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 didn’t know you did stand-up comedy, David.
BTW, it’s impossible to be an elitist and an egalitarian at the same time. They are diametrically opposed concepts, oh he who would treat homosexuals as second class citizens. Project much?
Gene H wrote: “it’s impossible to be an elitist and an egalitarian at the same time.”
The irony of your professed belief and how you conduct yourself has not escaped my attention.
Cleaned Gene’s clock???? Really?
Now look what you did. I spilled my coffee.
Bron,
The problem with markets and just outcomes isn’t one of impossibility, but rather one of consistency and ease of malleability by ultra vires means. In short, caprice and ease of corruptibility (essentially purchasable bias which translates to inequity).
Otteray Scribe wrote, “Some homophobic businesses are beginning to learn the true cost of bigotry in the 21st Century.”.
They just haven’t learned yet that they can conspicously give notice that: THIS IS A PRIVATE ESTABLISHMENT, WE RESERVE THE RIGHT TO REFUSE SERVICE.
Such a notice voids the assumption that they are public accommodations. This works with race issues, and with disability issues, or any other. The right to free association of contract is still alive. People will finally wake up to the tyranny of compelled performance and choose freedom.
The evolution of the decline of prejudice will finally occur in a free community, where such prejudices are not regulated by usurpations/assumptions of law. Such usurpations only foster more animosity in the minds of bigots. Bigotry and prejudice will always exist to some degree, but its evolutionary decline will best occur in a setting of liberty and unhampered communication.
Bron,
As you know, you cannot take a sample of one and plot a graph. However, this appears to be the culmination of a chain of events, starting with the couple’s complaint to the AG’s office. Who is to say what the outcome would have been if the rules and the consumer protecton office were not there.
Otteray Scribe:
That is good news on a number of levels. I doubt this is confirmation of my ideas but the market can [at least in this case] more effectively punish bad actors than any legislation could.
Some homophobic businesses are beginning to learn the true cost of bigotry in the 21st Century. Sweet Cakes, the Oregon bakery that refused to bake a cake for a lesbian couple is closing. They got a lot of support from fellow bigots on their Facebook page, but that apparently didn’t translate into cash flow. As the proverb says: Talk is cheap, but money buys the whiskey. The company is moving its operation from the storefront bakery to their home. I wonder if their neighborhood is zoned for a commercial operation, and if not, what will their neighbors have to say?
Story is here:
http://www.huffingtonpost.com/2013/09/02/sweet-cakes-by-melissa-closed-_n_3856184.html
Bron,
That would be an additional reasonable restriction in addition to requiring Representatives and Senators draft any legislation they are primary sponsor for, but still, the money needs to go.
Bron,
I guess thoughts got crossed in the delay time of posting. I never claimed you weren’t consistent.
“and what do you mean by geopolitical scams that serve the elite? Unless you mean our endless wars, which I would agree with you about.”
That’s exactly what I mean, though there are more subtle variations running along the lines of domestic concerns which keep the rift of populace expanding.
All is good, Bron. There does seem to be something missing from 8:32 to 9:55 though.
“You can’t do that. It would be unconstitutional restraint on the ability to petition your government according to the 1st Amendment. The right to petition is critical in a democracy. In fact, a democracy can’t exist without it.”
yes, you are right but you could limit the impact of business by making it illegal for lobbyists to write laws.
gbk:
I guessed I missed something, I was just saying that Gene H could verify those ideas as ones I consistently hold.
I am not, at this time, trying to be oppositional.
What do you disagree with? and what do you mean by geopolitical scams that serve the elite? Unless you mean our endless wars, which I would agree with you about.
Quoting myself:
“(Concerning the post of 9:10 pm)
Then we agree on more than you know.”
Have I stuttered.
Bron,
You’re so eager to disagree you don’t even read what I write.
That’s fine. After all, it’s your decision.
Good luck, and when your world implodes through no fault of your own expect the same that you have been so verbose in expounding.
gbk,
I will stipulate that on those particular points, he is fairly consistent. The details may change a bit, but the main thrust of these selected reforms is substantively consistent.
Bron,
“I would eliminate lobbying for one thing.”
You can’t do that. It would be unconstitutional restraint on the ability to petition your government according to the 1st Amendment. The right to petition is critical in a democracy. In fact, a democracy can’t exist without it.
“I would let business fail or prosper on their own merits.”
Sure. There are some exceptions that are rational (banking isn’t one of them).
“I would stop farm subsidies and foreign aid.”
