Affirming a ruling by District Judge Alan M. Malott of the Bernalillo County District Court, a three-judge panel of the New Mexico Court of Appeals unanimously ruled on May 31 that Elane Photography, LLC, violated the New Mexico Human Rights Act when it refused to provide photography services for a commitment ceremony for Vanessa Willock and her same-sex partner (who was not named in the court's opinion). Writing for the court of appeals panel, Judge Timothy L. Garcia found that Elane's attempt to cloak itself in constitutional free speech and religious freedom guarantees was unavailing.
Elane Photography is a business owned and operated by Elaine and Jonathan Huguenin. They advertise their services through a website, advertisement on multiple search engines, and a Yellow Pages listing. According to Judge Garcia's opinion, "Elane Photography has a policy of only photographing life events that communicate messages consistent with the Huguenin's personal and religious beliefs." This policy, however, does not appear in their advertising.
Willock emailed Elane to ask about having them photograph her upcoming commitment ceremony, indicating in her email that it would be a "same-gender ceremony." Elane promptly declined, indicating that it photographs "traditional weddings." Willock emailed back to clarify the response, asking whether Elane "does not offer photography services to same-sex couples." Responding affirmatively, Elane stated "yes, you are correct in saying we do not photograph same-sex weddings." The next day, Willock's partner emailed Elane, stating she was getting married and not specifying "whether the marriage was same-sex or 'traditional.'" This email also asked whether Elane was willing to travel to photograph a wedding. Elane sent an affirmative response and pricing information and offered to meet to discuss options. When Elane received no reply, it followed up with an email to ask whether there were any questions.
Willock filed a discrimination claim with the New Mexico Human Rights Commission, alleging sexual orientation discrimination by a public accommodation. The commission ruled in Willock's favor and ordered Elane to pay Willock $6,637.94 in attorney fees and costs. Willock had not sought monetary damages, just a declaration of her rights. Elane appealed to the District Court, raising defenses under the 1st Amendment (freedom of speech and free exercise of religion) and the analogous section of the New Mexico Constitution, as well as arguing that it had not violated the statute, claiming it was not a "public accommodation" and did not discriminate based on sexual orientation. District Judge Malott rejected Elane's defenses and affirmed the Commission's ruling.
The main point of Elane's argument on appeal is that Elaine, who is the photographer, is really an artist and her photography is a form of expression. As such, she rejects the idea that she is just like a public utility who can be required to provide her services to anybody who requests them. She also points out that the New Mexico Constitution protects individuals from being required to participate in religious services, as part of its protection of religious liberty, and that to compel her to attend a same-sex commitment ceremony would directly violate her protected rights to avoid participating in such an event.
In rejecting her arguments, the court noted that the language of the New Mexico Human Rights Law clearly applies to her business, since it defines a "public accommodation" as "any establishment that provides or offers its services, facilitites, accommodations or goods to the public." Clearly, Elane Photography is a business that advertises its services. "Today," wrote Judge Garcia, "services, facilities, and accommodations are available to the public through a variety of resources. Elane Photography takes advantage of these available resources to market to the public at large and invite them to solicit services offered by its photography business." The court concluded that Elane "is a public business and commercial enterprise. The NMHRA was meant to reflect modern commercial life and expand protection from discrimination to include most establishments that typically operate a business in public commerce."
Elane also tried to argue a "status/conduct" distinction in this case, asserting that Willock's sexual orientation was irrelevant to Elane's decision to refuse to provide photography services. Rather, their refusal was because of their religious belief that photographing the ceremony would "convey the message that marriage can be defined other than the union of one man and one woman." They would have no objection to photographing Willock in other contexts, and they would not turn down a job to photograph a ceremony involving a different-sex couple, even if both members of the couple were gay!
The court was unwilling to credit this argument, observing that the U.S. Supreme Court, in Christian Legal Society v. Martinez, 130 S.Ct. 2971 (2010), had specifically "declined to distinguish between status and conduct" in a case involving an exclusionary membership policy by a student organization. The court also noted Justice Sandra Day O'Connor's concurring opinion in Lawrence v. Texas, 539 U.S. 558 (2003), where she rejected Texas's argument that the Homosexual Conduct Law, outlawing same-sex conduct, did not discriminate based on sexual orientation because it would also be violated by same-sex conduct involving straight men or straight women. Finding that the law targeted "conduct that is closely correlated with being homosexual," Justice O'Connor concluded that it was "targeted at more than conduct. It is instead directed toward gay persons as a class." Judge Garcia followed similar reasoning in finding that Elane was engaged in sexual orientation discrimination.
