The Supreme Court of New Mexico on August 22 upheld lower court rulings that a commercial photographer may not decline a commission to photograph a commitment ceremony between two persons of the same sex. The written opinion, like most judicial opinions, is long and complex, but seems so hypnotized by general concerns that it overlooks critical details in the clash of rights of the parties concerned.
Elaine Hugenin, the owner of the photography business, and her husband, had affirmed that they would not discriminate in taking portrait or other photos of any customer based on sexual orientation, but she would not participate in what was variously described by respondent Vanessa Willcock as a "commitment ceremony" or a "wedding" between two persons of the same sex, because it would involve her directly in a ceremony that is contrary to her religious beliefs.
The court, and all inferior tribunals that previously heard or reviewed the controversy, declined to distinguish between refusal to participate in a specific event, and discrimination against individuals. There are many ways to apply a number of conflicting constitutional principles to the facts of this case, as evidenced, for example, by the sharply conflicting comments on Rod Dreher's column at The American Conservative.
New Mexico's Human Rights Act forbids “any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap.”
Perhaps more emphasis should be placed on the word "individual." A ceremony is not an individual. It is an event. The photographer did not decline to provide services to any individual. For example, if a restaurant refused to seat and serve lunch to an individual or a family because their skin is dark, that is discrimination against an individual on account of race. If the restaurant declined to host a Black History Awards Dinner, that is a decision that this is not the event we want at our business, which could have any number of reasons, not all of them racial, and many of them a choice of expression.
Elane Photography's strongest argument derived from the U.S. Supreme Court ruling in Hurley et al. v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. et al. Essentially, the court ruled that a Massachusetts public accommodations law could not be applied to require the organizers of a St. Patrick's Day parade to include a Gay and Lesbian Irish Brigade, because this would be forcing one group's freedom of expression into the chosen message of another group's freedom of expression.
Another case cited was West Virginia State Bd. of Educ. v. Barnette, a 1943 case which ruled that students in public schools could not be compelled to recite the Pledge of Allegiance in violation of their religious convictions. (Jehovah's Witnesses, among others, objected to the Pledge as a violation of the Second Commandment, essentially bowing down to a graven image).
Because "the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind," the court concluded, "We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control."
As applied to a photographer, or perhaps to a printer, even to a cake decorator, the New Mexico statute arguably invades the sphere of intellect and spirit, which the state lacks jurisdiction to control, however enlightened the state's purpose. "If there is any fixed star in our constitutional constellation," the court wrote in Barnett, "it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."
The New Mexico Supreme Court set aside these two cases as inapplicable, because Elane Photography is a commercial business, not a private group expressing a political opinion. The New Mexico Human Rights Act, the court found, "does not require Elane Photography to recite or display any message... it only mandates that if Elane Photography operates a business as a public accommodation, it cannot discriminate against potential clients based on their sexual orientation."
What the court seems to overlook is that the act as applied in this case does "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Taking a portrait of a person one knows to be gay does not express a message. But as Elane Photography submitted to the court, the photographer "creates and edits photographs for its clients so as to tell a positive story about each wedding it photographs, and the company and its owners would prefer not to send a positive message about same-sex weddings or same-sex marriage."
Because the United States Supreme Court in deciding the Hurley case "suggested that public accommodations laws are generally constitutional," the New Mexico Supreme Court lightly jumped to the conclusion that "Photography, however, is an ordinary public accommodation." The court ruled that "Elane Photography has misunderstood this issue. It believes that because it is a photography business, it cannot be subject to public accommodation laws." But the statement could easily be reversed: "The court has misunderstood the issue. It believes that because Elane Photography is a public accommodation, nothing it does can be considered to contain an expressive message."
Elane Studios might well be subject to public accommodation laws in general, including laws forbidding discrimination against gays and lesbians as individuals, while the reach of the Human Rights Act might still be restrained when it acts to force an individual practitioner to participate in crafting a message the individual found objectionable. Could a gay man who owned a bakery be required to decorate a cake with the slogans of the local "Defensive of Marriage Campaign Committee"? While the Human Rights Act does not compel Elane Photography to speak the government's message, the act did employ government authority to compel the photographer's direct participation in crafting and expressing the message of another.
The New Mexico court noted, accurately, that the case before it differed from Barnette, because "The freedom asserted by these appellees" in Barnette, "does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin." There were, in the Elane Photography case, two parties each seeking to vindicate its rights against what it saw as the imposition of the other party. But that was true in Hurley also.
Justice Richard C. Bosson offered a concurrence that somewhat pompously concludes "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."
This is once again the sort of lofty rhetoric that, in substance, can cut both ways. One could just as well say that Vanessa Willcock and her female partner have to "leave space for other Americans who believe something different." Leaving room for a photographer to refrain from participating in a ceremony the photographer abhors is also "part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people." There is a sense of respect that BOTH sides to this controversy owe each other, whether or not the one party believes as the other does.
Going to find a more willing photographer is a small price to pay for citizenship and civil peace. It would probably also result in a happier wedding, and a more sensitive preservation of those happy moments for future enjoyment. There are ways to relax and work these things out. If the Irish Gay and Lesbian Brigade had simply renamed themselves the "Sir Roger Casement Memorial Marching Band" and offered a decent rendition of "Banna Strand," who could have denied them a place in the St. Patrick's Day parade?