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,