Last month, in Elane Photography v. Willock, the New Mexico Supreme Court upheld the application of the state’s anti-discrimination law to a wedding photography business that had refused to photograph a same-sex commitment ceremony. The photographer made a variety of arguments against the application of the law, each of which the New Mexico high court rejected. Accordingly, in New Mexico, most businesses may not refuse service to gay and lesbian couples on the basis of either the First Amendment freedom of expression or the First Amendment freedom of religion, even if the business at issue involves an expressive component, and even though the people who own or operate the business might harbor religious objections to same-sex relationships.
I applaud the New Mexico high court’s decision, because it recognizes and affirms the importance of protecting people from discrimination on the basis of sexual orientation. It acknowledges the humiliation and suffering that come of being turned away by a business on the basis of one’s identity and relationships. Yet at the same time, the decision and the law that it applies leave in place the associational rights that people have in private settings, including the right to make what many of us regard as invidious, discriminatory choices. Anti-discrimination law has always had to strike a delicate balance between the right to be free of invidious discrimination and the right to choose with whom to associate on questionable and even plainly wrongful bases.
In this column, I want to focus on two unusual features of this case: first, a concurring opinion that shows a laudable sensitivity to the feelings of people who experience themselves as aggrieved by anti-discrimination laws; and second, an ironic aspect of New Mexico law that does not explicitly emerge in either of the published opinions.
Summary of the Legal Arguments
Before focusing on the unusual features of Elane Photography, let us review the main holding of the New Mexico Supreme Court. The defendant in the case was a woman, Vanessa Willock, who had attempted unsuccessfully to contract with the plaintiff (photography business) to photograph Willock’s commitment ceremony with her same-sex partner. When Willock was expressly refused the photographer’s services on account of its disapproval for same-sex weddings, Willock filed a discrimination complaint with the New Mexico Human Rights Commission, and the Commission ruled in her favor.
After the Commission’s ruling, the plaintiff appealed in the district court for a trial de novo reversing the award of attorneys’ fees and asking, among other things, for a declaration that it had not discriminated on the basis of sexual orientation and that its First Amendment rights (to free expression and the free exercise of religion) had been violated. The court granted summary judgment to the defendant, and the photographer appealed again and lost in the court of appeals. Finally, the New Mexico Supreme Court affirmed summary judgment for Willock and against the photographer.
In rejecting the plaintiff’s arguments, the New Mexico Supreme Court explained, first, that refusing to photograph a same-sex commitment ceremony because the couple has two members of the same sex is indeed discrimination on the basis of sexual orientation. The plaintiff had suggested that it had made its choice on the basis of conduct—the decision of the two women to join their lives together in a public ceremony—rather than on the basis of status. Had one of the women sought a self-portrait, for example, the plaintiff explained that it would have been happy to take that portrait or any other kind of photograph that did not directly support the choice of the couple to join in the equivalent of a marriage relationship.
The high court refuted the distinction presented by the plaintiff and argued persuasively that discriminating against a couple’s commitment ceremony by virtue of its same-sex character is the essence of sexual-orientation discrimination, particularly given that the plaintiff here is a wedding photographer.
The court next rejected the plaintiff’s arguments under the First Amendment of the U.S. Constitution, the first of which was a free speech claim. The plaintiff argued that because photography is an inherently expressive activity, the law’s forcing the plaintiff to tell a photographic story about a same-sex ceremony constituted compelled speech, in violation of the First Amendment. Like forcing a child to utter the pledge of allegiance or forcing a driver to sport a vanity plate that reads “Live Free or Die,” the plaintiff asserted that compelling the narrative that wedding photography necessarily entails amounts to the law forcing the plaintiff to say positive things about same-sex relationships, contrary to its actual views of such relationships.
The court responded that the law does nothing to single out expressive activity. The plaintiff chose to run a photography business as a public accommodation. Rather than compelling a pro-same-sex-couples narrative, then, the law simply demanded that the public accommodation extend its services—the same services that it chose to provide to the public for money—to everyone, without regard to sexual orientation. That is no more “forced speech” than it would be if the plaintiff’s business was selling coffee, and it was required to sell coffee to everyone, regardless of sexual orientation.
