BY ARTHUR S. LEONARD | The New Mexico Supreme Court unanimously ruled on August 22 that a wedding photography business violated the state’s Human Rights Act by refusing service to a lesbian couple for their commitment ceremony, finding that the owners’ religious and free speech rights were not unconstitutionally violated by this result.
Vanessa Willock contacted Elane Photography LLC by email to inquire about booking the company for a commitment ceremony with her partner, Misti Collinsworth. Elaine Huguenin, who owns the business with her husband, declined, informing Willock they only do “traditional weddings.” When Willock pressed her, Huguenin replied specifically that they “do not photograph same-sex weddings.” Collinsworth then contacted Elane about photographing a wedding without mentioning the participants’ genders, and Huguenin sent her pricing information and an invitation to meet. Huguenin followed up with a second email when she got no response.
Willock and Collinsworth filed a discrimination charge against Elane Photography, citing New Mexico’s ban on discrimination because of sexual orientation by public accommodations. Elane never claimed it is not a public accommodation, but argued it is privileged under both the First Amendment of US Constitution and the New Mexico Religious Freedom Restoration Act to decline to photograph same-sex ceremonies as a matter of freedom of expression and free exercise of religion. The New Mexico Human Rights Commission ruled against Elane, which appealed to the state courts.
Both the trial court and the court of appeals rejected Elane’s arguments, and the State Supreme Court agreed in an opinion by Justice Edward L. Chavez. Elane could yet petition the US Supreme Court.
Elane’s most serious arguments were the First Amendment claims, since providing photography services for same-sex ceremonies does, to some extent, involve the business’ owners in “expressive activities” that violate their religious and moral views. But the court found a substantial body of precedent for commercial businesses being required to comply with religiously-neutral anti-discrimination laws.
Interestingly, the court analogized its findings on the free speech claims to the US Supreme Court’s decision upholding the government’s requirement that law schools receiving federal funds allow military recruiters on their campuses, despite the schools’ opposition to the Don’t Ask, Don’t Tell policy then in effect. The schools complained that allowing recruiters on campus might appear as an endorsement of the military’s policies, so a requirement they do so violated their expressive rights, but the Supreme Court held the schools were free to disclaim any approval of the military policy while allowing access for the recruiters.
A similar analysis applied to the free exercise of religion claim.
“Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs,” wrote Justice Chavez. “They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.”
In a concurring opinion, Justice Richard C. Bosson gave an eloquent explanation of the rationale for the court’s opinion. “The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead,” he wrote. “The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.
“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.”
Alliance Defending Freedom, a law firm specializing in defending religious liberty and opposing gay rights claims, provided representation to the Huguenins in this case. Julie Sakura and Sarah Steadman of Santa Fe and Tobias Barrington Wolff, a University of Pennsylvania law professor, represented Willock and Collinsworth.