N.M. Court to Decide if Gays Can Be Refused Service

Posted March 20, 2013 in Editors Picks Gay and Lesbian issues by

Two women looking at photos with a store clerk

BananaStock/Thinkstock

The New Mexico Supreme Court heard arguments last week over whether a photographer can refuse to take pictures of a same-sex wedding.

In Elane Photography v. Willock, the court will decide whether the photography studio acted in violation of the New Mexico Human Rights Act when its owners declined to shoot the commitment ceremony of Vanessa Willock and her partner, citing religious beliefs.

The New Mexico Human Rights Commission found that Elane violated the law, a decision that has twice been upheld in court.

Bans on discrimination in public accommodations makes up one leg of the tripod that supports most civil rights protection laws, the other two being housing and employment. The federal Civil Rights Law, famously enacted in 1964 after black activists staged sit-ins at “whites only” Woolworth lunch counters, bans public accommodations discrimination based on race, sex, nationality, religion and ethnicity, but not sexual orientation.

New Mexico’s law, however, spells out sexual orientation among its protected classes, as does the law of 20 other states plus Washington, D.C.

 

First Amendment Question

Sarah Warbelow

Among other questions about New Mexico statute and religious exemptions from the law, the case hinges in large part on whether commercial photography is considered speech for First Amendment purposes, and if mandating a photographer to shoot an LGBT-related ceremony then constitutes compelled speech.

“This was not just recording like a security video camera,” Jordan Lorence, attorney for photographer Elaine Huguenin, told a local news source, noting her “unique, artistic skills.”

“The law cannot compel someone to stand on a soapbox,” Lorence said, “in the same way that a court cannot compel someone to use his photographic skills to say something contrary to his beliefs.”

University of Pennsylvania law professor Tobias Barrington Wolff, arguing for Willock, asserted that acts of advertising a service to the public “are entrances to public commerce” and therefore fall under the civil rights law. “This is a straightforward case of discrimination by a business,” Wolff said.

A decision in favor of Elane could have implications far beyond Willock’s commitment ceremony. “Public accommodations cover all areas in which any individual would have a reasonable expectation that they could go in and not be denied service because of who they are,” says Sarah Warbelow, state legislative director for the Human Rights Campaign. “This would carve out a huge exemption for any individual who decided they didn’t want to serve a customer based on individually held religious beliefs.”

By extension, a photographer could then refuse to shoot for an inter-faith couple, or a girls’ sports team, or any other situation that might offend someone’s religious sensibilities. “This is really what this case is asking for,” Warbelow says. “You can imagine that individuals who are really dedicated to undermining state nondiscrimination laws will keep pushing the envelope if they think they have an opportunity.”

 

Photography as Protected Speech

Proponents and opponents have been weighing in, adding nuance to each side of the argument.

The ACLU filed an amicus brief in support of Willock, arguing that “a commercial business cannot solicit customers from the general public to buy its services as a photographer for hire and then claim that taking those photographs is a form of its own autonomous expressive activity.”

The Cato institute filed in favor of the studio, citing the 1977 U.S. Supreme Court decision Wooley v. Maynard, in which a family was excused from displaying the New Hampshire state motto, “Live Free or Die,” on their car license plate on the grounds that it violated their freedom of religion.

“Wooley secures an important constitutional right to which speakers and those who create speech are entitled — whether they are religious or secular, liberal or conservative, pro-gay rights or anti-gay rights,” the brief argues. “Those whose consciences, whether religious or secular, require them to refuse to distribute expression ‘which [they do] not completely accept,’ are constitutionally protected in that refusal.”

The nature of wedding photography, the CATO brief asserts, compels the photographer to depict the ceremony as “a beautiful, praiseworthy, even holy event” which could jeopardize a person’s “freedom of mind” if she thought the event profane.

Whatever the New Mexico court’s decision, the case could then be appealed to the U.S. Supreme Court on the First Amendment question.

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