Furthermore, the court explained, it would be exceedingly unlikely that anyone seeing the plaintiff’s photographs of the defendant’s commitment ceremony would interpret those photographs as communicating the photographer’s endorsement of same-sex unions.
Finally, the plaintiff made a religious argument, invoking both the First Amendment and state law, and suggesting that the photographer’s religion prohibits her from supporting a same-sex union by performing photography services celebrating such a union. The court rejected the First Amendment religious argument, on the ground that the First Amendment Free Exercise Clause simply requires the evenhanded application of neutral laws, rather than any affirmative accommodation of religious injunctions. Even if providing photographs of the defendant’s ceremony would violate the religious obligations of the plaintiff, in other words, the plaintiff would not be entitled to an exemption from a neutral law of general application, which the New Mexico Human Rights Act prohibition against discrimination on the basis of sexual orientation is. The court further noted a distinction between the business itself and the co-owner of the business, who is also its chief photographer: The actual plaintiff was the business, a limited liability company that might not even have Free Exercise rights. Nonetheless, the court assumed that it would have such rights for the sake of deciding this case.
The court further rejected the plaintiff’s state law argument under the New Mexico Religious Freedom Restoration Act (NMRFRA) for affirmative accommodation of religious prohibitions. The court held that NMRFRA applies only to a suit against a government agency, not to litigation between private parties.
Concurring Opinion
As I explained above, I am impressed with the main opinion in Elane Photography. By ruling as it did, a majority of the New Mexico Supreme Court signaled its willingness to protect a minority from the insult and injury of exclusion on the basis of its minority status. I am also pleased to report that the subtle and wise arguments of the majority were informed by expert analysis in an amicus brief submitted by two of my colleagues, Cornell Professors Steve Shiffrin and Michael Dorf.
One unusual feature of the case, however, is found in the additional, concurring opinion by Justice Richard Bosson. In his opinion, he acknowledges the difficult position of individuals who object to the anti-discrimination law. Of the people who run the plaintiff photography business, Justice Bosson explains: “On the record before us, no one has questioned [their] devoutness or their sincerity; their religious convictions deserve our respect.”
Justice Bosson adds that there is, similarly, no reason to doubt the sincerity of people who, in the not-so-distant past, raised objections to inter-racial marriage and felt strongly that they ought not to be asked to tolerate unions that they believed contravened God’s law. Despite how such preferences may strike us now—and how anti-gay sentiment may strike many of us now—the truth is that those who harbor this sentiment really do feel aggrieved by the application of anti-discrimination law to them, and the concurring opinion in Elane Photography shows an uncommon empathy and regard for these feelings.
The concurrence observes, for example, that the people comprising the plaintiff in this case “are not trying to prohibit anyone from marrying. They only want to be left alone to conduct their photography business in a manner consistent with their moral convictions. In their view, they seek only the freedom not to endorse someone else’s lifestyle.”
Nonetheless, as the concurrence explains, that right to stay out of things, in the manner that plaintiff seeks, in a context in which a business otherwise operates as a public accommodation, is simply too harmful to the excluded parties to be tolerable. The concurrence acknowledges, though, that the justification for having an anti-discrimination law likely “is little comfort to the Huguenins [the people forming the plaintiff limited liability company], who now are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views.” (emphasis added)
It is rare for courts to offer this sort of statement of appreciation for the inconvenient fact that abiding by laws—even laws that most of us consider just, right, and expressive of what is best about American culture—exacts a non-trivial cost from those who nurture strong commitments that conflict with those laws. For those of us in the majority (as well as the minority), this empathy is worth nurturing toward those whose priorities and values differ drastically from our own. Perhaps some day, people who hold what we regard as bigoted views will come around, and they may do so in part because they had to abide by laws like the New Mexico Human Rights Act, notwithstanding their contemporary objections. Yet until they do, they are entitled at least to our empathy, however difficult a gift that is to extend when our moral judgment has been engaged.
Anti-Discrimination Law and Glass Houses
Turning now to a second unusual feature of the New Mexico Supreme Court’s decision, I think it worth noting that the decision essentially asks private people and private businesses to conduct themselves in a manner in which the State of New Mexico itself has failed to do. How so? Even as the New Mexico Supreme Court requires Elane Photography to treat the commitment ceremony of a same-sex couple the same way as it would treat the wedding of an opposite-sex couple, the law of New Mexico has yet to recognize same-sex marriage.
