Archive | Same-Sex Marriage

Compelling Speech by Commercial Photographers, Freelance Writers, Musicians, and So On

I just finished reading the New Mexico trial court’s Elane Photography decision, and thought I’d blog a bit about it. Let me begin with the compelled speech question.

Elane Photography — a husband-and-wife company in which the wife, Elaine Huguenin, is the head photographer (and I think the only routine photographer) — refused to photograph a same-sex wedding. This, the court held, violates state antidiscrimination law, since commercial photographers, as well as “film editor[s], commercial music composer[s], commercial musician[s], graphic designer[s] or any other creative professional[s] whose services are available to the public,” are treated as “public accommodation[s]” under New Mexico law. And the refusal to photograph same-sex weddings constitutes sexual orientation discrimination in public accommodations, which state law bans.

But, Huguenin says, requiring me to photograph same-sex weddings on the same terms as other weddings compels me to create expressive works. The First Amendment presumptively bars speech compulsions as well as speech restrictions; creating photography is a form of speech; therefore, I can’t be compelled to create photography, any more than I can be compelled to say things or display things on my property. Not so, says the court:

Plaintiff is not being asked to represent the government’s position …, nor to alter its message …. Plaintiff’s message is not and has never been about same-sex marriages. Rather, its message is fine photography of special moments. Unlike the parade [involved in Hurley, a case in which the Supreme Court held a parade organizer could not be legally compelled to let a gay/lesbian/bisexual group’s float into its parade -EV], Plaintiff’s final message is not its own. Instead, Plaintiff is conveying its client’s message of a day well spent. As Defedant Willock states, Plaintiff is really a conduit or an agent for its clients. As such, the Court’s finding

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New Mexico Trial Court Upholds Sanctions Based on Wedding Photographer’s Refusal to Photograph a Same-Sex Wedding Ceremony

The case is Elane Photography, LLC v. Willock, and I blogged about it here, when it was being considered by the New Mexico Human Rights Commission. The decision was handed down last Friday, but the opinion wasn’t distributed until yesterday. I hope to blog more about it today, but here’s my analysis from last year:

Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane’s work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock’s same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney’s fees and costs….

[The order rests] on two interpretations of state law: (1) This sort of photography company constitutes a “public accommodation,” defined by state law “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.” (2) A refusal to photograph a same-sex commitment ceremony constitutes sexual orientation discrimination, which New Mexico law forbids. These may or may not be sensible interpretations of the statutory text. But the result seems to me to likely violate the First Amendment (though there’s no precedent precisely on point).

[1. Compelled Speech.] Photography is an art, and Huguenin is an artist. It may not be high art, but it embodies a wide range of artistic choices (especially since she says she takes a “photojournalist” approach, rather than just doing normal staged photos). And though she sells the art to its subjects, that is of course part of a long and continuing tradition in the arts, including

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Same-Sex Marriage Ban Doesn’t Preclude Recognizing Same-Sex Couples’ Parental Rights

From Prashad v. Copeland: “[Ms.] Prashad, [Mr.] Copeland, and [Mr.] Spivey entered into a surrogacy agreement in Minnesota. Prashad was artificially inseminated with the sperm of both Copeland and Spivey. As a result, A.C.C. was born in Minnesota on August 10, 2004. Copeland was listed on the birth certificate as A.C.C.’s father, even though no DNA test had verified biological paternity at that time.” Eventually, as a result of the litigation, a paternity test was done and “Spivey was determined to be the biological father of A.C.C.”

At first, the parties got along, with Copeland and Spivey raising the child but Prashad sometimes visiting the child (who was living in North Carolina with Copeland and Spivey). Eventually, though, Prashad sought custody of the child. The North Carolina court entered an order under which “Copeland and Spivey were awarded primary legal and physical custody of A.C.C.; Prashad was awarded secondary legal and physical custody.” Copeland and Spivey later moved to Virginia, and Prashad sought custody again, claiming custody in preference to Spivey, and asserting that Copeland could have no parental rights at all.

The Virginia Court of Appeals held that the North Carolina order must stand, on full faith and credit principles. But then it had to deal with Prashad’s objection that recognizing the same-sex couple’s parenting rights was barred by the federal Defense of Marriage Act, and by Virginia constitutional and statutory provisions that barred recognition of same-sex marriages or civil unions; here, for instance, is the relevant constitutional provision:

That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the

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Same-Sex Marriages, the Spousal Privilege Not To Testify, and Iowa vs. Federal Law

From the Des Moines Register:

Marla Stevens married Phyllis Stevens in a civil union in Toronto, Ontario, in 2005. [EV adds: Stevens’s response to the motion to compel say they “were married pursuant to civil ceremony in Canada on July 26, 2003,” which sounds like an outright marriage, not just a civil union.]

Marla Stevens is asserting that she cannot be required to give a deposition in a [federal] lawsuit filed by her partner’s former employer, Aviva USA, partially because Iowa law says “neither husband nor wife” can be questioned in a legal proceeding about any communication that took place between them.

