New York Law School

Art Leonard Observations

Posts Tagged ‘same-sex commitment ceremonies’

New Mexico Supreme Court Rules Against Wedding Photographer in Sexual Orientation Discrimination Case

Posted on: August 23rd, 2013 by Art Leonard No Comments

The New Mexico Supreme Court unanimously ruled on August 22 that a wedding photography business violated the New Mexico Human Rights Act by refusing service to a lesbian couple for their same-sex commitment ceremony.  The court held that the photography business owners’ religious and free speech rights were not unconstitutionally violated by this result.  The case is Elane Photography v. Willock.

 The case arose when Vanessa Willock contacted Elane Photography LLC by email to inquire about booking the company for a commitment ceremony with her same-sex partner.  Elane declined the business.  Elaine Huguenin, co-owner of the business with her husband, told Willock that they only did “traditional weddings,” and when Willock pressed her, she replied specifically that they “do not photograph same-sex weddings.”  Misti Collinsworth, Willock’s partner, then contacted Elane about photographing a wedding, without mention the gender of the participants, and Huguenin sent her pricing information and an invitation to meet to discuss her services.  When Collinsworth did not respond, Huguenin again e-mailed to try to set up a meeting.

Willock and Collinsworth contracted with somebody else for their ceremony, and filed a discrimination charge against Elane Photography with the New Mexico Human Rights Commission.  New Mexico’s Human Rights Act forbids discrimination because of sexual orientation by public accommodations.  Throughout this case, Elane has conceded that its business comes within the statute’s definition of public accommodation, but has argued that it is privileged under both the First Amendment of the U.S. Constitution and under the New Mexico Religious Freedom Restoration Act to decline to photograph same-sex ceremonies, as a matter of freedom of expression and free exercise of religion.  The Commission ruled against Elane, which appealed to the state courts.

The trial court and the court of appeals rejected Elane’s arguments, and now the state’s Supreme Court has agreed with the lower courts, in an opinion by Justice Edward L. Chavez.  This may not be the last word, since Elane could petition the U.S. Supreme Court to consider Elane’s constitutional defenses.

First the New Mexico Supreme Court rejected Elane’s argument that it was not discriminating based on sexual orientation, as such, but rather was refusing to involve itself in a particular event, a same-sex ceremony, that did not turn on the sexual orientation of anybody.  The court was unwilling to indulge this attempt to draw a line between status and conduct, finding that this approach had been specifically rejected by the U.S. Supreme Court in the Martinez case, which involved a law school’s refusal to extend official recognition to a Christian student organization that excluded gay people from membership.

Elane’s more serious arguments were the First Amendment claims, since it seems clear that requiring the business to provide photography services for same-sex ceremonies does, to some extent, involve the people who run the business in “expressive activities” that violate their personal religious and moral views.  But the court found that a substantial body of legal precedent has held that commercial businesses can be required to comply with religiously-neutral anti-discrimination laws, such as the New Mexico statute in this case. 

In the context of free speech, the court analogized this case to the U.S. Supreme Court’s decision upholding the federal government’s requirement that law schools receiving federal funds allow military recruiters on their campuses, despite the law schools’ opposition to the military “don’t ask, don’t tell” policy in effect when that case was decided.  The schools complained that allowing recruiters on campus might appear to students to be an endorsement of the military’s policies, and would violate the expressive rights of the schools, but the Supreme Court held that the schools were free to disclaim any approval of the military policy and were not being compelled to endorse it through conduct.

A similar analysis applied to the free exercise claim.  The court noted that federal appeals courts have recently split over the question whether a business corporation can make any claim to free exercise of religion, an issued that seems headed to the U.S. Supreme Court.  But the court found no need to try to resolve that question, because it concluded that requiring Elane to offer photography services on a non-discriminatory basis did not impose an unconstitutional burden on free exercise.  “Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs,” wrote Justice Chavez. “They may, for example, 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.”

In a concurring opinion, Justice Richard C. Bosson gave an eloquent explanation of the rationale for the court’s opinion. 

“On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this 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. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

“In the smaller, more focused 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. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.”

Alliance Defending Freedom, a law firm specializing in defending religious liberty and opposing gay rights claims, provided representation to the Huguenins in this case.  Julie Sakura and Sarah Steadman of Santa Fe and Tobias Barrington Wolff, a law profession from the University of Pennsylvania, represented Willock.  The case attracted considerable amicus support, including briefs from law professors, an association of wedding photographers, a New Mexico small businesses association, the ACLU of New Mexico, and the ACLU’s national LGBT Rights Project.