The high court manages to avoid discussing this inconvenient fact, because the plaintiff speaks of the defendant’s commitment ceremony as a same-sex wedding. We can imagine the plaintiff assuming a very different posture, however. It could have argued that it photographs only those ceremonies that involve legally recognized married couples under state law.
Vanessa Willock and her partner were not going to be legally married, and indeed could not be legally married as a matter of New Mexico state law. Therefore, the plaintiff could have argued, its business practices simply track the New Mexico law of marriage, a neutral principle that might not trigger the application of anti-discrimination law.
We can imagine why the plaintiff chose not to go this route. It would have been dishonest, for one thing. The reason that the plaintiff chose not to photograph the defendant’s ceremony was an opposition to same-sex commitments, an opposition that a same-sex marriage law would do nothing to alleviate. Indeed, given the plaintiff’s feelings about same-sex commitments, it might have felt even worse about photographing a same-sex ceremony that had the state’s imprimatur.
Though I find the plaintiff’s position objectionable, it is at least honest in not invoking and relying on a feature of New Mexico law that may be fleeting and that was, in any event, irrelevant to the plaintiff’s motivations.
Far more important, however, than the plaintiff’s particular reason for failing to make the state law argument is the fact that the argument was there for the taking. New Mexico law continues to do precisely what the defendant accused the plaintiff of doing—refusing to extend the same privileges and benefits to similarly situated couples, based wholly on the fact that the disfavored couples contain two people of the same sex, while the favored couples contain two people of the opposite sex. In essence, the New Mexico Supreme Court demanded more of Elane Photography, under New Mexico law, than New Mexico law requires of itself.
This ironic state of affairs is necessarily unstable. For the moment, the U.S. Supreme Court has held that when a state recognizes a same-sex marriage, the federal government may not refuse to convey the same benefits to the members of that marriage that it conveys to every other marriage in the country, as a matter of equal protection. But what does equal protection truly mean if states can continue to deny same-sex couples access to marriage altogether?
The Supreme Court remains silent on that question for today, but unlike individuals with religious and expressive rights to take into account, states have no such contrary interests. One can therefore only hope that before much more time passes, the U.S. Supreme Court—and/or all of the states that have yet to recognize same-sex marriage—come to fully respect the equal rights of people in same-sex relationships.
NM is in the process of recognizing same sex marriage fittingly via litigation but the business here doesn’t have to marry the couple, like a church might via a sectarian ceremony. The business definitely does not have the duty or power to provide the privileges (and burdens) involved in marriage. They have to provide certain services on an equal basis. If a state run store at a museum was involved, it would have to do the same thing.
Fantastic treatment of this issue! Thank you for putting this together and laying out an explanation for us non-lawyers to grasp the basis for the New Mexico court’s decision. Surely even the staunchest religionist can understand where the court is coming from on this.
Actually, it now means that if you live in NM, you’d be obligated to photograph the next NABLA convention, polyamory event, porn conventions or a swingers’ party. After all, the aforementioned groups are sexual in nature, but you couldn’t pay me enough to work directly with them. I’d actually rather die for my faith than be forced to give in and bow down to the court system or anyone else for that matter. You just can’t serve two masters. I’m following Jesus. In the long run, I’ll fare much better than the people who bow down to sin. I have an eternal perspective; I see things in its future tense.
For me the salient point was the last one made, its seems unfair to ask more of a small business then the state asks of itself. For what it’s worth I side with the photographer. I believe that same sex marriage should be legal, since the only real basis to oppose them are religious and we may not impose a religious test for benefits. Likewise I believe that those of us who believe that same sex unions are inherently wrong on religious grounds ought not be compelled to participate in them, surely in New Mexico there is at least one gay friendly photographer. I acknowledge that the gay couple may be distressed that they were refused service, but the solution ought not be to distress others.
agreed had I been the happy couple I would want someone who could be truly happy for me to be taking the photos not someone who preferred not to be there.
This seems unfair. With the amount of taxes and extra costs a business has it should not have to take on assignments that it wishes not to do.
