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
You misunderstood Marco….
It’s the Hells angels your doing business with…. They are the proprietor…. You wanna tell one of them that they did crappy work?
AY: It’s the law. Period. If the quality of the photos of the Hell’s angels shoot lack the desired quality, then the Hell’s Angels can ask for its money back. Simple.
So Marco,
You really don’t care about quality… You just want a result…
So according to your logic Bob, esq, the government cannot require a person engaging in commerce to not serve someone in a gay lifestyle because the merchant has a moral objection to it.
So how do you rationalize that it is also legal for a merchant who has a moral objection against serving black customers because he views them as being vile. Back to Jim Crow is what many would say in that case.
By your defense of this photographer as having the authority to reject these customers due to Expressive Thought in Pictures you could say that someone cutting hair, making custom paint jobs on cars, and pretty much any other service industry would be given full license to discriminate against everyone.
And also about Symposium, you might also want to read the part where Plato suggested having an army consisting entirely of same sex loving couples. And how can you say that Plato does not discuss the virtue of homosexual relationships and then acknowledge that plato discusses the virtues of love between a man and a boy?
mahtso wrote: “Should we punish them for the way they were born?” Bigots aren’t “born that way.” Bigots are bigots because they “learned” to be bigots.
AY: As long as what the Hell’s Angels was doing was legal, then yes, the photographer would be required by law to do the photo shoot.
“The issue here is are people who are repulsed by homosexuality entitled to their thoughts?” It is my understanding that those who are so repulsed are born that way. Should we punish them for the way they were born?
Marco,
I’d like a response…
Bob wrote, “The issue here is are people who are repulsed by homosexuality entitled to their thoughts? Is the government empowered to force a citizen to express thoughts contrary to what they actually feel?”
No one is saying/writing that this business can’t express how they ‘feel.’ What the law says is that this is an LLC, hence it is engaging in commerce. Therefore, as it is engaging in commerce it can not discriminate against this couple.
Not for nothing, but most of the posts here are confusing the specifics with the over all general problem.
The issue here is are people who are repulsed by homosexuality entitled to their thoughts? Is the government empowered to force a citizen to express thoughts contrary to what they actually feel?
This is what you’re asking the photographer to do.
Photography is expressive thought in pictures. The government cannot force the mind of an individual to be ‘accommodating.’
David claims, “affirmation of the rational purpose of sex.”
Only you get to decide this for yourself. When you try to make this decision for others, or suggest the State do it for you, that is where you have consistently run into trouble.
That and your arguments come from some mystical fairy-tale land where the gay people are gay but don’t have all that bothersome sex, as just the thought of two men or two women, or genders there between, engaging in consensual touch, which may lead to sex, often while in love, seems to send you around the bend. I really suggest you stop engaging in these behaviors if it causes you so much trouble.
Any other sex is simply none of your business. Try to act like it.
Darren Smith: “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.”
Darren,
Plato’s Symposium does not discuss “the virtues of homosexual relationships.” It discusses the virtues of love in various forms; one of which being the love between a man and a boy.
It is a discussion on the various forms and metaphors for the spirit of love. If you’re going to cite Plato as reason to accept homosexuality in current society, then you might want to cite the Symposium as illustrative of the many different forms the spirit of love is embodied; i.e. making the sexual act nearly irrelevant. Thus the term “Platonic love.”
Marco…..
Another part of common sense…. The Hells Angels is a registered group protected under state law in some states as well…. You wanna do business with them?
Why is this so difficult for many to wrap their heads around??
Fact: the photographers were incorporated via LLC
Fact: the LLC engaged in commerce by providing photo services
Fact: 2 people who happened to be a homosexual couple desired a service provided by the the proprietors of the LLC
Fact: the proprietors of the LLC refused to provide the service because of their religious beliefs
Fact: the proprietors of the LLC broke the law – the NMHRA – and should be given the sanctions of that law.
QED
Marco wrote: “Why is this so difficult for many to wrap their heads around?? … Fact: the proprietors of the LLC broke the law – the NMHRA – and should be given the sanctions of that law.”
I’m not sure this last fact is a fact. They did not break the law. The law says that they cannot discriminate based upon sexual orientation. I don’t think Elaine cares much about their sexual orientation. She just did not feel comfortable being forced to celebrate with them their commitment ceremony. The court obviously interpreted that as being discriminatory against their sexual orientation, but I think the court got it wrong. It was the sexual behavior that ceremony celebrates that probably bothered Elaine the most. I also think the law gets it wrong because it is too easy to confuse sexual orientation / sexual preference with other sexual issues that are involved.
Here’s another problem with the law. Pedophilia is defined by psychologists as a sexual orientation. If Elaine did not want to photograph a pedophile and his young partner doing a commitment ceremony, would she likewise be prosecuted? The laws are getting self contradictory and going to cause a lot of problems.
David Wrote:
“Wrong. There are no protected classes based upon behavior.”
~+~
And what then would be of religion? Are people born belonging to a particular faith, that is, is it genetic? How can you classify a religion as not being based upon someone’s behavior? Religion is classified the same in this statute as other protected classes.
Darren wrote: ” How can you classify a religion as not being based upon someone’s behavior? Religion is classified the same in this statute as other protected classes.”
Religion represents a belief system, not a specific behavior. Many people are indeed born into a religious system. This is the idea of infant baptism in many religious sects, or circumcision among Jewish sects. There is historical problem of discriminating against others because they belonged to a particular religious sect. Remember Queen Mary’s attack on Protestants when she ascended to the throne of England? Because the mind ought to be free to decide in matters of religion, it follows that the law must not allow for discrimination against others on the basis of religious affiliation.
I would be curious to know the outcome of the case if the situation was one where the Westboro Baptists were the ones wanting a photographer to film their antics at a funeral of a dead American soldier. Should not the photographer have the right to decline? I think so. Technically, it might be argued that it would be discrimination against them on a religious basis, but I think the real objection concerns the specifics of the behavior taking place rather than their religious classification. Do you see what I am getting at?
Also is forcing a religious person to work a gay wedding when it violates their religious beliefs? That is violating THEIR rights.
I am torn on this. In some ways people should not be discriminated against and others a business should not be forced to work for people they do not want to. So how is the happy medium found? Allow privately owned businesses to serve who they want I suppose. Or limit it to offsite work maybe.
What if the wedding is a nude wedding. Should they be forced to work it? Can of worms. Imo a private business really shouldnt be made to do what they do not want.
David,
Another question… Would you acknowledge that all fetuses are started out as female…..
David,
Do you have a god that other folks can see? Just curious…. You have a lot of anger or a god of my choosing….
The crux of the problem is that “private contracting” was abolished when individual people determined to become “federal personell”. Every person with a SS number IS as a matter of law government personell (see def. of fed personell at 5 USC 552 (a) (13)) subject to congressional policy including discriminaton policy. The Court in this case concluded that because the photographer was engaged in a public accommodation they were subject to the law, ie. policy. As a member of the corporate socialist body politic the policies of Congress are binding upon you as a corporate member. As a “public” ‘accommodator, you are no longer at liberty to engage in private contracts with others as you see fit. You are given the illusion that your contracts are “private”, however, because you are acting in the capacity of a federal employee, every contract you engage in is of a public nature, and subject to public oversight. Maybe one day people will realize that socialists aren’t free.