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
David, you have been debunked yet again.
Why do you insist on denigrating perfect strangers in a public blog after every one of your arguments has been shredded?
Oops. Forgot a link for Dr. Gijseghem:
http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=4959361&File=0
Bob, Esq.: “Yes, in contradiction to compelling the use of one’s intellect; thus my reason for contrasting it with photography.”
The management of a hotel requires intellect. Or do you believe hotels are managed by robots?
Bob, Esq.: “Photography creates intellectual property because it necessitates use of one’s intellect.”
No, photography doesn’t necessarily produce “intellectual property.” I routinely post my photos to a website on which people can download the photos without charge or permission. Hence, I did not declare the photos “intellectual property.” Beside, “intellectual property” is not in question here. The offering of a service to the public, but excepting a homosexual couple, is the question.
“The hotel is providing a service. To wit, the use of the hotel’s property.”
Yes, in contradiction to compelling the use of one’s intellect; thus my reason for contrasting it with photography.
Very good Marco.
Photography creates intellectual property because it necessitates use of one’s intellect.
Accordingly, you have no right to compel the photographer to use its intellect in any way whatsoever.
Bob, Esq.: “…let them state at a hotel.”
The hotel is providing a service. To wit, the use of the hotel’s property.
Bob, Esq. “They didn’t refuse to serve them drinks or let them stay at a hotel. They refused to use their minds in a way contradictory to their beliefs. See Woollard.
The only one confusing the issue here is you.”
They refused to provide them – the homosexual couple – with a professional service. I think I have a clear understanding of the issue.
Bob, Esq.: “Because PHOTOGRAPHY IS A FORM OF INTELLECTUAL PROPERTY??”
“Photography” is not a form of “intellectual property.” The results of the act of photography (a necessary action) can be declared as being intellectual property.
Marco,
They didn’t refuse to serve them drinks or let them stay at a hotel. They refused to use their minds in a way contradictory to their beliefs. See Woollard.
The only one confusing the issue here is you.
Bob, Esq.: “Copyright law covers literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.”
Yes, but Elane Photography refused to use its photographic “artistry” or “expression” for this homosexual couple. Besides, the text does not mention that Elane Photo was going to copyright the pictures.
Elane Photo discriminated – failing to accept the couple’s money in exchange for a service – on the basis of the couple’s sexual orientation. Hence, Elane Photo violated the law. Please don’t try to cloud the issue with things such as “intellectual property,” “copyright” and other irrelevant issues.
Let’s see …. Copyright law covers literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.
Gee, why can you copyright photographs?
Wait; I think I know this one…
Because PHOTOGRAPHY IS A FORM OF INTELLECTUAL PROPERTY??
So how does one compel the production of a form of intellectual property, again, epistemically speaking, without compelling thought or expression?
Ah the liberal imagination…
Bob, Esq.: “Refusal to what? Taking a picture is nothing more than an action? YOu must be a world famous photographer if you’ve found it that simple.”
Let’s simplify this to the maximum extent possible: Elaine and Jonathan, dba “Elane Photography,” are in the business of taking photos for money. They refused to accept the couple’s money in exchange for taking photos of the ceremony. Ergo, they discriminated on the basis of the couple’s sexual orientation.
Bob, Esq.: “Refusal to what? Taking a picture is nothing more than an action? YOu must be a world famous photographer if you’ve found it that simple.”
Actually, I am a serious amateur photog. As to your point, taking a picture is not an action? Setting up photo equipment – tripods, lighting equipment, video camera, etc. – are actions. So is pressing the button on the camera that captures the scene.
David,
First of all, you were on a psychiatric web site. Psychiatrists are not psychologists and vice versa. Those articles represented the opinions of the writers. Those writers do not speak for either profession as a whole.
Having said that, since you accept those writers as authoritative, did you notice the last portion of Dr. Berlin’s piece?
OS wrote: “First of all, you were on a psychiatric web site. Psychiatrists are not psychologists and vice versa.”
Oh, come on. You know that a psychiatrist is a psychologist with a medical degree. Nevertheless, here are a few psychologists for you:
Dr. Vernon Quinsey, Professor Emeritus of Psychology, Queen’s University:
“So it appears like pedophilia is a sexual orientation. Because if you think of a sexual orientation like male heterosexuality, phallometric studies will show that male heterosexuals show substantially more interest in females than males. You also can’t modify that interest; it’s stable through adulthood, just like pedophilia.”
http://www.good.is/posts/is-pedophilia-a-sexual-orientation-a-psychologist-breaks-down-what-makes-a-jerry-sandusky
Dr. Hubert Van Gijseghem, Psychologist and Professor (retired), University of Montreal, testifying before Canadian Parliament:
“If we know that pedophiles are not simply people who commit a small offence from time to time but rather are grappling with what is equivalent to a sexual orientation just like another individual may be grappling with heterosexuality or even homosexuality, and if we agree on the fact that true pedophiles have an exclusive preference for children, which is the same as having a sexual orientation, everyone knows that there is no such thing as real therapy. You cannot change this person’s sexual orientation. He may however remain abstinent.”
OS wrote: “Those articles represented the opinions of the writers. Those writers do not speak for either profession as a whole.”
Right, but most articles I have read on pedophilia, especially those by psychologists and psychiatrists, use the term sexual orientation rather freely.
OS wrote: “Having said that, since you accept those writers as authoritative, did you notice the last portion of Dr. Berlin’s piece?”
Yes I did. The sexual orientation of pedophiles appears to be as ingrained as it is in homosexuals. So in like manner, there is controversy about whether there can be much success in changing it once it has become established.
This is a prime example of the second most important reason the GOP wants corporations to be people.
Writing is nothing more than typing out words on a keyboard.
Gotta get me a room full of monkeys to author me a multimillion dollar screenplay.
davidm2575 @ August 24, 2013 at 4:08 pm
It’s irrelevant to the case being discussed. Please remain on topic.
Marco wrote:
“davidm2575 @ August 24, 2013 at 4:08 pm
It’s irrelevant to the case being discussed. Please remain on topic.”
It is relevant because the law is about discrimination based on sexual orientation.
You tell me:
=====
““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.
=====
Really? You do not expect me to correct your error that misled at least one person in this forum into believing something false?
Marco: “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.”
Refusal to what? Taking a picture is nothing more than an action? YOu must be a world famous photographer if you’ve found it that simple.
Bob, Esq.: “Under your argument, a sole proprietor would have first amendment rights that other business formations would not.
That’s an Equal Protection violation.”
Any person or business can speak as s/he or it desires, that’s the 1st amendment. Bob, we are not talking about expression but about action. Please understand the difference.