N.M. Supreme Court rules Photographers Can’t Refuse Gay Weddings

I support any two consenting adult’s right to engage in a relationship. If those two people fall in love and decide to get married that’s fine too. I’ve discussed in detail all the reasons I believe this before.

That leads me to the incident that happened in New Mexico last year where a gay couple sued a photography company for refusing to photograph their marriage ceremony – and won.  And while I support a same sex couples right to get married I do not support the Government’s assertion that it is legally justifiable to force a business to participate in such a ceremony. According the New Mexico supreme court summary the ruling was as follows:

“The district court upheld the NMHRC’s [New Mexico Human Rights Act] determinations that Elane Photography was a “public accommodation” under the NMHRA and that Elane Photography violated the NMHRA by discriminating against Willock based upon her sexual orientation…the district court also rejected Elane Photography’s constitutional and statutory arguments based upon freedom of speech, freedom of religion, and the NMRFRA.” [source]

Discrimination:

Can a company  “discriminate” against a certain group of people based on something they perceive violates their religious beliefs? To answer that question I think it is helpful to think about the past.

There was a time not so long ago that people could legally discriminate against African Americans. And for various reasons (religion, culture, history) the law upheld those traditions. Eventually, with a lot of fighting and a lot of controversy, enough people decided that discriminating against black people was immoral and various state and federal civil rights laws were created.

At the time some people claimed that it was their constitutional right to refuse service to whoever they so chose (and maybe it was), but looking back it is pretty clear what they were doing was wrong. Is this another case of civil rights abuse?

Not so cut and dry:

Though I do not support any form of discrimination I do wonder if the nature of a wedding ceremony adds complexity to the situation. And since the same sex couple contacted Elane Photography to photograph a ceremony that they (Elane Photography) found specifically religious in nature it seems her decision not to photograph the ceremony should have been protected by the constitution.

Imagine Elane Photography was owned by a Hindu that refuse to photograph a beef barbecue cookout or Rodeo. Since Hind’s consider the cow “sacred” in a religious context they should not be forced to participate in an event they find spiritually offensive.

In either case – Hindu or Christian – the individual performing the photography service was justified by their religious beliefs to refuse service and should be protected by the constitution.  Right?

Why Elane Photography lost in court:

The big question is why the court ruled in favor of the same-sex couple when it seems so obvious (at least to me) that Elane Photography should have been protected under the constitution.  Let’s examine:

 “Free Expression”

The court ruled:

“The fact that some photography qualifies as expressive conduct entitled to First Amendment protection does not mean that any commercial activity that involves photography falls under the umbrella of the First Amendment…the threshold question is whether Elane Photography’s conduct is predominantly expressive…we [the court] are unpersuaded by Elane Photography’s argument that a photographer serves as more than a mere conduit for another’s expression…Elane Photography serves as a conduit for its clients to memorialize their personal ceremony. Willock merely asked Elane Photography to take photographs, not to disseminate any message of acceptance or tolerance on behalf of the gay community.”  (pages 9 – 12)

I asked my wife (an artist who supports same-sex marriage) about this and she disagrees with the courts ruling. She had this to say:

“Anything an artist does says something about what they believe or what they represent. A lot of professional painters refuse or avoid certain jobs because it’s not something they want in their portfolio and they don’t want to put out a certain image to future clients about their work. So, it’s crazy to think a photographer isn’t attached to her images.”

I agree with my wife.

Freedom of Religious Exercise

Elane Photography also argued for the  non-constitutionality of the NMHRA due to “religious rights”, but lost on that front too. The court ruled the following:

“The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)…the case at bar is generally applicable and neutral; it does not selectively burden any religion or religious belief. The NMHRA applies generally to all citizens transacting commerce and business through public accommodations that deal with the public at large, and any burden on religion or some religious beliefs is incidental and uniformly applied to all citizens…The NMHRA is not directed at religion or particular religious practices, but it is directed at persons engaged in commerce in New Mexico.” (p. 12-15)

Wedding Photography is not expressive and not religious. I humbly disagree. I think the court was wrong on this one.

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8 thoughts on “N.M. Supreme Court rules Photographers Can’t Refuse Gay Weddings

  1. R. Nash

    As I also support the rights of homosexuals to marry without any version of religious moral obstruction, I am increasingly dismayed that anyone would have their individual Constitutional rights to operate revoked on these grounds.

    This is the ugly step child of an unmitigated worshiping of political correctness, diversity, and the forcing of a specific type of general multiculturalism to the point of a dogma that now comes full circle and infringes upon another’s rights.

    If I believed in karma, I would say that the long standing immoral treatment by christians/jews of several minorities for the last 3500 years has come home to roost….but I don’t.

    PS: 5th paragraph, first line, swap there for their…..since my grammar and punctuation are also questionable at best. Just tryin to help a brother out.

    Reply
  2. Kendrick

    I agree Atticus. I support gay marriage and I’m conservative (when they’ll have me). The photographer made clear in this case that she would have been happy to photograph the couple in any other context (e.g., portraiture or even a commitment ceremony), just not a gay marriage. That should have satisfied the statute at issue.

    Question: suppose the couple cannot find a photographer because every photographer in a small town opposes gay marriage. Does your analysis change?

    Reply
    1. Atticus Post author

      I see where you are going with the question, but no it does not change my analysis. My hope would be that someone would recognize the market opportunity and take the gig. And while I think people would be wrong for not taking the gig in the first place; they have the right not to do it.

      Reply
      1. Kendrick

        Do you object to the statute at issue (that is, civil rights statutes that include “sexual orientation” as a protected class), or only this court’s interpretation of the statute at issue? (I’m not deliberately going anywhere with these questions, just trying to think through the implications.)

        Reply
        1. Atticus Post author

          I agree with the statute that sexual orientation should be protected, but I disagree with the court’s interpretation in the particular case. I think that artistic expression (photography, in this case) is protected by the constitution and an artist should not be forced to represent their body of work with something they disagree with based on religion.

          If it was a retailer refusing service I would have a problem with that.

          Reply
  3. Holden

    Does this now mean that photographers are prohibited by law for turning down any job on personal grounds? Seems to me a slippery slope has been possibly been created.

    I guess the safe way to play it is to lie and say you’re busy during the events you don’t wish to participate in.

    Reply
  4. philebersole

    If I were getting married again, I wouldn’t hire a wedding photographer who objected to divorced people remarrying. Things that are done unwillingly are generally done badly. Even if the photographer had a strong sense of professionalism that make him or her do a good job even when they disapproved of the job, the disapproval would detract from my enjoyment of the wedding photographs.

    I have no knowledge of the motivations of the gay couple, but I speculate that they have a lot of pent-up frustration about how they’ve been treated over the years, and they’re taking out their resentment on this wedding photographer.

    For all I know, they are within their rights under New Mexico law, but if so, I think they would be wiser not to insist on their rights in this case.

    Acceptance of same-sex marriage represents a radical change in the way we think of things. I don’t think it is necessary or right to go after every individual who can’t get with the program.

    The wedding photographer thinks as I once thought, so I can sympathize with him. If the case involved some corporation that owned a chain of photography studios, my feelings would be different.

    Reply

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