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
Bob Esq: I fail to see the point of your argument. Are you saying that if the photography studio was a partnership or a limited partnership the result would be different?
And what if the LLC elected to be taxed as a partnership?
Do you see the integrity problem your argument suffers from?
The legal entity – LLC, partnership, incorporation – is irrelevant. My argument’s integrity is in question? Surely you jest.
Bob, Esq.
“Feelings” one thing. Acting on those feelings is what got this LLC in trouble with the law of New Mexico.
“Pedophilia” is not a “sexual orientation.” Sexual orientation is limited to heterosexual, homosexual and bi-sexual.
“Pedophilia” is a sexual behavior. Many peer-reviewed studies show that most pedophiles are heterosexual.
Regarding homosexuality, everyone seems to be missing the point about equality.
It’s a two way street.
Accordingly, when homosexuals assert their right to feel the way they do without being treated unequally, it follows that the remaining “breeders” among them are entitled to feel the way they do as well.
Uh, just a minor point, but I don’t think Plato was an advocate of homosexuality? IIRC, he didn’t like it at all. Aristophanes is a little iffy, but he was a playwright. Kinda like Tennessee Williams, sooo who cares. But, you all might want to double check Plato. FWIW.
Squeeky Fromm
Girl Reporter
davidm2575
The LLC (as formed by Elaine and her husband) broke the law. That was what the court found. Was the couple’s behavior – a commitment ceremony – against the law? No. Again, “feelings” do not matter in the eye of the law. This is reinforced by the fact that an LLC is a legal entity and can not, by definition, have “feelings.”
As far as your last paragraph: why are you clouding the issue with irrelevant (to this case) statements?
Brad S.,
Good points all; but I maintain that the government has no power to compel thought or expression out of an individual no matter what business model he happens to operate under.
Reblogged this on SiriusCoffee and commented:
“In general, freedom of association includes the right to be free from compelled association. In Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977), and Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), the Court held that freedom of association is unconstitutionally burdened where the state requires an individual to support or espouse ideals or beliefs with which he or she disagrees.”
I’m sure that for every law that I throw out, you can find one (or a dozen) that will contradict it. And that is my point – the law is very contradictory, and just arguing the law only ends in the appeal to authority (i.e. judge/jury).
“There is no worse tyranny than to force a man to pay for what he does not want merely because you think it would be good for him.” ― Robert A. Heinlein, The Moon is a Harsh Mistress
I believe you could make a case that “pay” in the above quote would also include support, such as time and materials.
So in the end, what have you achieved by forcing the photographer to compromise his moral values by supporting an institution he finds reprehensible? He will most likely do a good job because he’s a professional, but he now realizes that the authority of the state is capricious. He becomes a libertarian.
Maybe it’s not such a bad thing after-all?
Marco,
I fail to see the point of your argument. Are you saying that if the photography studio was a partnership or a limited partnership the result would be different?
And what if the LLC elected to be taxed as a partnership?
Do you see the integrity problem your argument suffers from?
Darren: “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.”
No Darren, I said the government cannot compel thought or expression.
Darren: “o 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.”
Because serving food and drink is not expression; it’s mechanical.
Darren: “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.”
Riddle me this Darren; can you compel a journalist to author a piece in contradiction to his actual beliefs?
Darren: “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?”
Darren,
When I cite Plato to shut up rabid right wing Christian moralists, it’s to show that said philosopher was revered by Christian philosophers who were capable of looking past the physical and acknowledging the superiority of the spiritual message.
Today, Plato and Socrates would be considered pedophiles. Yet, since they don’t live in the present, we don’t cast that judgment upon them and simply look towards the wisdom of (Plato’s) writings.
Bob, Esq: This was an LLC that refused service to a couple. An LLC is a legal entity; it does not have “feelings” or “inclinations.” Besides, they are irrelevant in the eyes of the law.
Marco,
It has nothing to do with bigotry. The acknowledgment of equal rights does not necessitate the ignoring of one’s natural inclinations.
Actually marriage laws are a state issue….
I would presume that they are at least in the states that they’ve filed lawsuits….
AY: Are the HA a registered company? Probably not.
AY: Hey, its Arkansas, what else is there to say. Well, there is: I bet that there are federal laws prohibiting this.
Look, none of us are working the bunko squad out of north Hollywood! Let’s stick to facts art hand.
“In general, freedom of association includes the right to be free from compelled association. In Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977), and Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), the Court held that freedom of association is unconstitutionally burdened where the state requires an individual to support or espouse ideals or beliefs with which he or she disagrees.”
I’m sure that for every law that I throw out, you can find one (or a dozen) that will contradict it. And that is my point – the law is very contradictory, and just arguing the law only ends in the appeal to authority (i.e. judge/jury).
“There is no worse tyranny than to force a man to pay for what he does not want merely because you think it would be good for him.” ― Robert A. Heinlein, The Moon is a Harsh Mistress
I believe you could make a case that “pay” in the above quote would also include support, such as time and materials.
So in the end, what have you achieved by forcing the photographer to compromise his moral values by supporting an institution he finds reprehensible? He will most likely do a good job because he’s a professional, but he now realizes that the authority of the state is capricious. He becomes a libertarian.
Maybe it’s not such a bad thing after-all?
http://www.foxnews.com/story/0,2933,293636,00.html age of consent in Arkansas…..
It’s legal in Arkansas to marry off an infant…. Hence, there is no age of consent on the books…. It’s legal…. What’s ethically wrong with that picture….
Go for it… Tell me how that works out for you….
I see the reasoning and rational in the opinion…. I think it’s sound…. But sometimes common sense should over rule what’s legal…..