Religious Accommodations and the Elane Photography Case:

In my earlier post about the photographer who refused to photograph a same-sex commitment ceremony -- and was punished by the government as a result -- I discussed the First Amendment objections to the New Mexico Human Rights Commission's decision. But the decision may also violate the photographer's religious freedom rights under the New Mexico Religious Freedom Restoration Act. The act, which is similar to the legal rules in place in about half the states and as to federal law, provides that

A government agency shall not restrict a person's free exercise of religion [i.e., an act or a refusal to act that is substantially motivated by religious belief] unless ... the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

Elaine Huguenin's refusal to photograph a same-sex commitment ceremony does seem to be substantially motivated by her religious belief. She is therefore entitled to an exemption unless applying the law to her passes "strict scrutiny" -- "is the least restrictive means of furthering [and is essential to furthering a] compelling governmental interest."

What government interests might justify denying Huguenin the exemption? If the interest is in making sure that people have roughly equal access to services, regardless of their sexual orientation, then I doubt that requiring Huguenin to photograph the ceremony is essential to serving that interest. There surely are lots of other photographers in Albquerque, and I have no reason to think that all or even most of them share Huguenin's religious objections; if Huguenin is given an exemption, same-sex couples will still have lots of photography services available to them. And given that a wedding photographer, to do a great job, likely needs to feel some empathy with the ceremony, forcing the Huguenins of the world into photographing a ceremony that they disapprove of will likely not give same-sex couples very good service.

But if the government's view is that people have a moral right not to be discriminated against -- entirely independently of any practical burden that such discrimination imposes on them -- based on their sexual orientation, then it would appear that every instance of sexual orientation discrimination would violate that right. And if the government has a compelling interest in vindicating that right, then granting an exemption even to a few religious objectors would jeopardize that interest, and denying the objection would be essential to maximally furthering the interest. On the other hand, can New Mexico assert such a compelling interest when it itself discriminates against same-sex couples in its marriage laws?

So the religious freedom issue would turn, I take it, on what version of the government interest New Mexico courts ultimately recognize -- the first version, focusing on practical access to services, which should lead to granting an exemption, or the second, focusing on a supposed moral right not to be discriminated against, which should lead to denying an exemption (if the government is seen as having a compelling interest in protecting that right). Incidentally, in a similar area, marital status discrimination in housing against unmarried couples, the several state courts applying state religious accommodation regimes have split, based precisely on this issue of which sort of interest is involved.

EIDE_Interface (mail):
Well once again "freedom of association" is a 4-letter word to many people.
4.9.2008 4:08pm
LarryA (mail) (www):
Government hypocrisy at its finest. "New Mexico refuses to recognize the marriage, but we'll force you to photograph the ceremony."
4.9.2008 4:09pm
Edward Weston:
I think it's more than simple hipocricy - it seems to point up that the photographer is not actually discriminating on the basis of sexual orientation. She's refusing to photograph a sham ceremony that produces no marriage recognized by law. She shoots legal weddings only. She's discriminating exactly as the laws do, and it seems impossible that the State could have a compelling interest in forcing someone to ignore a distinction made by the State's own laws.
4.9.2008 4:34pm
EIDE_Interface (mail):

Hypocrisy is irrelevant. Either a person has freedom of association(FOA) without having to explicitly give any reason or they don't.
4.9.2008 4:40pm
Bill Poser (mail) (www):
My initial impression was that the law cited does not apply in this case because no "public accommodation" is involved. I have always understood a "public accommodation" to be a place such as a restaurant, bar, or hotel where services are offered to the public. Ms. Huguenin does not operate a "public accommodation" in this sense. The statutory definition of a "public accommodation" as an "establishment..." does not lead me to change my mind; the statute still seems to apply to places where a service is offered to the public, not to a service such as this that goes to the client's site. Is there any further clarification available as to the meaning of "establishment" in NM law?
4.9.2008 4:44pm
EIDE_Interface (mail):

Sorry but that doesn't fly. Sure it's not a studio photograph, but wedding photographs are basically a "public accommodation", so she has no legal leg to stand on. Her only case is a moral one.
4.9.2008 4:49pm
Bored Lawyer:
Professor, let me rephrase your inquiry:

Is the govt. interest here (1) making life bearable for minority groups or (2) thought control.

The latter, IMO, is not a legitimate govt. interest, let alone a compelling one.
4.9.2008 5:00pm
frankcross (mail):
This loses me. It's like saying Abercrombie &Fitch can refuse to hire black workers, because their store has an "expressive" content, which it of course does. This takes free speech way overboard.
4.9.2008 5:29pm
Bill Poser (mail) (www):
Two people have responded that wedding photography is a "public accommodation", but neither has answered my question. I already referred to the statutory definition as insufficient to settle the matter, at least without further information as to the meaning of "establishment".
4.9.2008 5:46pm
Adam J:
Professor Volokh- government doesn't seem to believe that "people have a moral right not to be discriminated against" - it certainly doesn't have any laws to that effect- rather it has laws that people have a right not to be discriminated against by businesses.
4.9.2008 6:05pm
There is very little clarification in New Mexico law about anything, and to my knowledge (without checking) no caselaw defining "establishment." I would assume "establishment" would be interpreted to mean something equivalent to "organization," "business," or "institution." It seems highly unlikely that any court would interpret an "establishment that provides or offers its services . . . ." to mean a "building" or a "place."
4.9.2008 6:11pm
Bill Poser (mail) (www):
If "establishment" includes any business, the statute's definition of "public accommodation" is, it seems to me, unusually broad. See, for example, the enumeration of examples in the definitions in part of the US disability law, which strike me as what is typically meant.
4.9.2008 6:54pm
Clayton E. Cramer (mail) (www):

Professor Volokh- government doesn't seem to believe that "people have a moral right not to be discriminated against" - it certainly doesn't have any laws to that effect- rather it has laws that people have a right not to be discriminated against by businesses.
Every business is made up on people. Therefore, this law does effectively deny the right of conscience.