Farm subsidies need to go as they no longer do their original purpose – support family farming during unstable markets – and only help Big Ag which has practically driven the family farm from existence.
Foreign aid is a different matter. It is not inherently evil. In diplomacy, it is a value neutral tool. But it can be a useful tool if properly used. Propping up despots friendly to our policy is not a proper use. Humanitarian aid, though, is another matter. It helps people and builds good will. Good will breeds a sense of brotherhood. Brotherhood breeds cooperation.
“I would bring our troops home from every corner of the globe except where there was a defined, necessary security interest [such as North Korea].”
Okay. But what about the remaining standing army? Many of the Founders warned against standing a standing military except in times of war because the lessons of history show that a standing army deprived of a set goal will eventually turn to domestic mischief.
“I would reduce the size of government by attrition”
Again, size is not the salient judge of quality, but function is. Cutting just to cut is nonsense. Cutting the non-functional parts of government? Is simply wise.
“and I would get out of bed with business. Just for starters.”
Okay. Remove money from the political electoral and lobbying processes. Make giving a pol more than $1,000 by anyone or any organization a felony that carries prison time.
“Next I would get rid of stupid regulations such as the one that regulates the color of margarine.”
Again, the difference between good law and bad law rears its head. Laws regulating the color of margarine are indeed ridiculous. Laws regulating food safety though are necessary.
“Foremost, I would have a flat tax and do away with deductions.”
As I’ve said many times before, a graduated flat tax with very limited deductions is both fair and a simplification of a grossly complicated and biased tax code that favors the wealthy and the corporations.
“The main thing, at least in my opinion, is to remove business from government and vice versa.”
Business without regulation is a recipe for economic tyranny, however, businesses should have no say in how they are regulated.
“And I would eliminate the Federal Reserve and let market forces set interest rates.”
And that would plunge us into uncontrolled inflation.
“That way Wall St. cant screw Main St.”
Or you could take a more sensible approach and regulate banking to segregate commercial banking from financial banking like Glass-Steagall used to do and thus eliminate the ability of Wall St. banks to replay their rigged casino game that was the CDS debacle.
“For what it is worth, I truly believe the TARP was to bail out Wall St/Paulson’s buddies.”
Of course it was. Corporate welfare of the highest order.
See? Wasn’t that much easier to find common ground without Rand and temper tantrums? You’re capable of having a reasonable substantive discussion, Bron. That’s why you disappoint me when you don’t (and that’s usually when you bring ideology to the table).
gbk:
That is what I think. Even Gene will tell you I am consistent on those points.
Bron,
(Concerning the post of 9:10 pm)
Then we agree on more than you know. But when you equate altruism with collectivism, and for years equate socialism with fascism, and for years blame the demise of this country on people caught up in geo-political scams that serve the elite I’m not sure whether to trust your current words.
Time will tell, I guess.
Bron,
I guess you forget that Mussolini developed fascism as a counter-proposition to socialism after being kicked out of the Socialist Party.
As for limiting freedom? That is what all governments and laws do. Am I going to have to explain the Social Compact theory of government to you again? Societies agree to limits on absolute freedom found at the state of nature for mutually derived benefit. Too few limits and the result is anarchy, too many and the result is totalitarianism.
But socialism? In particular democratic socialism? Is not the same thing as totalitarianism either. That is a feature that can apply to any governmental system although in some systems it is an inherent quality such as Communism (which, again, is not socialism even according to Marx) or a dictatorship (no matter its form).
Plus, I’m sure the citizens of Sweden and Norway will be surprised to find out they are not free with their mixed markets and democratic socialist forms of government.
Binary thinking is such a tragedy and yet a consistent feature of extremist thought.
The flat tax should be on all types of income, earned and capital gains.
The first $40k should be exempt.
gbk:
sure. I would eliminate lobbying for one thing. I would let business fail or prosper on their own merits. I would stop farm subsidies and foreign aid. I would bring our troops home from every corner of the globe except where there was a defined, necessary security interest [such as North Korea].
I would reduce the size of government by attrition and I would get out of bed with business. Just for starters.
Next I would get rid of stupid regulations such as the one that regulates the color of margarine.
Foremost, I would have a flat tax and do away with deductions.
The main thing, at least in my opinion, is to remove business from government and vice versa.
And I would eliminate the Federal Reserve and let market forces set interest rates. That way Wall St. cant screw Main St.
For what it is worth, I truly believe the TARP was to bail out Wall St/Paulson’s buddies.