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
A Christian woman photographer shows up at a Muslim wedding and they insist that she wear a tent head wrap. She says: “no. I am ready willing and able to film but not wear a tenthead wrap.” I side with the photographer.
Dessert is on the menu… I’m obese… if I order it, will you serve it?
Photography is on the services list… I’m gay… take my picture, please?
A ceremony can’t be a protected class.
Only people can be a protected class within the context of civil rights law.
This legal rationale probably derived from the Civil Rights Act. For example if an African-American family drove across country, in some regions they were denied service in restaurants, hotels and even restrooms. If they used the restroom on the side of the road or slept in their cars they were penalized for that also and the local police didn’t protect the African-Americans but the private businesses.
The good news is this is likely a short-term issue for gay couples primarily in small towns, where they could literally not have a single business in that locality willing to serve them – forcing them to take their wedding dollars to big cities or other localities in order to have a decent wedding.
Easy, just stop photographing weddings as a part of their business.
Juliet, We may agree more than you think. I would never take the position of this photographer. I think what this photographer is doing is wrong. the question is, is it illegal? I lean toward it is.
When I taught high school history I spoke about how MLK, Jr. and Malcolm complemented each other. King was about the laws, changing the laws and enforcing the laws. That was important. But, Malcolm knew if you want equality in a capitalist society, true equality will not be accomplished by laws or their enforcement; it will come about by education, wealth, owning your own businesses, supporting your communities businesses. People will act, vote, purchase, sell, etc. in their own self interest. If a white business was treating their black customers badly, then you boycott their business. More importantly, black people were encouraged to start their own businesses and not be beholden to white folk. With this is mind, that’s why I really like Platos Caves solution. It is very Malcolm like.
Branch Rickey was a good man who saw that the gentleman’s agreement that no black ballplayers be allowed in MLB was morally wrong. However, his putting his butt on the line and signing Jackie Robinson wasn’t because of any change in the unwritten rule. He signed Jackie because it was righteous and because Rickey knew it would give him a competitive advantage, which it indeed did. He acted morally and in his own self interest. Rickey was paid to win ballgames, and Jackie helped him do that.
This is a tough case, but I believe businesses should be required to serve all members of the public. They may not like certain segments of the public, but to allow them to draw their own line would allow them to say the same things to Blacks and Latino couples, wouldn’t it?
rafflaw wrote: “… I believe businesses should be required to serve all members of the public. They may not like certain segments of the public, but to allow them to draw their own line would allow them to say the same things to Blacks and Latino couples, wouldn’t it?”
No. This really is the rub, because homosexual behavior is the objection, not some genetic aspect of their birth. The entire homosexual rights argument is based on conflating sexual orientation with immoral sexual behavior.
It is interesting that the protected class in law is always “sexual orientation,” something for which there has NEVER been a law created to criminalize. All the anti-homosexual laws ever created concerned actual sexual behavior, not how a person thought about sex in their mind. Even though the law defines “sexual orientation” as the protected special class of people, in practice the prosecution is NEVER about sexual orientation, but always about actions related to it. In this particular case, it is about a photographer who did not want to be involved in celebrating the union of a same sex couple because in their mind it was forcing them to approve of same sex behavior, something their conscience considered immoral.
The racial issue made sense originally because blacks really were discriminated against in an evil way. People stereotyped them in a way that led to them being denied service in public restaurants, being forced to use different water fountains or to sit in the back of the bus, etc. Job discrimination was reasonably assumed as responsible for them being an economically depressed group of people. The law helped correct these injustices, mostly by putting a spotlight on the problem and causing people to agree that this kind of discrimination is wrong.
In contrast, the issue of discrimination against homosexuality is poorly framed. There is only a partial genetic component that is not well understood. Unlike race, nobody is born gay. There are a combination of factors including environment and cognitive functions that result in human sexuality, including homosexuality. No homosexuals are being forced to sit in the back of the bus, or being forced to use different water fountains, etc. Homosexuals are not an economically depressed group of people due to job discrimination. There really is no reason for laws like this except as a way of forcing all of society to accept and approve of homosexuality as sexually moral behavior.
Another level of complexity arises in this case, because photography involves artistic expression. Regardless of efforts to try and make this entirely about commerce, people choose a photographer for an event like this based upon other photographs they have done. In this particular case, the couple had no trouble getting another photographer to do the job. We should acknowledge that homosexuals are among the most creative and artistic class of people on the planet. I see this case as nothing but a same sex couple using the law to bludgeon someone who does not agree with their sexual choices. That is injustice, and when the law is used for unjust purposes, something is wrong with that law.
