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
Gene,
I started to reply to that myself, but there are so many logical fallacies and so little time.
James K.,
A NSFW present for you via Dr. Gonzo . . .
https://www.youtube.com/watch?v=pCjJy9WUrNU
Signed,
Raoul Duke
I see this CULTural shift as being one where the homosexuals can force the people who have a business but not want to do business with THEM, to shut it down through State Charter forfeiture, and effectively starving them out, at least in that state, from working in that trade. In essence, when ONE set of homosexuals find some business somewhere that prefers to NOT work with them, be it florist, bakery or photographer, they put up a stink about it, which alerts the whole state’s population of gays, who would then rush to put in THEIR ORDER, and when denied, sue the business, and they’d have to literally shut their business doors and move. This is how they will take over the entire nation, through Judicial Activism, Lawsuits, Public Media Bashing and State Charter Forfeiture. Next will be gays leaving their gay churches and FORCING all the rest of the churches that preach the real truth to SHUT DOWN for not performing or allowing a ceremony in their buildings, and having the IRS shut down their 501(c)(3) status, thus eliminating the financial support through donations.
David continues to whine, “The entire homosexual rights argument is based on conflating sexual orientation with immoral sexual behavior.”
More baseless attacks. Gay people are not afraid of it any longer. Deal.
E.B.,
That would be retching, not wretching.
Wretching is what you’re doing now. 🙂
Vestal Virgin
Slam dunk, New Mexico Supreme Court. 🙂
You should really get that looked at by a Doctor, Easy.
And why would anyone want to force by commerce into a ceremony where the natural urge to throw up continually would interfere with said event? Photographer is there, with cameras, but OOPS, SORRY, I JUST GOT SICK FOR SOME UNKNOWN REASON AND COULD NOT STOP WRETCHING……….NOW PAY ME MY APPEARANCE FEES….OR LET ME GO FROM THIS SCENARIO AND WE PART WAYS, BUT I JUST CANNOT STOP BARFING, AND WHEN I’M OUT OF BARF, THEN IT’D JUST BE DRY HEAVES UNTIL THE CEREMONY IS OVER….AND THERE IS NO WAY I CAN HOLD THE CAMERA STEADY AND FRAMED WHILE DRY HEAVING……….
DavidM: “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.”
___________________
That kind of hairsplitting undermines your argument. The photographer should not have a right to discriminate on the basis of sexual orientation or behavior. It’s worth noting that the photographer chose to fight this battlefield on which to fight. He could have simply said he was too busy. Now, it looks like he’s going to be busy photographing a gay wedding.
RTC wrote: “The photographer should not have a right to discriminate on the basis of sexual orientation or behavior.”
Wrong. There are no protected classes based upon behavior. A person has the right not to facilitate criminal behavior, and in the same way, if a person is engaged in behavior that is legal but perhaps otherwise considered unethical, the same liberty should exist not to be involved with it. Unfortunately, the law has taken a wrong turn now and forces individuals to cooperate with behavior they consider unethical or immoral.
Some people in this very thread actually argue for the photographer to commit the unethical practice of lying in order to avoid the repercussions caused by this bad New Mexico law. If this does not help someone clearly see how wrong this law is, I’m not sure what will. The moral compass of society has been completely destroyed by the homosexual agenda.
I think he has a right to refuse to work at a gay marriage. Has anyone stopped to think that gay marriage could be totally against his morals and religion? Gay marriage was not right 100s of years ago and it is still wrong today.
“Homosexuality remains vile, ugly, evil, narcissistic, and just plain wrong.”
“defer to the rights of God-fearing individuals to practice their faith and engage in commerce accordingly”
The problem here is that you are god-fearing, not god-loving. An actual loving person would not use this language. It has also been my wide experience that men who engage in this sort of talk tend to be over-fixated on an issue that does not effect them at all. This fixation is almost always driven by a certain envy, as if gay people who celebrate their sexuality are somehow having their cake and eating it, So out comes the baseless badmouthing, using “the long history of humanity where we were allowed ourselves to be vile” as the reason to keep bludgeoning gay people, often to death.
What has changed is there are no longer any institutional reasons for this language to continue as gay people have clearly won this battle, and no one is going back into the closet. Use all the filthy words and make any baseless attack you like. Trouble is, you’ve said your vile stuff and none of us has gone anywhere, and we still have to find a way to get along. The finite geometry of a sphere really demands it.
Now what?
We at the dogpac asked Donald Trump some questions about this situation and he said that the right of religion trumps any right of a bent person to require one to photograph him and him porking or kissing on a sacred alter. In interpreting the Constitution a judge must employ the rules of five card stud. This dumb court opinion is the worst travesty of justice since
Dredd Scott. I am surprised that it did not come out of Saint Louis but instead came from New Mexico where they should know better. Now you people of New Mexico stand right up there at the alter with the people of Old Mexico or Saint Louis and they don’t call it Mizzoura for nuthin. That court out there in New Mexico cited every thing rotten in Denmark and they sure don’t know nuthin bout birthin babies because two wrong prongs wont get that one right. If you know what I mean JellyBean.
As one who has been subjected to Doggie Reparative Therapy for doing simple things like humping stuffed animals I can relate to the photographers who are forced to photograph gay people kissing on the alter. In my religion no one is allowed to kiss or fornicate on the alter. The alter is sacred ground. So in my neighborhood, there is a gay couple and all I can say is that they have a lot of dog poop in their yard. If dogs could, they would give Milnot, but they can’t, so they poop instead.
@MikeA:
I suspect it is a like a puppy I had when I was a kid, who used to mount this stuffed skunk with a squeaky paw. My mom was constantly running it through the washer. However, when he got a little older and some pheromones drifted over the fence from Princess Leia, the golden lab next door, then he forsook Stinky forever. My parents were glad they didn’t have to put him into Doggie Reparative Therapy.
Squeeky Fromm
Girl Reporter
Squeaky:
There are several possibilities. Harry may be bisexual, or he may never have been gay to begin with and was merely enjoying the companionship of the only available member of his species. If he were truly gay, all of Linda’s considerable feminine charms would have been ineffective. In any event, Mr. Besen’s reaction is a tad overwrought.
Well put, Gene. Just as the accelerating rate of climate change is challenging the ability of ecosystems to adapt, the enormous advances in the scientific understanding of human sexuality and the origins of life during the last century is challenging the ability of certain religious sects to reexamine their theological tenets. That has produced a raging Counter Enlightenment to battle in the new century.
I think it depends on how “homosexual activity” is defined. The gay lobby uses the term rather broadly and anthropomorphically. Just because animals are friends, does not make them gay. To wit:
http://www.conservapedia.com/Homosexuality_in_animals_myth
Squeeky Fromm
Girl Reporter
And your “argument” such as it was, Michael Hrnicek, begs the question that homosexuality is an “unnatural sexual impulse” when the facts of science based upon observation, quantification and analysis of data not only inform us that it is natural but fairly commonplace in Earth’s biome. Not just in a statistically significant minority of the species homo sapiens sapiens either, but in literally hundreds (into the thousands) of species. You should really keep your conclusions out of your premises. Bad logic is poor argumentation.
Gross bigotry aside, if you’re a fence builder and the Westboro Baptist Church wants to hire you to build a fence, should the government force you to build it? If you’re a caterer and a White Power organization wants to hire you to cater an event, should the government force you to do so?