This is wrong on every level. To force someone to condone an action against their will whether it is against their religious beliefs or not is wrong.
Well I guess I know now to just ignore certain people. That way the courts can’t violate my rights and force me to work for people or groups I have no desire to work with.
But can I sue same-sex couples for discrimination if they refuse to use me as their insurance agent because I am a Christian? A Jew? A Muslim? Or because I am White? Brown? Black? Red? Yellow? Or because I am over age 50? 60? 65? 70? 75? Or I am a married heterosexual? Or I am an unmarried heterosexual? Or I am a divorced heterosexual?
Do I even have any rights remaining as a self-employed business person?
What is happening to this country defies all logic.
We are all free to patronise or not patronise any business we see fit, and for whatever reason. Same sex couples refuse to do business with companies whose ethics they disagree with. Many religiously motivated people refuse to do business with companies they feel in moral conflict with. Focus on the Family is engaged along with the National Organization for Marriage in an ongoing campaign to boycott a number of a gay affirming companies such as Starbucks. This is the nature of freedom of expression, the other side of the coin. The burden of not discriminating is placed on businesses, not the individual.
It’s a sad day for individual freedom. Would the court requre a Black Photographer to participate in a White Aryan Nations wedding? Of course not. The ruling stretches credibility.
If I were the photographer, a lot of shoes would have been photographed at a “wedding”.
I’ll be sure to order pork at the next Muslim restaurant I see.
Usig this Logic an African American photographer would be forced to film an Aryan Brotherhood Wedding or face Legal action. Hamlet was right!
Actually, the anti discrimination law in question would not apply to your hypothetical situation. White supremacists are not considered to be a protected class under the law. As the New Mexico Supreme Court points out in their decision: if they were to agree with the plaintiff’s logic, a Ku Klux Klan member running a photography business would be free to discriminate against racial minorities whenever it suited them because they have a sincerely held belief.
I think the wedding photographer should be able to choose her own clients. I don’t think anyone should have to provide services for, or in any way recognize, a perverse “marriage”.
“surely in New Mexico there is at least one gay friendly photographer”
This point pretty much summarizes all of the objections in this thread: why should my rights as a small business owner be compromised when “they” can simply go somewhere else? This objection, of course, takes for granted that there *is* reasonably somewhere else to go. What happens in small communities where there really is only one provider of that service, or all of the few available providers share the same religious objection? I think it’s only fair to turn the objection around: if you can’t abide by the law, why not find another livelihood?
Why not just move to Florida? You don’t have to take pictures of anyone you don’t want to there, and even if someone tried to sue you, they can’t collect. Remember, that’s why OJ moved to Florida!
Let me tell you something, where I live you couldn’t pull this kind of BS. In Florida, even if you tried to sue someone, you can’t collect. It’s a waste of time and money. Creditors don’t really bother much pursuing lawsuits in Florida because they know they won’t see a dime of that money, but they’ll have to spend a lot of money on lawyers and legal fees, etc. Besides that, there is no law that says you have to serve anyone based upon their sexual orientation in Florida. There is, however, a biblical law that states that “No one can serve two masters. Either you will hate the one and love the other, or you will be devoted to the one and despise the other. You cannot serve both God and money.” Anyone who really loves God won’t care about the laws that man makes. The only thing that matters is what God calls us to do. He calls us to be Holy! There is no way I’d photograph a same-sex wedding, even if you tried to sue me. I’d actually rather die first because I know one day I will have to give an account to God for everything I say and do. And I’d rather die for my faith, than be lukewarm here on this earth and serve man. I’m am commited to serving God and Him only. Anyone who wishes to practice their faith should move to Florida then. You won’t have any trouble there. And even if someone tried to sue you, they can’t collect anyway! :) In fact, nobody has ever been succesful in trying to sue me. I give all the credit to Jesus for that! You have to love Texas and Florida because you’re pretty much judgement proof in those two states! :) There is no way you could force someone in Texas or Florida to photograph anything they don’t want to photograph. I’m surely not going to photograph a NAMBLA event. No way! I’m not going to photograph a porn convention, polyamory event or swingers’ party either. (Keep in mind, the aforementioned groups can now claim discrimination too in NM.) In fact, I don’t care what state I’m in. I’m not going to do it. I’d rather you kill me first! You’re just not worth going to hell over! Jesus says: 37 Whoever loves his father or mother more than me is not worthy of me, and whoever loves his son or daughter more than me is not worthy of me. 38 And whoever does not take his cross and follow me is not worthy of me. My final answer: I’m following Jesus!
