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
Homosexuality remains vile, ugly, evil, narcissistic, and just plain wrong.
No, no, you’re thinking of bigotry. Homosexuality is neutral, like heterosexuality. Bigotry, however, is all of the things you mention above.
Michael Hrnicek challenged:
I challenge anyone to find a single political philosopher that ever endorsed the malevolent behavior. Not John Locke, Rousseau, Des Cartes, Hobbes, Aristotle, Plato, or even the godless Nietzche believed that the good of society should be entrusted to individuals who believe that unnatural sexual impulse had any place in governance or law.
~+~
Ok, how about three, Plato, (who you mention), Aristophanes, and the poet Sappho. You might want to read up on Plato’s Symposium, and see that Plato did talk rather admiringly as did Aristophanes of the virtues of homosexual relationships and counter to your argument about it breaking down societies, he laments that it is often more commonplace and accepted by the upper levels (and consequently the ruling class) of their societies.
What a disgusting opinion. There was no discrimination here, period. There was a simple decision not to participate in a homosexual ceremony. Homosexuality remains vile, ugly, evil, narcissistic, and just plain wrong. It is my right to hold this opinion. It is an opinion founded on the entire history of the human condition, and I challenge anyone to find a single political philosopher that ever endorsed the malevolent behavior. Not John Locke, Rousseau, Des Cartes, Hobbes, Aristotle, Plato, or even the godless Nietzche believed that the good of society should be entrusted to individuals who believe that unnatural sexual impulse had any place in governance or law. Up is not down, down is not up. Not even the courts can change red to blue or blue to red. There is absolute truth, and it is always right, whether or not we are wise enough to perceive it. The Left always demands compromise, and yet where does the Left defer to the rights of God-fearing individuals to practice their faith and engage in commerce accordingly? Mike, Esq.
This is ticklish. I sympathize with Bob, Esq. You don’t want your art messed with. The reasons are irrelevant.
And, if we want true free enterprise, then the barriers have to be lowered so that all of us feel free to participate. Regrettably, that means ‘all.’
One thing Americans do well is compartmentalize when it comes to commerce. “It’s just business.Nothing personal.” I encounter that attitude with stunning ubiquity among the business people I’ve been privileged to serve. It greases the wheels with an efficiency surpassed only by devotion to sports. “Roll Tide.”
In this particular case, once the photographers were hired, then different rules kick in. It’s the way things work. We all abide by it, from paying every last cent of what we are generally charged. Once you start excluding x group for y reasons, then we have a patchwork of discriminatory “rules” that no one can keep straight, and only serves as fuel on already ancient fires.
Another example comes to mind: “state’s rights.”
For anyone who ever took photography seriously this isn’t a tough one at all. This is not accommodation; this is forced expression. This is the government laying claim to the mind of the photographer.
Every photo produced by a photographer begins and ends within the mind of the photographer. The photo is merely an approximation of that which the photographer ‘had in mind’ limited by what he’s capable of getting the camera to actually capture.
The government has no power to hijack the mind of a citizen and force it to think ‘accommodating’ thoughts and images.
nick:
“He acted morally and in his own self interest. Rickey was paid to win ballgames, and Jackie helped him do that.”
Yep, in a free society men deal with other men out of rational self interest and not from compulsion.
This is important but OT: REAKING. CBS learns Pentagon making initial preparations for a Cruise missile attack on Syrian govt forces” (greenwald)
One aspect of this might be the location. I believe that a state has the right to establish the terms of non-discriminatory commerce within its boundaries, and rules/laws about who must be served in an establishment go back many centuries. This 1938 law school article may be of interest in viewing things outside of the current disputes.
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1162&context=flr
However here, the operators must travel to a location away from their place of business, and I wonder how that will figure in should this reach the SCOTUS. If at all.
Squeeky Fromm
Girl Reporter
davidm2575 1, August 23, 2013 at 12:13 pm
> 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.
I have not heard a single one, perhaps you can enlighten me.
> 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.
Black characteristics? I have no idea what this means. I will say that science has shown homosexuality existing in many types of animals, and yes, it has shown people are born gay.
> We might as well pass laws protecting adulterers from discrimination.
Don’t forget pedophiles, and those that like to have sex with non-human animals and lawn furniture.
ishobo –
The florist situation was discussed here:
http://jonathanturley.org/2013/04/11/washington-attorney-general-sues-florist-who-refused-to-provide-flowers-for-gay-wedding/
The sound, rational reasons for objecting to homosexuality is based upon first acknowledging the biological purpose of sexuality and the sex drive. That purpose is reproduction. While pleasure might be involved, the ultimate purpose is a drive toward reproduction. Furthermore, this reproduction does not happen instantly, but requires at least a few decades of parenting for each child. So sexuality is related to creating a family through marriage. Adding more children requires even more time. Raising five children in a monogamous relationship usually requires at least 30 years of commitment to a family unit. Sexuality is part of the glue that helps that happen. Sexuality is a very intimate thing that has tremendous psychological effects. Some people believe that if we treat sexuality with respect and help young people going through adolescence deal with it in a responsible way, it will lead to greater happiness for them and is better for society as a whole. There are clear societal ills caused by women bearing children outside of the family relationship. It is worse economically, as well as the children tend to have more problems with criminal behavior.
