Constitutional Law, Free Speech, Religion, Society

New Mexico Supreme Court Rules Photographer Cannot Refuse To Work At Same-Sex Marriage

RainbowFlag125px-Flag_of_New_Mexico.svgThe 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

683 thoughts on “New Mexico Supreme Court Rules Photographer Cannot Refuse To Work At Same-Sex Marriage”

  1. Gene – Do you really believe that government has no interest in public safety? Your question is too narrow to represent properly the scope of government interest. It is like you borrow a concept from libertarians even though you yourself do not believe in that concept.

    As you know, I have quoted science and case law. You interpret the case law in a very esoteric way, so we have a legitimate disagreement there. However, your constant presumption that I have not presented case law, science, or evidence, and that my arguments have not been based in objective law and legal principle is illegitimate. It is dishonest.

    In regards to your links, I am still looking for that agenda whose purpose is to oppress homosexuals and deny them equal rights. It apparently does not exist. Please give me the exact quote if you think that I have overlooked it.

    Biased news articles which offer their own interpretations is not sufficient to establish this agenda. I want to see it in their words. I want to see their strategy for accomplishing this. Give me the organizations name and their action agenda which indicates this goal. Most of what you posted represents a defensive reaction to an agenda which you still refuse to acknowledge as having any existence in reality.

  2. You mistake digust at authoritarian theocratic moralizing busy body hypocritcal bigotry for hatred, David.

    I don’t hate you.

    I feel sorry for you.

    Ignorance is its own form of punishment.

  3. I could pummel you some more but I think the point is made, you theocratic authoritarian bigoted intellectually dishonest busy body.

    To be clear, the arguments that you have not been able to overcome here are not based in propaganda or PR. They are based on solid legal principles. They are based on the 14th and 1st Amendments. They are based on case law.

    This is, after all, a legal blog.

    So again unless you can show a specific harm sufficient enough to merit rationally restricting the rights of homosexuals to have equal protection and equal rights under the laws of this country?

    You will always lose this argument, David.

    Every. Single. Time.

    Your concept of morality is an individual subjective choice.

    It will not trump objective law and legal principle.

    It does not trump science.

    It does not trump evidence.

  4. David,

    What’s you’re agenda? Please put it in 10 words or less…. Thank you…

    1. Gene H – There is no doubt that some people have an agenda to stop the homosexual agenda. However, that is not the same as an agenda to “oppress homosexuals and deny them their rights.” I want to see a reference to the agenda of any organization that supports this agenda you have described so that I can be sure to avoid those groups. Everyone I know who is opposed to the homosexual agenda want equal rights for everyone and they do NOT want to oppress homosexuals. What you and I disagree about is how to achieve equal rights for everyone. We also disagree that treating same sex unions differently from opposite sex unions in law results in oppression.

      The bottomline is that you have adopted a doctrine, a way of thinking, a dogma, that represents anyone who disagrees with that doctrine as religious haters seeking to oppress a minority and take away human rights. This is a false doctrine, but you choose to believe your ideology no matter how much evidence stacks up against it. You are like the haters of blacks who claimed they could do what they did because their perception of blacks was true.

  12. David,

    Am I supposed to be able to follow your convoluted reasoning…. Come on… You change positions more than a 5 year old waiting to go to the bathroom… I think you said something about religion…. You have quoted some religious articles…. You have called it a homosexual agenda… Now you’re calling it a sexual philosophy….. Let me ask, do you understand the difference…. Are you really a politician…. Do you play poker on your cellphone…. I’m aghast…. Not really… But you are funny to watch… Each post you make is even more inconsistent than the first…. No I’m not going to point them out to you… You should know which truths you put out….

  13. “You, Gene, and OS ignore the science and embrace your own personal belief system while claiming everyone who disagrees with you is an evil Christian.”

    No. We call people who insist on making legal arguments using religious definitions theocrats. When they deny they are advancing argument based in religious dogma instead of legal principle, we call them hypocrites and intellectually dishonest. When they argue for oppression, we call them authoritarians. When they turn around and say things about the group they are trying to oppress – like “I probably care more about homosexuals and have helped more homosexuals than anyone in this forum.” – we call them ridiculous parody.

    The law of identity holds.

    I bet some of your best friends are gay too, aren’t they, David?

  14. David,

    Jesus wasn’t a Christian…. That’s my point…. You base your philosophy based upon an illusion…. But claim Christianity as your basis….of belief….

    It wasn’t until after the 3rd Century that this sect of Jews distanced themselves from being Jewish…..and called themselves Christians…..

    1. AY wrote: “You base your philosophy based upon an illusion…. But claim Christianity as your basis….of belief….”

      I have NEVER claimed Christianity as my basis of belief. I am not a Christian. I’m not a member of any religious sect. All the evidence I have presented about the dangers of sexual promiscuity (including homosexuality) is from science and common sense rational thought based upon empirical evidence. You, Gene, and OS ignore the science and embrace your own personal belief system while claiming everyone who disagrees with you is an evil Christian.

      My point about Jesus was that his value was not based in sexuality. From a Jewish perspective which values marriage and family, Jesus failed in that department. In contrast, homosexuality promotes a philosophy which values others based upon sex. This is partly why you keep thinking that I am devaluing homosexuals by being against their sexual philosophy.

      I probably care more about homosexuals and have helped more homosexuals than anyone in this forum.

  15. “that was an interesting paper and could be used to change any views held by individuals.”

