In Elane Photography v. Willock, the New Mexico state supreme court has decided to reject a professional photographer’s statutory and constitutional claims that she could not be required to photograph a lesbian couple’s commitment ceremony. Filed under a state law barring discrimination based on sexual orientation in “public accommodations” (which nowadays is often defined to include small businesses that offer services to the public), the case has been kicking around in the state’s court system since 2006. The next stop for the photographer would be the United States Supreme Court since there are First Amendment free speech and free exercise claims.
The decision comes down to three basic conclusions:
(1) The state’s antidiscrimination law applies. Discrimination against a same-sex couple (married or not) is discrimination based on “sexual orientation” and is prohited in public accomodations under the statute. That’s because the conduct of having, for example, a same-sex commitment ceremony (regardless of whether it’s a legal marriage or just a private celebration) is closely tied to homosexuality. This conclusion seems right as a matter of logic and precedent. Rejecting just such an attempt to distinguish conduct and status in Christian Legal Society v. Martinez, the Supreme Court held:
Our decisions have declined to distinguish between status and conduct in this context. See Lawrence v. Texas, 539 U.S. 558, 575, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” (emphasis added)); id., at 583, 123 S.Ct. 2472 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).
(2) The First Amendment does not protect the photographer. There is no free-speech right of a business to discriminate in providing services to the public. While the act of taking photographs may contain expression, the government mandates no particular message. The court argued that the photographer has the choice not to be in the business of taking pictures at all, but if it offers services to the public it must do so on the antidiscrimination terms mandated by the state. The court thus distinguished a line of cases involving compelled speech that the Cato Institute, Eugene, and I argued in an amicus brief should lead to reversal of the lower state court decision. It also rejected the idea that especially creative and expressive professionals (like photographers) should be exempted under the First Amendment while more mundane and generic services (like cake-baking) should not be. The court offered that Elane Photography could post a disclaimer on its website or put up a sign in its studio declaring its opposition to same-sex marriage. It’s unclear from the opinion, however, whether such a disclaimer would be constitutionally guaranteed expression or simply a matter of legislative grace that could be withdrawn if the state decided, for example, that such signs created a hostile environment for classes protected by the state antidiscrimination law.
The court also rejected the free exercise claim on the grounds that the antidiscrimination law was one of general applicability and was not targeted at religion. The free-exercise holding seems right under existing precedents. (I’ll leave to one side, as did the New Mexico court, the continuing uncertainty created by Employment Division v. Smith (1990) over whether a “hybrid” (e.g., a free exercise + free speech) claim might trigger greater judicial scrutiny.)
(3) The state Religious Freedom Restoration Act does not apply. The court held that the consequent burden on religious belief was not subject to strict scrutiny under the state’s RFRA because the lawsuit did not involve the government as a party. This might be the right reading of the statute, but if so it is a rather stingy statutory protection of religious liberty against governmental burdens since government can burden rights by acting on its own or by making its court system and enforcement apparatuses available for others to do in its stead (e.g., New York Times v. Sullivan).
Finally, while I disagree with parts of the court’s decision, it is not an especially surprising opinion and does not herald a new dawn of repression. The New Mexico litigation has been an especially prominent red flag waved by opponents of gay marriage over the past few years, but it doesn’t contribute anything to the debate over that issue. Opponents of SSM have argued that the case is an example of the kinds of burdens religious traditionalists will face if same-sex marriage is legalized. I have argued (see, for example, here), as have many others (see especially the excellent work by Doug NeJaime), that cases of this kind have nothing to do with the state of marriage law and everything to do with the state of antidiscrimination law. The case was filed and has come to its conclusion at a time when New Mexico did not have same-sex marriage (it still doesn’t, though that may change), when the lesbian couple had not even sought a marriage license, and when state antidiscrimination law already addressed the kind of choice the photographer made not to serve people based on sexual orienation. It continues to be the case that the vast majority of gay couples will have the good sense not to seek the services of wedding professionals who oppose their marriages, and that even wedding professionals who oppose their marriages will be happy to take their money.