By the way, according to the NM law, if a group such as NAMBLA decided to hire a lawyer in NM, they’d have to now work for them, wouldn’t they? After all, now all these fetish groups will need lawyers. If you refused NAMBLA, couldn’t they sue you for discrimination in NM? Don’t forget this law just doesn’t extend to same-sex marriages, it extends to all sexual orientations including NAMBLA, polyamory groups, incestuous polyamory groups, swingers, pornographic entertainers, etc. There are even a a few guys I know of who are married to sex-shop dummies. Google it. I don’t know what you call that kind of sexual orientation, but there are some guys who are married to dummies. Now all these fetish groups will demand your services if you live in NM. I couldn’t imagine having to photograph a wedding of a guy marrying a sex-shop dummy. Or imagine having to represent NAMBLA in a court of law if you are a lawyer.
First off, NAMBLA consists of fewer than 300 men, most of whom are heterosexual males in marriages to women. Secondly, you’re completely missing the point, as usual. No religious liberties are lost when you bake a cake or take a photograph, therefore this whole thing is simply a rallying cry to conservative religious people to claim phony victimhood. If a photographer can hang a sign in her window that she won’t serve gay couples at their wedding, what’s to stop me, as a musician, from hanging a sign: “no Chinese, no blacks, and no Jews?” What’s the difference?
Talk about missing the point. The issue is not “taking a photograph”. First, the whole purpose of a wedding is to celebrate and affirm a relationship. Thus the purpose of a gay wedding is to celebrate and affirm a gay relationship. Anyone contributing to a gay wedding is contributing to that celebration. If you have a religious objection to gay relationships, then being compelled to participate in that celebration means you are certainly being forced to act contrary to your conscience.
Second, wedding photography is a multi-hour service, requiring constant personal interaction with the clients and creative expression. It cannot be done well without personal engagement and commitment. Asking someone to undertake that engagement and commitment is again a severe imposition on their conscience.
Personally, I have no objection to gay weddings and I think that most of the time anti-gay discrimination should be illegal. However, this wedding photography example takes matters too far.
The case was obviously launched by zealots. No-one who wants a decent job done of their wedding photography is going to want to hire someone strongly opposed to doing that job. Such a photographer can’t be relied on. It is unlikely that the couple genuinely wanted to hire the photographer. Rather, the couple wanted to stomp on the photographer’s rights as part of a drive to kill off any expression of disagreement with their sexual practices.
So this decision discriminates against a businesses and an individuals right to deny to do business and to violate their freedoms and personal God ordained values. The decision seems to me to be to be like what a dictator would render.
No, this decision was a wise decision. Sorry, but taking a photograph or baking a cake isn’t a religious act nor ritual and therefore no beliefs nor freedoms have been violated. It’s a phony way for the Christian right to claim victimhood when they have lost nothing. I am an Atheist musician who has played for countless Jewish, Catholic and Protestant weddings, all of which violated my personal beliefs. I believe I do not have the right, both legally and morally, to refuse to play for those weddings, even though my own beliefs are violated and offended. In fact, I was most offended when the Catholics resorted to their cannibalism and they expected me to drink the blood of Jesus. That was over the top offensive to me…
Really? So you think Jews and Catholics and Protestants shouldn’t be allowed to marry in accordance with their faith? If that were true, then playing at their weddings would be a substantial violation of your conscience and you certainly should not be compelled to do so. That you do so voluntarily suggests to me that it doesn’t bother your conscience much at all.