    That would be because that isn’t “the homosexual agenda”, Bron.

    That’s one man’s design for an organized propaganda campaign.

    I guarantee you that those working to oppress homosexuals and deny them their rights have their own mirror version of such a plan.

    As I’ve said all along; propaganda is a value neutral tool. It is both art and science. How it is used determines if it is good or evil. That’s why being able to discern the mechanisms of it are critical to evaluating the ends.

    Tyranny, intolerance and oppression are bad ends by most any ethical measurement just as breaking free from those things is a good end.

    1. Gene H wrote: “That’s one man’s design for an organized propaganda campaign.”

      How obtuse you are. The book had two authors, Marshall Kirk and Hunter Madsen. How can you possibly say it is “one man’s design”? Read the book and you can see how the hundreds of homosexual activist organizations have implemented the plan. I’m talking about groups like the National Gay and Lesbian Task Force, Gay and Lesbian Advocates and Defenders, Marriage Equality USA, and numerous other organizations that you like to pretend have no agenda.

      Gene H wrote: “I guarantee you that those working to oppress homosexuals and deny them their rights have their own mirror version of such a plan.”

      Interesting how you deny any plan by homosexual activists but guarantee that there are plans to “oppress homosexuals and deny them their rights.” Please give me just one citation of such a plan? I have offered evidence. You offer nothing but your biased and unsupported opinion.

  16. Well, I’ll try one more time:

    David,

    “I really do not understand why you find fault with that word ‘agenda.’ From your perspective, is it suppose to be evil for people to organize around an agenda?”

    Then why do you refer to “the homosexual agenda” with obvious disdain and hysteria?

    I’m getting vertigo reading your posts, it’s like a merry-go-round gone awry. Time to reset.

    This is a long song, but you only have to listen to the first two verses; here’s the lyrics to make it even easier.

    ———————————

    Really don’t mind if you sit this one out.
    My words but a whisper — your deafness a shout.
    I may make you feel but I can’t make you think.
    Your sperms in the gutter — your loves in the sink.
    So you ride yourselves over the fields and
    You make all your animal deals and
    Your wise men don’t know how it feels to be thick as a brick.

    And the sand-castle virtues are all swept away in
    The tidal destruction
    The moral melee.
    The elastic retreat rings the close of play as the last wave uncovers
    The newfangled way.
    But your new shoes are worn at the heels and
    Your suntan does rapidly peel and
    Your wise men don’t know how it feels to be thick as a brick.

    ———————————-

    1. gbk wrote: “why do you refer to “the homosexual agenda” with obvious disdain and hysteria?”

      I don’t have hysteria. I refer to the homosexual agenda in an objective way, to refer to the collective propaganda, the philosophical framework, which has worked to pervert our legal system based upon a perversion of egalitarianism.

      gbk wrote: “I’m getting vertigo reading your posts, it’s like a merry-go-round gone awry.”

      This is because you refuse to give up your working paradigm, the very philosophical system which I am challenging. You have to release your unproven premises a little bit before you can understand what I am saying. As long as you cling to unproven assumptions, you will fail to rationally engage on this topic.

  17. David,
    You are far too full of yourself. You keep the delusion going that you have “destroyed” arguments, when in fact all you are doing is embarrassing yourself by parading your hatefulness and bigotry. And no, this is not an ad hominem attack. It is the truth. As for proving me or Gene wrong, all you have done is proved yourself to be a hateful little man who would try to force your personal agenda on a tenth of the population of this country. You and your ilk at Focus on the Family have a sickness that cannot be cured by any normal means.

    It’s OK. Keep it up. You present a virtually stationary target. The only risk to the sane people around here is your repetitious illogic might get boring.

    What else do you have? So far, you are shooting blanks.

    1. OS wrote: “all you have done is proved yourself to be a hateful little man who would try to force your personal agenda on a tenth of the population of this country.”

      I have never argued to force my agenda on anybody. I am simply providing persuasive arguments. You are free to either ignore the arguments, rebut the arguments, or be persuaded by them. Nowhere have I argued to change the laws to make homosexuality illegal. The only laws I disagree with are the anti-discrimination laws because they are being used to harm people who accept the scientific evidence of sexual immorality.

      OS wrote: “this is not an ad hominem attack. It is the truth.”

      It looks like you have been deceived by Gene’s personal concept of what constitutes an ad hominem argument. You sound like a gossiper claiming that he is not engaged in gossip because the gossip he shares is the truth.

      The phrase “ad hominem” refers to speaking toward the man rather than the substance of the argument. It is human nature, that when logic and evidence fail, you attack the messenger, you discredit the messenger, in order to get others to react emotionally in a way that is contrary to the evidence. You can believe all you like that I am a hateful little man, but that doesn’t make it true. It might be true in your subjective mind, but it is not true in reality. The truth value of it also has absolutely nothing to do with the subject of our conversation. Therefore, it is a logical fallacy no matter how much you believe it to be the truth.

  18. dAvidM

    that was an interesting paper and could be used to change any views held by individuals.

    I am amazed people are that prone to mind control.

  19. When an agenda is to oppress and deny others their freedom, you bet it’s evil.

    Your rights end where others rights begin.

    You’re free to think homosexuality is immoral all you like.

    You are not free to force your morality on others who do not share it via the mechanisms of government.

    And I don’t think you realize the finishing blow you just dealt to what little – and it is indeed miniscule – credibility you might have, David.

    Do you often commit rhetorical suicide in public?

    That was a rhetorical question.

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