A similar issue is arising in a federal criminal case. A few thoughts:

1. The federal criminal case, and the federal law (Computer Fraud and Abuse Act) claims in the civil case, follow the federal law of evidentiary privileges. And under the federal Defense of Marriage Act, federal statutes and regulations that provide special treatment to marriages or spouses apply only to opposite-sex marriages (This is a separate provision from the one that provides that states need not recognize out-of-state same-sex marriages.) That provision would be unconstitutional only if the federal courts conclude that there’s a constitutional right to same-sex marriage on equal terms with opposite-sex marriage; the Full Faith and Credit Clause challenges to DOMA wouldn’t apply here, because the issue is whether federal law can treat opposite-sex marriage as the only sort of marriage that gets various federal privileges.

But most of the federal law of evidentiary privileges, including the spousal confidential communication privilege, is not statutory; it’s common law, created by courts. The enabling statutory provision for that — Rule 501 of the Federal Rules of Evidence — doesn’t use the terms “marriage” or “spouse,” and thus isn’t covered by DOMA. The [...]

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Supreme Court Blocks Washington State Officials From Disclosing Names of Anti-Same-Sex-Marriage Petition Signers,

with one Justice dissenting. So reports SCOTUSblog; I’ll post more when I learn more.

My post about Justice Kennedy’s similar action yesterday is here. For now, I continue to think that the Ninth Circuit’s decision overturning the district court’s preliminary injunction against release of the signatories’ names — and thus allowing the state to release the names — is correct, and I think the Supreme Court won’t even agree to reconsider the decision on the merits. But it makes sense that the Court would temporarily stay the opinion below, at least pending the state’s filing its arguments and possibly pending the Court’s considering the petition for certiorari (which in turn won’t come until after the Ninth Circuit announces its reasoning): Once the names are released, the attempt to enjoin the release will become moot, so it makes sense to take some time now to consider the matter on the merits.

Thanks to Rick Hasen (Election Law Blog) for the pointer.

UPDATE: Justice Stevens was the one dissenter, but he didn’t issue a written opinion explaining his vote (and neither did the majority). The order says,

The September 10, 2009 order of the United States District Court for the Western District of Washington, case No. C09-5456BHS, granting the motion for preliminary injunction shall remain in effect pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

That makes sense, for the reasons I mentioned above — in order for the Court to even be able to consider the petition for certiorari, the names [...]

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Justice Kennedy Temporarily Stays Release of Names of People Who Signed the Washington Anti-Same-Sex Marriage Initiative

I can’t find the order online yet, but the AP so reports:

Kennedy’s ruling today temporarily blocks a federal appeals court ruling last week that ordered the release of the names. Kennedy said his order would remain in effect while he considers a request by a pro-marriage group that asked him to reverse the appeals court ruling.

The case involves Referendum 71, a ballot initiative that asks Washington voters to approve or reject the state’s so-called “everything but marriage” law, which grants registered domestic partners the same legal rights as married heterosexuals.

As I mentioned early this morning, I think that the Ninth Circuit’s decision overturning the district court’s preliminary injunction — and thus allowing the state to release the names of the signatories — is correct, and I think the Supreme Court won’t even agree to reconsider the decision on the merits. But it makes sense that Justice Kennedy would temporarily stay the opinion below, at least pending the state’s filing its arguments and possibly pending the Court’s considering the petition for certiorari (which in turn won’t come until after the Ninth Circuit announces its reasoning): Once the names are released, the attempt to enjoin the release will become moot, so it makes sense to take some time now to consider the matter on the merits.

Thanks to Richard Winger’s Ballot Access News blog for the pointer. [...]

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Ninth Circuit Overturns Preliminary Injunction Restraining Release of Names of Anti-Domestic-Partnership Petition Signers in Washington State:

The Ninth Circuit order states that “An opinion setting forth the reasons for the court’s reversal of the Preliminary Injunction Order shall be issued expeditiously and in due course,” so I can’t speak directly to the Ninth Circuit’s reasoning. But for reasons I mentioned when the release of the signers’ names was first enjoined, I think the injunction was mistaken: There is no First Amendment right to block the state from releasing the names:

I don’t think that secrecy of signatures is constitutionally mandated by the First Amendment, just as I don’t think that a secret ballot is constitutionally mandated by the First Amendment. True, the anonymous speech precedents bar the government from requiring that people sign their political statements. But political statements are just speech. Signing an initiative, referendum, or recall petition is a legally operative act — it helps achieve a particular result not just because of its persuasiveness, but because it is given legal effect by the state election law.

The government is surely entitled to require that people who want their signature to have such a legally operative effect must disclose their identities to the government. And I see no reason why the government might not then disclose those identities to the public, who after all are in charge of the government. To do that is to inform the people about who is taking legally operative steps to change the state’s laws (or the state’s elected representatives, in the case of a recall).

Informing the public about this might well deter such legally operative acts, though of course leaving people free simply to engage in persuasive speech, which can indeed generally be done anonymously rather than in legally significant signing of petitions. But I don’t think that deterrence is unconstitutional, especially since the legal significance

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