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.
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.