Please. You indicate a lack of knowledge of the hideous behavior directed toward gay and lesbian people, including murder (just recently on the streets of NYC)’, beatings, all manner of psychological and physical violence. As for job discrimination, until recently, gays and lesbians could not serve openly in the armed services. Many homosexual persons can be fired from jobs with no legal recourse. They are the butt of so-called jokes and stereotyping as surely as other people who have suffered such harm based on racial classification. “No one is born gay?”. Do you believe that no one is born heterosexual either?
Susan Apel wrote: ““No one is born gay?”. Do you believe that no one is born heterosexual either?”
No. Sexuality develops after birth.
“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 anti-discrimination laws.”
Jewish Deli – – is a Speciality Shop – – name alone displays the message to not expect to get a pulled pork sandwich.
Baker – – We Specialise in the Wedding Celebrations of Male-Female
Message is the same as the Jewish Deli – do not expect to receive what is not on the menu
I am unable to download the opinion for some reason.
“neither can a kosher deli be required to serve non-kosher food.”
deli serves religious belief
Translates to neither can a photographer who serves
M-F be required to serve S-S
Court legitimises the SS by requiring public participation
Court legitimises the M-F-F by requiring the same public participation
Neil Davis asks, “Just wondering how we should determine one’s sexual orientation.”
Why do you need to know?
Juliet: If a man is born with an innate inclination toward racism and white supremacist political ideology, does that mean that he should be protected by law from being discriminated against by a business owned by African-Americans?
Neil: Not even a very interesting straw man, and your “scenario” doesn’t provide enough information.
In response to the halal, kosher, vegan comment someone else made. Those businesses would not be allowed to discriminate against people of other religions. But just like car dealerships are not required to stock bicycles, neither can a kosher deli be required to serve non-kosher food.
Jim Erickson:
Interesting point but in the late 1970’s photographers were granted copyright ownership over their images unless they “sold” their ownership (in writing) to their customer. So even if a married couple pays for wedding photography, the photographer still owns the copyright.
Maybe this has since been amended by Congress since the 1970’s but don’t think so. Photographers own the copyright similar to musicians and voice-overs for radio commercials.
I think it infringes upon the artistic expression of the photographer. With this ruling, one must ask if what citizens have been told wouldn’t happen will now be required. I refer to the possibility of mandating that a church leader marry LGBT partners against their beliefs. Artistic expression, in my opinion, can be quite spiritual because it involves the spiritual or emotional intuitions of the artist. I would not refuse to show such prejudice for LGBT partners if I were a photographer, but I defend the right of photographers to do so.
Logical extension is clear
Muslim, Jewish, and vegan deli’s shall be required to serve pork products
to handle, cook and serve non-kosher meats for those who are dismayed at the thought of going to another shop for service.
Sign in the Shops window
We are unsure as to the framing
a photo of same gender commitment . . .
Walmart is just down the street. . .
@James Knauer – Just wondering how we should determine one’s sexual orientation. Is there a lab test, or do we just ask people what their sexual orientation is, or do we determine it ourselves based on past and present behavior?
Neil Davis wrote: “Just wondering how we should determine one’s sexual orientation. Is there a lab test…”
This is an excellent question. There is no test. I suspect also, in fact, that the Huguenins did not object to sexual orientation, but rather to the related homosexual behavior and perhaps the idea of a same sex commitment ceremony. How is this prosecuted if the defense becomes that sexual orientation had nothing to do with it, but rather it was the commitment ceremony that they found objectionable. If the law does not specifically list same sex commitment ceremony as the protected class, would they still be in violation? Would love to hear from the lawyers about this question.
I would like to see the results if they forced someone like Salvador Dali to paint a portrait of the wedding couple.
Davidm2575 insists, “the price of doing business is that you don’t get to pick and choose your customers. Who says?”
The law.
He then goes on to claim, “All of it is based upon an unproven ideology that people are born gay, when the science proves nobody is born gay.”
The huge problem with this statement is people who know they are gay and have known it all their lives have never needed science to tell them these things. It’s not an “ideology,” It is a fact of their lives. You focus on science when it is convenient, yet there is nothing in science which ends in the outcome “moral” or “immoral.”
You make up these insults because you (allegedly) suffered trauma interacting a very tiny number of gay people. All you are doing is dishing out what you perceive you received. How is that any better than the behavior you claim gay people engage in?
Because it sounds exceedingly petty and self-serving.
“they express that message only to the clients and their loved ones, not to the public.”
‘primary concern is that anyone observing the photos could rationally conclude that the photographer was part of the overall message’ to which he clearly chose to not be
Those individuals who are not the direct clients are the ‘Public’ be they
One or a Thousand – by what number then does public become private.
Bad ruling to say the glue that binds is the glue that says
Let Them Eat Cake
Unless this glue covers all aspects of Loving and Committed relationships
e.g. Polygamy then the ruling itself is but biased dribble
@platosC:
Right! Which attitude, will change more minds quicker than all the lawsuit stuff and confrontational stuff.
Squeeky Fromm
Girl Reporter