A major step toward sexuality becoming immoral is separating the concept of sex from its purpose of reproduction. For example, when sex becomes about pleasure, this usually leads to sexual promiscuity. Sex is more exciting with new sex partners. This leads to serious health problems in the form of sexually transmitted diseases. There also are the psychological problems created through repeated relationships and breakups. Ultimately, sexually promiscuous people are unhappy, and they suffer higher rates of depression and suicide. They also suffer higher rates of murder. So the overall pain and harm caused by it is considered “immoral” or wrong.
How is this related to homosexuality? Well, when talking about male homosexuality in particular, there are huge differences in the purpose of sex. Clearly there is no reproductive goal. In the language of Natural Law Theory, there is no ultimate Good as a goal, but only the immediate individual satisfaction of pleasure. When sexuality becomes about pleasure, the psychological effects are different from when the ultimate goal is reproduction. This is one reason why many homosexuals can be spotted by just meeting them without them even saying a word. It is why the word “queer” developed to describe them. They were not born with these psychological and physical differences, but rather the differences developed over the course of their developing sexuality. Some people believe that it is rational to help such individuals in the early stages of their sexual development to avoid that direction in life through education and affirmation of the rational purpose of sex.
Clearly not everybody holds to these rational concepts about sexuality, but there is nothing inherently evil or bigoted in a person who has this perspective about sexuality. Society should not prosecute people like this. It is not criminal behavior for a person to hold to these views. Society should tolerate such people and allow them to express their views, whether they express it in speech, or artistically, or in who they choose to associate with.
And yet how does one get traction on addressing a problem? Especially a social and legal problem?
By attracting attention to the problem.
Nick,
You made a very good point….
This couple were probably trying to make a political/legal point more than find a photographer. So, all the good pragmatic solutions don’t mean anything to them. You would think they would have focused their efforts on getting gay marriage legalized. There is a dissonance. They are making a big deal about a wedding photographer when the state does not allow them to marry.
Bill
The distinction here of whether it is right or wrong is not really relevant. It is the law that matters with regard to commerce. The state law in NM and here in WA is that if an organization or person elects to engage in commerce in consideration for money, goods, or services it is required as a condition to engage in such transactions to provide non-discrimininatory practices. It is the same as that if they choose to engage in employment they must submit to workers compensantion and industrial safety laws.
The photographer would be within their right to refuse to take anyone’s picture if they were not engaged in commerce or where shooting pictures as a hobby for example.
You are certainly right that the wedded couple would be better off to find another photographer that might be more to their liking, but the problem comes where
Dredd, you beat me to it way back in your first posting:
“Would the logic and result be the same if all the facts were the same except the couple getting married were a white woman and a black man, or a black woman and black man?”
The fact that this is a case decided on a basis that relies on New Mexico’s interpretation of human rights and not a clear statement of the nations view of civil rights is, as such decisions ever are, disturbing.
A short, concise federal law would put an end to this kind of thing and a whole bunch more.
As usual, I agree with you. As photography is interpretive, I wouldn’t want people photographing my wedding who thought my Union was perverse as they would not be inclined to take the pictures in the best light. however, I agree with this Court’s decision & the decision of the human beings to bring the suit in the first place. These people need a suitable kick upside the head for pretending to know the mind of God. God didn’t create religions, human beings did– any more than God or the Holy Spirit wrote the Bible. Men in the Catholic Church decided what went in the Bible and what didn’t.
There are penguins and rats that are homosexual. Most scientists think that’s a way of population control. but you certainly are not going to convince me that they made a deliberate choice to be that way. they are as they were created.
Love, Maggie
P.S. thank goodness there are people like you in the world who are ethical and whose think things through to the end. And sometimes at the end there are only more questions. that is certainly the case in this instance.
Interesting…. The email account has been requested to be freed from spam… I’ve asked for it to be freed or unleashed… Any reason they are still sitting in the spam filter….l
Follow….
How about I claim a religious objection to serving Christians? You know, for burning so many pagan ‘heretics’ at the stake. How’d that be, Jonathan?
I’m not a lawyer, but it seems to me that forcing the photographer to shoot a wedding which s/he finds morally objectionable is simply wrong. I don’t care what the court says. It’s wrong. Why would a same-sex couple want a photographer like this anyways? It seems to me the couple should find a different photographer – that is the better solution here.
GuideDogsRus get hired to help out at a blind guy get together. Russo the Bassett objects to the Meow Mix commercial being shown on the screen and walks out with his leash. Violation of the law?