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
So Marco, what happened to this argument:
“It is a form of expression, a form of expression that was offered as a service (as you noted) by a legal entity, the LLC, that was “legalized” by the State of New Mexico.”
Pick an argument and stick with it; will ya?
Bob, Esq.: “The issue here is whether the state can compel thought or expression.”
Again, the state is not compelling (or preventing) Elaine and Jonathan or Elane Photography to (or from) think(ing) or express(ing) anything. It’s their refusal to act.
Marco,
Under your argument, a sole proprietor would have first amendment rights that other business formations would not.
That’s an Equal Protection violation.
Bob, Esq.: “Your business entity argument is wholly unpersuasive.”
The opening paragraph reads, in part, “….the owners of Elane Photography, Jonathan and Elaine Huguenin.”
Even if Elaine was a person – not as a part of any form of incorporation – who was formally offering photo services (and not as “I do it as a hobby for friends and family”) she would be subject to the NMHRA. And, she would be required to pay the $6000+ fine.
davidm2575,
Not for nothing, but the issue isn’t pedophilia.
The issue here is whether the state can compel thought or expression.
Marco,
Your business entity argument is wholly unpersuasive.
Bob, Esq.: “So photography is not a form of expression?” It is a form of expression, a form of expression that was offered as a service (as you noted) by a legal entity, the LLC, that was “legalized” by the State of New Mexico.
Darren: “You still do not get it. The expression that you so adhere to is IRRELEVANT when commerce is involved.”
I see. So freedom of speech and freedom of the press are irrelevant once you’re paid for your expressive product? So Journalists and photographers are protected so long as they work for free?
Darren: The business engaged in providing a SERVICE (the photography) and a PRODUCT (the photographs and / or electronic files) in exchange for money under the authority of a business license within the jurisdiction of a state that codifies that businesses may as a condition of being duly licensed is required to provide products or services without discrimination against groups defined under state law and gay couples are included in that list of groups.
So photography is not a form of expression? Ansel Adams; just some dumb ass recording device; right?
See above.
Darren: Then you attempt to deflect an address to your unfounded logic by claiming that other services are “Mechanical” in nature and therefore different than this expression issue.
So how is serving drinks, epistemically speaking, a form of expression? Do soda machines have first amendment rights too?
Darren: To allow others to do as you would suggest just opens up the door to whitttling away at other ‘s rights until it becomes a hodgepoge of exceptions and discriminations that in the end nobody will benefit from.
No Darren, to allow what you suggest is to invite state indoctrination. The state determines what thought is acceptable; the state determines that you will think and express the thoughts it says you should think and express. I don’t need a first amendment to tell me that’s tyranny and categorically outside the purview of the government’s specifically enumerated powers.
Darren: And I will answer your question about a journalist. Well, last time I checkedk I didn’t see many ACME Journalist storefronts on the main drags of New Mexico towns. so I don’t see the equivalence here. But if there is then they are still required to obey state laws here.
So the NY Times is not a corporation?
Bob wrote: “No Darren, to allow what you suggest is to invite state indoctrination. The state determines what thought is acceptable; the state determines that you will think and express the thoughts it says you should think and express. I don’t need a first amendment to tell me that’s tyranny and categorically outside the purview of the government’s specifically enumerated powers.”
Bingo! This is the problem.
Bob, Esq. “Just as you can’t compel the photographer to drive around with a license plate saying “Live Free or Die”; so to you cannot compel the photographer to express himself in other ways he objects to.”
“Express” is different from “act”: the former is protected by the 1st amendment, the later must comply with the law. The photographer could have stated, “I hate ‘fags’,” (where “fags” lesbians or gay men) or “What you do disgusts me.” That would have been protected by the 1st amendment, but it would have been irrelevant. BUT, the photographer was found to have violated the NMHRA because the photographer, doing doing business as an LLC, refused to photograph the ceremony.
David sez: “Pedophilia is defined by psychologists as a sexual orientation.”
*****************************************
Say what? Pedophilia is not a sexual orientation. Next time, before you claim you know what psychologists say, you might want to do some fact checking first. What was your source was for that statement?
Here is a source for you. This site will tell you what psychologists say.
http://www.apa.org/
Yes Marco, the first amendment prohibits the government from compelling expression.
See Wooley v. Maynard
Just as you can’t compel the photographer to drive around with a license plate saying “Live Free or Die”; so to you cannot compel the photographer to express himself in other ways he objects to.
Bob, Esq:
You still do not get it. The expression that you so adhere to is IRRELEVANT when commerce is involved. The business engaged in providing a SERVICE (the photography) and a PRODUCT (the photographs and / or electronic files) in exchange for money under the authority of a business license within the jurisdiction of a state that codifies that businesses may as a condition of being duly licensed is required to provide products or services without discrimination against groups defined under state law and gay couples are included in that list of groups.
