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”

  2. I equate your originality with like trying to hold a greased screwdriver in a wet hand….so far I see you as evasive….

  4. David,

    Considering how near to impossible it is to get you to state an actual position without waffling…. Is like using Bill Clinton’s life…. I didn’t have sex with Monica…. Some folks don’t consider a BJ sex…. You don’t happen to own a blue dress do you?

  5. I know plenty of people that have destructive mind sets and they don’t use drugs or alcohol….

  6. David,

    Surely you are smarter than to suggest alcohol and drug use creates or causes homosexuality….

    1. AY – I think you are trying to fit me into a box – a stereotype – which your belief system has constructed. I realize I don’t fit into one of your boxes. By your belief system, I’m suppose to be religiously motivated by religious dogma. I’m not. By your belief system, I am suppose to hate homosexuals. I don’t. I am not waffling like Bill Clinton. It is just taking you awhile to figure out what to do with my originality.

      I think my position is pretty clear. I view homosexuality as one end of a continuum of sexuality, not as a discrete class of people who are being discriminated against. I view their sense of discrimination really being a conflict of inner turmoil caused by behavior that is against natural law. Drug addicts face similar inner turmoil. Does society tend to frown on drug addicts and homosexuals? Yes, but that is not the cause of their inner conflict. It is a product of how their behavior tends to be self serving.

      I do not believe that alcohol or drugs cause homosexuality. I believe that some of the psychological aspects that lead a person to trying homosexual sex also facilitate them to try drugs. As I have said many times, I believe that homosexual behavior is generally a pleasure based behavior. I have known young college students who go into homosexuality after being heterosexual, and they have undergone profound psychological changes as a result of it. OS will object that such is impossible, but he is speaking from his ivory tower of supposed higher learning and I am speaking from actual experience in the real world.

  7. I have no doubt you subscribe to a form of that agenda…. You just don’t protest funerals….

    1. AY – I have less of a problem protesting funerals for an important cause than I would in joining up with the Westboro Baptists. I actually have a mutual acquaintance with the Phelps, but I have turned down opportunities to work with them because of fundamental disagreement with their motivation. While I might agree with their stance of disapproval of homosexual behavior, their reasons are more religiously based and involve a judgmental attitude of hatred against people they don’t even know. I am not comfortable taking that high position of authority to judge others. I have worked closely with murderers in prison, and I have never taken such an attitude toward them even though I disagree with their behavior. Why would I take such an attitude toward homosexuals whose primary victim of their personal sexual choices is their own self? If you think that I subscribe to a form of their agenda, you just don’t know me.

      1. So DavidM, the Cowardly Concern-Troll, is okay with Westboro-style harassment, but is too afraid of the public censure to actively join them.

        Figures.

        1. Juliet wrote: “So DavidM … [ad hominem removed] is okay with Westboro-style harassment, but is too afraid of the public censure to actively join them.”

          Kinda the opposite. I am not afraid of the public censure involved with such behavior, but the personal harassment aspect of it is not to my taste. I think a funeral is a time for closure regarding someone’s death, and I would rather let those people grieve in peace without engaging in political debate at that time and place.

          1. DavidM: [ad hominem removed]

            I’m positive Gene already explained the difference between an observation versus an ad hominem attack, but here:

            http://en.wikipedia.org/wiki/Ad_hominem

            I would have linked to something more scholarly, but felt Wiki was more in keeping with your ability to reason. But the gist is that I was making an observation as to your character, not refuting your “argument” with name-calling.

            1. Juliet wrote: “But the gist is that I was making an observation as to your character, not refuting your “argument” with name-calling.”

              Gene is probably the worst authority on argumentum ad hominem. Nearly all his posts are replete with them. His defense is the indefensible position that because it is true it is okay to do it.

              If I argued from a position of authority, then perhaps your character assassination would be allowable *IF* it actually argued in a way to discredit me through showing a conflict of interest or by establishing an actual source of bias for my position. Your epithet did nothing of the sort, so it is purely ad hominem attack. Furthermore, I am at the same level as you here in this forum, beneath the authority of experts like Gene and OS who are moderators and formal contributors here. I am truly the lowest person here in that I have the respect of neither the moderators or anybody else. My arguments stand on their own merit alone, which is why my character is attacked so much here, to remind people why they should not take the time to study and consider them.

              1. DavidM: “Furthermore, I am at the same level as you here in this forum….”

                You are not up to my level, in any respect. Your “explanation” as to why you think my name for you is an ad hom attack is a prime example of your intellectual inferiority. That’s why I don’t bother with you very often.

                I would encourage you to spend more time with the “other homosexuals,” but I doubt they’d have you. In fact, that’s probably why you despise them. Rejection can be painful.

  8. David,

    You’re good… I guess this is just gay propaganda…. Right…..

    You better tell your buddies that your brother Fred deemed them homosexuals….