The court also rejected Elane's freedom of expression argument, and rejected the argument that Elane's performance of photography services for a same-sex commitment ceremony would constitute some sort of forced expressive activity, commenting that "the mere fact that a business provides a good or service with a recognized expressive element does not allow the business to engage in discriminatory practices."
"While Elane Photography does exercise some degree of control over the photographs it is hired to take, in that it decides which pictures to take, which pictures to edit, and how to edit them, this control does not transform the photographs into a message from Elane Photography." What the law is regulating is not Elane's artistic expression, but rather its business practice. The court characterized Elane as a "conduit for its clients to memorialize their personal ceremony. Willock merely asked Elane Photography to take photographs, not to disseminate any message of acceptance or tolerance on behalf of the gay community."
Similarly with respect to the religious freedom argument, the court found Elane's "proposed interpretation" of the state constitutional language to be "attenuated and contrary to this Court's precedent." Being present at a ceremony to take photographs is not the same as participating in the ceremony as a member of a congregation or a celebrant. Furthermore, the court found appropriate to apply in this context the federal precedent of Employment Division v. Smith, 494 U.S. 872 (1990), in which the Supreme Court ruled that a law of general application that poses an incidental burden on religious worship will be upheld against First Amendment Free Exercise of Religion challenges if the government has a rational, non-discriminatory reason for adopting the law.
The NMHRA is not directed at religion or particular practices when it bans discrimination by public accommodations, wrote Judge Garcia, "but it is directed at persons engaged in commerce in New Mexico. Therefore, the NMHRA is a law of general applicability. As such, the government need not have a compelling interest to justify the burden it places on individuals who fall under its proscriptions. Because a rational basis exists to support the governmental interest in protecting specific classes of citizens from discrimination in public accommodations, the NMHRA does not violate the free exercise clause protections of the First Amendment."
The court insisted that application of the law did not deny Elane Photography "the right to express its religion opinion. The owners are free to express their religious beliefs and tell Willock or anyone else what they think about same-sex relationships and same-sex ceremonies," but it "may not discriminate in its commercial activities against protected classes as the basis for expressing its religious opinion."
The court found Elane's arguments under the New Mexico Religous Freedom Restoration Act to be essentially irrelevant, because that statute is concerned with restricting actions by the government, not be private actors. "The text of the NMRFRA is clear in limiting its cope to cases in which a 'government agency' has restricted person's free exercise of religion," said the court. Since the court found that the Commission had not restricted Elane's free exercise of religion in this case, the NMRFRA was inapplicable.
Although the ruling on this appeal was unanimous, Judge James J. Wechsler wrote separately to point out that Elane had failed to raise a potentially valid argument under a different sentence in the New Mexico Constitution. Elane had focused its defense on the provision banning compelled participation in religious ceremonies, but, wrote Judge Wechsler, "the language of Article II, Section 11 that to me captures Elane Photography's religious freedom position is the first sentence, stating that 'every man shall be free to worship God according to the dictates of his own conscience' and prohibiting the denial of any 'privilege on account of his religious opinion. This language, which focuses on a person's freedom to act in accordance with one's conscience concerning one's religious opinion or worship, seems broader than the First Amendment alnguage that focuses on preventing federal laws that 'prohibit' a person's free exercise of religion," he continued. However, since Elane had not expressly raised this at trial, and it would be presenting a question of "first impression" for New Mexico courts, Judge Wechsler pointed out that it was appropriate for the court to refrain from considering it on this appeal, commenting that "determination of its cope remains for another day."
While the outcome of this case is gratifyingly protective of the rights of gay people to have equal access to business services that are offered generally to the public, it will provide rhetorical ammunition to same-sex marriage opponents who argue — as they did in the various New England states and New York while marriage equality bills were being considered in the legislature — that passage of marriage equality will burden the free exercise rights of religious owners of businesses who will be required under public accommodations laws to participate in ceremonies of which they disapprove on religious grounds. Such arguments have resulted in proposals for provisions carving out exceptions to public accommodations laws for those with religious objections to any involvement in same-sex marriage ceremonies, and arguments remain about how broadly the courts may interpret such carve-out provisions in the inevitable cases where providers of goods and services raise objections to having same-sex wedding participants as their customers.