August 23, 2013
Yesterday, the New Mexico Supreme Court decided Elane Photography v. Willock, ruling in favor of a same-sex couple who wanted their commitment ceremony photographed by a business in the state. New Mexico has added sexual orientation and gender identity to its anti-discrimination statute, and this lawsuit raised questions over the law’s reach and its constitutionality under the first amendment, as well as the question of whether application of the anti-discrimination law to this situation violates another state law, the New Mexico Religious Freedom Restoration Act. The state supreme court unanimously decided all of those claims in favor of the same-sex couple.
First, Elane Photography claimed that its refusal to photograph same-sex weddings or commitment ceremonies isn’t discrimination on the basis of sexual orientation. They had argued that they would take photographs of gays and lesbians and perform other duties for gays and lesbians, excluding photographing same-sex weddings. But the court noted:
However, Elane Photograph’s owners testified that they would also have refused to take photos of same-sex couples in other contexts, including photos of a couple holding hands or showing affection for each other. Elane Photography also argues in its brief that it would have turned away heterosexual customers if the customers asked for photographs in a context that endorsed same-sex marriage.
The court noted that there’s no basis to distinguish a person’s sexual orientation from conduct affirming a person’s sexual orientation. Then, the court pointed out that Elane Photography’s arguments actually prove that it did intend to discriminate on the basis of sexual orientation:
The [state’s anti-discrimination law] does not permit businesses to offer a “limited menu” of goods or services to customers on the basis of a status that fits within one of the protected categories. Therefore, Elane Photography’s willingness to offer some services to Willock does not cure its refusal to provide other services that it offered to the general public. Similarly, it does not help Elane Photography to argue that it would have turned away heterosexual polygamous weddings or heterosexual persons pretending to have a same-sex wedding. Those situations are not at issue here, and, if anything, these arguments support a finding that Elane Photography intended to discriminate against Willock based on her same-sex sexual orientation.
Then, the court rejected arguments that the anti-discrimination law violates freedom of speech and the free exercise of religion. First, the government is not compelling Elane Photography to produce any particular message. They are only compelled to serve same-sex couples to the extent that they are a public accommodation and they serve opposite-sex couples. The Supreme Court decided a case in 2006 involving a federal law that required universities to allow military recruiters on campus if they wanted to receive federal funding. Some law schools opposed the law, on the basis that they opposed Don’t Ask, Don’t Tell, and the government’s policy banning gays in the military, and challenged it under the First Amendment. The Court held 8-0 that the law schools were not compelled to speak the government’s message. The New Mexico Supreme Court held that the case is analogous to this situation:
Elane Photography is compelled to take photographs of same-sex weddings only to the extent that it would provide the same services to a heterosexual couple. See id. at 62 (speech assisting military recruiters was “only ‘compelled’ if, and to the extent, the school provide[d] such speech for other recruiters”).
The Court also held that the anti-discrimination law does not regulate content of expression:
Elane Photography has misunderstood this issue. It believes that because it is a photography business, it cannot be subject to public accommodation laws. The reality is that because it is a public accommodation, its provision of services can be regulated, even though those services include artistic and creative work. If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography’s choice of whom to photograph or not. The difference in the present case is that the photographs that are allegedly compelled by the NMHRA are photographs that Elane Photography produces for hire in the ordinary course of its business as a public accommodation. This determination has no relation to the artistic merit of photographs produced by Elane Photography. If Annie Leibovitz or Peter Lindbergh worked as public accommodations in New Mexico, they would be subject to the provisions of the NMHRA.
They suggest that Elane Photography can put a disclaimer on its website or even on its door telling customers that it opposes same-sex marriage, but that it will comply with state anti-discrimination laws. And on the Religious Freedom Restoration claim, they held that the government is not a party to this case, so that law is inapplicable.
Metro Weekly has more, including statements from those involved in the case:
In a statement, Louise Melling, deputy legal director of the American Civil Liberties Union, which filed an amicus brief in support of Willock, said the ruling was in line with guarantees made in the Constitution.
“When you open a business, you are opening your doors to all people in your community, not just the select few who share your personal beliefs,” Melling said. “The Constitution guarantees religious freedom in this country, but we are not entitled to use our beliefs as an excuse to discriminate against other people.”
A related issue, whether a private, for-profit corporation is a person that can exercise religion, is currently working its way through federal courts and is likely headed to the Supreme Court soon. Because the state Religious Freedom Restoration Act doesn’t apply in this case, the court said, “it is not necessary for this Court to address whether Elane Photography has a constitutionally protected right to exercise its religion.”
“I am grateful for and applaud the wisdom and thoughtful, thorough work of New Mexico’s highest court. The court has ensured that we may all walk with dignity and participate fully as equal citizens in the business life of our Great State.”
Vanessa Willock released a statement through her attorneys, Julie Sakura and Sarah Steadman, “I am grateful for and applaud the wisdom and thoughtful, thorough work of New Mexico’s highest court. The court has ensured that we may all walk with dignity and participate fully as equal citizens in the business life of our Great State.”