    Fred Phelps, leader of the Westboro Baptist Church in Topeka, Kansas took his church’s “God Hates Fags” message to the funeral of Matthew Shepard, held in Casper, Wyoming, on October 17, 1998. Two of his picket signs read: “No Tears for Queers” and “Fag Matt in Hell.”[16]

    That’s off of wiki…. Just I case you care…

    1. AY wrote: “I’m waiting for an answer to mine…”

      Just look up the thread where I have addressed the answer to your question already. There is no way for me to address this in 15 words of less.

      Allow me to point out that there is a strong scientific correlation between people who identify as homosexual and numerous health problems, both physical and mental. Nevertheless, correlation does not prove causation. Homosexuality also is correlated with higher alcohol and drug use, which themselves are correlated with health problems. From my perspective, the root cause is a hedonistic mindset that leads one toward self destructive behavior in the pursuit of pleasure.

      The example OS brought up of the supposed “gay bashing” of Mallory Owens illustrates how complicated different factors are. Mallory persuaded her girlfriend to start using drugs and to engage in prostitution to support her drug habit. So did the girlfriend’s brother beat up Mallory Owens because of her sexual orientation, or did he not like her because he did not approve of her influencing her to engage in prostitution and drugs? It could be that there are completely different reasons. This is why I am against anti-discrimination laws. We can only judge actions, not what is in the heart of a person.

  10. David,

    I think you are less than honest. You have converted many sinning homosexuals in your day. I think public policy dictates that you should continue.

  11. I’m still trying to wrap my head around you’re statement that homosexuals are a threat to public safety…..how so David?

    In 15 words or less please explain…..

  12. Ok Davivd,

    I’ve concluded that you have or think you have helped homosexuals…..by trying to convert them….. So it appears the only homosexual agenda it appears is yours….

    When responding David please keep it to 20 words or less…. You detract by your hyperbole in my opinion….

    1. OS – I started to look into your links, but like the Matthew Shephard case and most other propaganda like this, the facts clearly are unsupportive of your assertion that this was an attack over homosexuality. The victim herself, as well as the victim’s girlfriend who is also the sister of the attacker, both say it had nothing to do with homosexuality. The district attorney ruled it was not a hate crime. Nobody but the homosexual activists and you want to pretend this was a gay hate crime.

      I get so tired of being misled by people like you and gay activists who pick every little possible situation and spin it to further their agenda. Everybody should deplore violence like this, but making it an attack motivated by homosexual hatred is a lie. Such lies create a class system in our society that polarizes people like me from people like you. As long as you believe these lies, you will view me as a hater, and I will view you as a sorry old psychologist who unfortunately is deceived by propaganda.

  15. “However, I am angry with the hatred and bigotry spewed by people like you. Such hatred has resulted in many deaths, injuries and untold psychological harm. Now THAT makes me angry.”

    Yep.

  17. David,
    Argument by deflection won’t work on me. As far as Gene “influencing” me; sorry old boy, but I am perfectly capable of thinking for myself. I happen to agree with Gene on most, but not all, things because we are coming from the same place by training, by understanding of what the law is, and philosophically. As for you, you clearly don’t understand the law and are lousy at critical thinking and self examination.

    Your egocentric and authoritarian attempts to force your medieval views on others means that you and your ilk will be left in the dustbin of failed ideas, wondering what happened.

    Dr. Albert Ellis developed his rational emotive/behavioral therapy approach from the philosophy of the Stoics. He points out that people have irrational thoughts, but they can be fixed if the person is willing to put forth the effort to examine the irrational thinking. In your case, the crazy thought is that you have somehow been appointed to control the behavior and emotions of others.

    Like Gene, I am not angry with you personally, because I feel sorry for you. However, I am angry with the hatred and bigotry spewed by people like you. Such hatred has resulted in many deaths, injuries and untold psychological harm. Now THAT makes me angry.

    1. OS wrote: “… the crazy thought is that you have somehow been appointed to control the behavior and emotions of others.”

      What are you talking about here? Is this a supposedly subconscious behavior on my part? I have absolutely no interest in controlling the behavior or emotions of others. If I did, I would be for changing the laws to force them to change their behavior. Instead, I just express my opinion and share scientific evidence in support of it.

  19. Public safety is a false premise and a non-starter. The only public safety issue would be a public health interest in reducing sexually transmitted disease which the government already pursues for hetero and homosexual alike. Also, I interpret case law like a properly educated lawyer. We don’t have a “legitimate disagreement”. You’re simply wrong as a matter of legal fact, Mr. Pretend Lawyer. As every single attorney posting here has pointed out to you at one time or another.

    As to the rest of your drivel?

    A propaganda plan is a propaganda plan is a propaganda plan. That most of those plans were poorly written and semi-coherent in comparison is only to be expected. You don’t have to be smart to be an oppressor. You offer ample proof of that. The Far Right, in particular the Religious Far Right, have an definite agenda and a media plan for propagating their message(s). That’s the nature politics. That you are ignorant of this – or feign ignorance – is not surprising.

  20. 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.

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