The flaw in this finding is declaring them a public accommodation – they are not a McDonalds selling products from a menu or a Sears Photo Center that you walk in and get a package photo job done – the LGBT couple involved sought to CONTRACT talent for hire for a custom job at THEIR location
What’s truly objectionable is the dystopian end game of government and academic PC proponents imposing one group’s wants upon others – the couple WANTING to contract to hire this talent should not require the talent to be forced to enter into the contract
If I’m a concierge chef who has done celebrity parties and the Nation of Islam wants to contract me to cook at their next gathering but I feel uncomfortable doing so – it would be unconscionable for the government to force me to take the contract
What’s next? Government and academic wonks stepping in to require Hobby Lobby and Chick-fil-A to be open on Sundays because some LGBT or atheist wants to buy a picture frame or a chicken sandwich on Sunday and don’t think a Christian business should discriminate against their desire to shop on Sunday?
Ultimately that’s where government sanctioned PC intrusion ends up – the slippery slope of deciding one group’s rights or feelings are superior to others is a very steep downhill that ends in tyranny
I say the complete opposite. If we allow a photographer to refuse service to a lesbian couple simply because she “disagrees” with homosexuality or gay marriage, then what’s to stop us from saying we don’t serve Jews or blacks? This is how the Nazi campaign against Jews began, and we should sit up and take notice. Their first step was to refuse to do business with Jews. And, if you actually advocate refusing service to gays, then you have opened a window for discrimination across the boards. You are quite frankly wrong on this issue. Dead wrong…
This is pure zealotry. It doesn’t have to be zero discrimination vs unfettered discrimination. One can have a strong anti-discrimination presumption but allow exceptions. That is routinely done with anti-discrimination legislation all around the world, without such jurisdictions turning Nazi.
“What’s to stop us from saying we don’t serve Jews or blacks?” Sensible laws, that is what is to stop you.
Force The A and E Network to not discriminate against the Duck Dynasty minority opinion!
Laws based upon hurting someone’s feelings is ridiculous. When are we going to return to the freedom to be offended and to offend?
It’s not about hurt feelings. It’s about “Conservative Christians have not put forth sufficient secular arguments against homosexuality so states have decided they deserve minority protection”.
I think homophiles need to have the tables turned on them. Find businesses run by homosexuals and force them to support causes counter to their sexual preferences. Sue them if they refuse. I fear that is the only way they will learn.
Wouldn’t it have just been easier for her to just say no? As a graphic designer, I turn down freelance work allllll the time, usually because my deadline schedule is too full. If for whatever reason, say someone was just a weirdo and I didn’t like them, I’d just say I was unable to take the job or just not call them back or something. The fact that she needed to TELL them they are wrong and she doesn’t believe in their rights and all that – THAT is what this case is about. It’s not as if SHE IS FORCED WITH CHAINS to take pics at their wedding. please. It’s the fact that she discriminated against them deliberately. It’s the same for race – if someone has an interview at McDonald’s and they just don’t get a call back or a “the position has been filled” all is done, but if they were to get a “we don’t hire black people” that’s discrimination. It’s pretty simple. Don’t be a dick basically. She was being a dick.
So your position is that discrimination is OK provided you are prepared to lie in order to hide the fact that you are discriminating? What was that about being a dick?
By this arguement, a kosher butcher can be compelled to sell pork products. The more reasonable choice of a citizen is to tolerate people of different faiths, accept they are different, and take your money elsewhere. There is already the traditional penalty of losing business. The danger of this ruling is it likely to be flipped around and be used by other bigots — such as anti-Jewish bigots — to force Jewish operations to accomonadte their wants. Not “needs”, as in medical care, police services, heating oil, etc. A non-essential luxury — a professional photographer. I agree that states have no LEGAL obligation to follow the Bill of Rights — but it should. Freedoms are inherently conflicted, and in this case a person was compelled to act against their religion, interfering with their free practice thereof. Having lived in other places where this has happened, and being someplace right now where people were executed for not following the popular wants and desires, I find the arguements incredibly shortsighted and facile. The door will swing both ways.
So are you telling me, that if I were a wedding planner and a gay couple wanted me to do their wedding and I refused, then I would be forced by the govt to participate? It’s the same thing and it doesn’t make sense. Also, did any body read the comparison they made to selling coffee? Seriously, that’s not even an argument that is worthy of listening too and these are our judges and lawyers today?
What ever the penalty, if they could set up a place where we could contribute, there would be millions and millions of people who would do so. Lets fight this insanity.