I used to think the crowd that wanted homosexuals back in the closet were narrow-minded and crazy. It is becoming apparent that when homosexuals become sufficiently powerful, there is no freedom left to disagree or disapprove. You will be punished.

What consenting adults do in private should be done of the government's business. It's unfortunate that homosexuals stopped believing that shortly after the sodomy laws went away.
4.9.2008 8:29pm
markm (mail):
AUGGHH! I find myself in agreement with Clayton Cramer!
4.9.2008 9:23pm
Adam J:
thank you for pointing out the ridiculiously obvious Cramer, yes indeed businesses are made up of people- there's still a very significant distinction however there slick.
4.9.2008 9:43pm
Bill Quick (mail) (www): about if she refused to photograph a black-white marriage, based on "religious beliefs?"
4.9.2008 10:58pm
RBG (mail):
Adam (or shall I call you "slicker"?),

Would you mind defining the relevant difference? Is it that no business has First Amendment rights? Does that principle extend to the New York Times? If not, why not?
4.9.2008 11:25pm
ed (mail) (www):

Ok then. Reverse it.

If a gay individual or company refused to provide a service to a religious person, based on their expressed religion, then that gay individual or company can then be compelled to do so?

example: So if I were to hire a gay photographer to photograph me and some friends waving banners that read "Gays will burn in Hell!" and he/she turns the hire down, then I can sue and win? And if I cannot then what does that say about the legality of it? And if I can, then haven't we entered into the Twilight Zone of Reason?
4.9.2008 11:47pm
Adam J:
RBG- the difference should be obvious, people, even minorities and gays, need the services of businesses to survive, and therefore businesses should be forced to serve them. They don't, however need to be invited over for tea by the bigots that live across the street, and therefore the bigots shouldn't be forced to do so.
4.10.2008 12:05am
EIDE_Interface (mail):

Until it happens, we have to assume all bigots are hetero-fascists.
4.10.2008 1:04am
[Comment reposted from yesterday due to my technical incompetence].

The Commission Ruling is interesting. As a NM attorney that frequently practices before the NM Human Rights Bureau in employment cases, I was surprised that there was a Commission Hearing and ruling. They typically aren't worth the effort because the loser simply "appeals" to district court and receives a trial de novo. If the Complainant is represented, the Hearing (in my experience) is usually waived, and a Right to Sue letter is issued.

Here though, the Ruling only awards attorney fees--no compensatory damages and no injunction. I would guess that the ceremony took place and the Complainant found another photographer for the same or less cost. If the Hearing had been waived, the subsequent lawsuit would presumably have been dismissed for failure to allege damages (punitives are not available). This would seem to cut against the state's potential argument that enforcing the provision in this way is "essential" to ensuring access to photography services.

[Relatedly, the Ruling doesn't provide much info about the facts and law that were considered, but there should be a Probable Cause Determination and a Commission Complaint that outline the case against the photographer.]
4.10.2008 12:17pm
ElvenPhoenix (mail):
I find the whole case noxious. I'm a photographer (doing a wedding this weekend), and there is no way that anyone can force me to take pictures I don't want to take. No one.

As a photographer, I'm a contractor. People contract me for a service. They ask if I will, we discuss terms and if we come to an agreement I do the work.

I also "contract" at times as a temporary administrative assistant. If I don't like an establishment that my company places me at (or the person I'm supposed to be assisting), I have the freedom to say I don't want to work there.

Why would I be forced into a contract I don't want as a photographer, when I cannot be forced into a contract as an admin? Both are cases of providing a service. Believe me, there are TONS of photographers doing weddings, so there is no problem finding someone who wants the work. Likewise, there are people desperate enough for work that they will put up with an abusive office environment. I'm not one of them.

As to the the photographs. Legally I own the copyright to any photograph I take. Legally, you own your own image. That's why a model release is required when doing a photo shoot.

I can choose to cede my copyright to the people I do business with (which is the way I operate as that seems fair to me), or I can choose to force them to go through me for reproductions of ANY of the photographs I take. Check out Walmart, Walgreens, or any other photo reproductive service and see their disclaimer regarding copyrighted images. Oh, and I can charge whatever fee I want for the copyrighted images. If you don't like the price go elsewhere.

Legal issues aside, wedding photography is extremely personal. You only get one shot at it, so to speak. No one with any sense would even attempt to contract that job out to someone who has religious, moral, or any other objections to the service. If the photographer didn't like the fact that it was a mixed-race couple (not likely, but possible) the mixed-race couple would be foolish to try to force the issue. Again, there are PLENTY of photographers willing to do the job who will do a far better job than someone who doesn't want it.

In short, there should be freedom of association, especially where there are plenty of other people available - or even eager - to provide a contracted service. Believe me, this same sex couple was not denied the opportunity to have a photographer at their "marriage" or commitment ceremony. Nor should they be. Harassing the photographer for her sincere religious beliefs should be anathema to normal Americans.

Oh, and just for the record, even though I'm a Christian and don't believe in gay marriage, I probably would have accepted the job if I liked the people involved - after informing them of my religious objections. If they still wanted me after that.
4.10.2008 10:52pm