Then you attempt to deflect an address to your unfounded logic by claiming that other services are “Mechanical” in nature and therefore different than this expression issue. One could argue that playing music in a band that is fore hire is performing a mechanical service as you would statebecause it is rather lockstep in playing a musical score exctly as written on a chart or they can say it is an “expression” . But you don’t realize the state law does NOT MAKE a differenciation between the two. I challenge you to find a list anywhere in state law of New Mexico which types of business may discriminate against protected groups on the basis of Expression.
I will save you the trouble. It does NOT exist because the law is designed to protect all persons within that list of protected groups so that the may enjoy all services offered equally within the state economy.
To allow others to do as you would suggest just opens up the door to whitttling away at other ‘s rights until it becomes a hodgepoge of exceptions and discriminations that in the end nobody will benefit from.
And I will answer your question about a journalist. Well, last time I checkedk I didn’t see many ACME Journalist storefronts on the main drags of New Mexico towns. so I don’t see the equivalence here. But if there is then they are still required to obey state laws here.
Darren Smith wrote: “… businesses may as a condition of being duly licensed is required to provide products or services without discrimination against groups defined under state law and gay couples are included in that list of groups.”
Darren, the law actually does not list “gay couples” as the specially protected class of citizens. The closest category is “sexual orientation.” I am seriously wondering if this makes any difference at all to you?
Keep in mind that New Mexico law does not accommodate same sex unions of any kind, whether it would be called marriage, domestic partnership, or civil union.
Bob, Esq. “Can you compel a journalist to author a piece in contradiction to his actual beliefs?
Answer: No; because the government is not empowered to compel thought or expression in or from an individual.”
That’s called “freedom of speech.” That, as I’m sure you are well aware, includes the actions of the press.
Marco,
Can you compel a journalist to author a piece in contradiction to his actual beliefs?
Answer: No; because the government is not empowered to compel thought or expression in or from an individual.
bob, Esq.Bob, Esq: “Choice of business entity does not empower the government to compel thought or expression in the individual.”
But it can and does govern actions of its citizens and businesses.
Davidm2575: “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.”
Why cloud the case at hand with hypothetical “what if’s”? The fact is the LLC was found to have violated the NMHRA when it refused to photograph the commitment ceremony.
Bob, Esq: “Choice of business entity does not empower the government to compel thought or expression in the individual.”
Marco: “Absolutely right.”
Thank you. End of discussion.
David continues to not have his facts straight with “Pedophilia is defined by psychologists as a sexual orientation.”
Making up facts is not going to help with your already mean-spirited argumentation.
James Knauer wrote: “David continues to not have his facts straight with “Pedophilia is defined by psychologists as a sexual orientation.”
James, my facts are correct. Perhaps you and Marcos are not well read on this issue.
Following is a link to a scholarly article discussing pedophilia, with many references to it being a sexual orientation:
A Profile of Pedophilia: Definition, Characteristics of Offenders, Recidivism, Treatment Outcomes, and Forensic Issues
Ryan C. W. Hall, M.D.; Richard C. W. Hall, M.D., P.A.
FOCUS 2009;7:522-537.
http://focus.psychiatryonline.org/article.aspx?articleid=53036
“Pedophilia, especially the exclusive type, may be best thought of as its own category of sexual orientation, not something that is superimposed on an existing heterosexual or homosexual identity.”
“In this article, we address research that defines the various types and categories of pedophilia, review available federal data on child molestation and pornography, and briefly discuss the theories on what makes an individual develop a sexual orientation toward children.”
“This finding does not imply that homosexuals are more likely to molest children, just that a larger percentage of pedophiles are homosexual or bisexual in orientation to children.”
“Currently, much of the focus of pedophilic treatment is on stopping further offenses against children rather than altering the pedophile’s sexual orientation toward children.”
“… the interventions do not change the pedophile’s basic sexual orientation toward children.”
And following is a quote defining pedophilia as a sexual orientation.
Treatments to Change Sexual Orientation
FRED S. BERLIN, M.D., PH.D.
Am J Psychiatry 2000;157:838-838. 10.1176/appi.ajp.157.5.838
http://ajp.psychiatryonline.org/article.aspx?articleid=174135
“The psychiatric profession still correctly considers pedophilia to be a mental disorder. However, like heterosexuality and homosexuality (orientations that differ from one another on the basis of differences in sexual attraction), pedophilia, too, can be thought of as a sexual orientation that is different from others on the basis of age of attraction. As with other sexual orientations, irrespective of the relative contributions of genetics and environment, maturing individuals discover the nature of their own attractions; such attractions are not the consequence of a volitional decision. Historically, untold numbers of human beings have been both demonized and vilified simply because their sexual makeups differ from the norm.”
Bob, Esq: “Choice of business entity does not empower the government to compel thought or expression in the individual.” Absolutely right. You are free to think as you like, You are free to speak as you like, within certain well expounded limits. Actions are governed by law. In this case, the New Mexico Human Rights Act.
Marco,
Choice of business entity does not empower the government to compel thought or expression in the individual.