
Dredd, I love the list of protected classes. What about Republican hippies. Assuming there were/are any, they should have @ least double protection. We actually still have a stronghold of hippies in Madison. Most are pretty long in the tooth, and NONE are Republicans.
“Now we pass laws making it illegal for those people to consider it immoral.”
Bullshit, David.
We pass laws to forbid discrimination as a practice against protected classes of people. You’re free to believe it’s as immoral as you like. But depending upon the nature of your business, you are not allowed to discriminate based on your feelings.
If you have a business where your business model is effectively an open offer and a public accommodation? Such as inns, hotels, motels, restaurants, cafeterias, lunchrooms, lunch counters, soda fountains, other facilities providing food for consumption, cinemas, theaters, concert halls, sports arenas, stadiums or other places of exhibition or entertainment?
You’re damn right you don’t get to discriminate.
See Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964).
That the law is evolving to define sexual orientation as a protected class causes you no end of consternation, but you better buckle up, buttercup.
Equal rights for homosexuals is on the way whether you like it or not.
Gene, That Bud article has busted the balls of 5 Bud drinkers to date. I also pointed out to my black buddies, in forwarding them the article, the lethal nature of malt liquor. There can be interracial ball busting. They give it, I give it, and we have a beer.
Squawky,
Did you learn that from Charley?
California has taken it too far?
(Legal Zoom). Uh oh … there goes the neighborhood. 😉
@PalmettoDude Yes, your hypothetical forces you to create the portraits because you are prohibited by law to discriminate based on gender as well.
I object to the suggestion that the photographer should have lied to Willock in this case. While many of us are comfortable doing that, perhaps she wasn’t, and I don’t think the willingness to lie necessarily indicates intellectual superiority. It is more likely that the photographer, believing that she lived in a somewhat free country, could politely decline to photograph a same-sex wedding ceremony without legal ramifications, especially given the fact that same-sex marriage isn’t even legal in the State that she does business in.
Wow squeeky your business acumen is dazzling. You really know how to punt your photography studio’s goodwil right into the hands of the competition. Where would you find the money to pay your bail bondsman for your arrest for Disorderly Conduct after your accounts receivable dried up and the judement for breach of contract the bride & groom sued you for?
While photography can be an expressive activity, I don’t see wedding photography being an expressive activity. Wedding photography is the objective recording of photons with some artsy-fartsy staging thrown in. I don’t see the photography of an opposite-sex marriage as expressing support for opposite-sex marriage, it’s simply recording an event.
Like the florist case you discussed months back, I am outraged by cases like these. Some people have sound, rational reasons to consider homosexuality and homosexual marriage to be immoral. Now we pass laws making it illegal for those people to consider it immoral. All of it is based upon an unproven ideology that people are born gay, when the science proves nobody is born gay. We can predict with reasonable certainty that a person will be born with the characteristics of a black person, but we cannot predict with any certainty at all that a person will be born with homosexual characteristics. We might as well pass laws protecting adulterers from discrimination.
Juliet says that the price of doing business is that you don’t get to pick and choose your customers. Who says? If someone tries to earn a living based upon his own labor, does he suddenly lose his right to decide who he contracts with and who he does not contract with? We lose our rights of association just because we want to offer products or services in exchange for earning money? Why would an employee maintain the right to choose where they want to work, but suddenly if he hangs out a shingle to advertise photography services, he loses the right to choose where he earns his money? Sorry, but none of this madness makes any sense to me. It penalizes the best producers in society, forcing them to behave in a particular way that is contrary to his conscience. It seems like we are heading to a cliff where a segment of society will not be allowed to buy or sell anything unless they accept and approve of the governmental dogma that happens to be popular at the time. This does not sound like a free society to me.
David: If your definition of a free society includes the right to discriminate against people who don’t share your religious beliefs, then you’re correct; this isn’t a “free society.” Feel free to move to a country that runs on religious bigotry. I suggest Pakistan or Somalia. They sound perfect for you.