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Religious Exemptions and the Elane Photography Case:

I'm wondering whether the religious exemption question might be getting lost in our discussion of the compelled speech issue. The compelled speech issue is a First Amendment question, and thus arises everywhere, and for all photographers, so that is more important. But the religious exemption issue remains significant, since about half the jurisdictions have a general religious exemption rule (by statute or by interpretation of the state constitutional provision).

Recall that the New Mexico Religious Freedom Restoration Act 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.

Assume, as seems to be the case, that Elaine Huguenin's refusal to photograph a same-sex commitment ceremony does seem to be substantially motivated by her religious belief. Is applying the antidiscrimination law to Huegenin really "essential to further a compelling governmental interest," especially given that there are doubtless many other Albuquerque photographers who would have no religious objections to photographing same-sex ceremonies? Will it even materially advance whatever compelling governmental interest is present, given that forcing photographers to photograph events that they find repugnant is not likely to produce the warm, affectionate photographs that couples want?

I discussed this more here, but I wanted to ask what you folks -- and especially those who defend the New Mexico Human Rights Commission decision -- think about this.

GaltLives:
It seems that gays and those strongly left are generally anti-religion so I don't think it would make much difference whether it was speech or religion.

I wonder if the commenters here who defend the outcome are mostly gays who see acceptance as a higher value than free speech or religion.
4.9.2008 11:53pm
Zhou Enlai (mail):
Well, GaltLives, I am "left" (thought not strongly) and generally "anti-religion," but do not see acceptance as a higher value than free speech, and I do agree with Elane in this case. But not because I value the freedom of religion, but because I value the freedom of the individual to do as she or he sees fit. I believe you misunderstand the "freedom of religion." It is freedom from state intervention, and NOT the statutory "right" created here, a paternal, protection of one's beliefs or "free exercise" by the very government that those beliefs should be protected from.

This New Mexico statute is odd. It attempts to encode the establishment clause of the First Amendment, though it does so with a strict scrutiny test ("compelling interest") instead of the balancing test normally imposed by federal courts. An accidental interference with religious exercise should be allowed, i.e. remove your burkha during a driver's license photo. Once the interference becomes purposeful, then it does not pass the balancing test. According to N.M., even an incidental interference with the practice of religion would have to be for the purpose of a "compelling state interest" in order to pass muster.

This can not be; after all, in order for the state to avoid establishing a religion in contravention of the First Amendment, they must at some point restrict free exercise (Rehnquist's famous "play in the joints").

And surely GaltLives would not agree that the same-sex couple could claim it is THEIR religious right to have a wedding, and therefore NM must recognize legally their marriage. There exists no such right; the state may not prevent them from believing so, but they are not compelled to accept their exercise of this religious belief.

My point: the New Mexico statute creates a "right" that pretends to be fundamental, but it is not, and should not be. No one has a right to engage in behavior that, though they think it adheres to the law of their god, is illegal.

I think Elane is correct in this case not because she has a "right" but because she had no duty to act, two very different things. We should be hesitant to create "rights" as they are misused and abused. Elane may use this statute to avoid taking pictures, but tomorrow someone will use it to avoid hiring non-Christians at their company, for religions reasons, and the state is helpless short of demonstrating a compelling interest. This is not religious freedom, this is religious tyranny.
4.10.2008 12:32am
Nathan_M (mail):
I haven't posted before because I have no opinion as to whether this violates the First Amendment.

I think you are implicitly defining the government interest here much too narrowly, and that is why you don't see how it will be advanced. You seem to think the government interest is in assuring that homosexuals can obtain warm and affectionate wedding photographs.

It's not. The government's interest is ending discrimination against people because of their sexual orientation.

The fact that the couple can probably find someone else to take their photographs doesn't eliminate the discrimination.

Imagine a restaurant refused to serve blacks, and in its defence it pointed to all the other establishments that will. It could argue that the government has no interest because blacks can get dinner elsewhere, and their waiters would probably be surly anyway. This is patently ridiculous.

The government's interest in these sorts of cases isn't limited to making sure members of a protected group have access to the same public accommodations as the rest of us, as long as they're willing to put in a bit more work to find a business that doesn't discriminate. The government's interest is in ensuring that everyone has the same access to public accommodations. It's in ensuring that homosexuals have the same dignity and worth as heterosexuals, and in preventing them from being treated as third-rate citizens.

Now, no doubt this interest is in conflict with other interests, such as Elane's right to be a bigot. I'm not saying which interest should prevail, but I'm very puzzled by the suggestion that the government has no interest in ending discrimination if there are other businesses around which won't discriminate.
4.10.2008 12:36am
Lior:
I think the "religeous freedom" aspect is better ignored. If it is really true that the photographer's right to refuse depends to any extent on the fact that her personal philosophies happen to be religious in nature, then there is something seriously, seriously wrong with the laws in New Mexico.
4.10.2008 12:48am
Zhou Enlai (mail):
Nathan_M: Let's assume you are a audio technician. You believe Elane to be a bigot, racist, and homophobe, and these are all opinions you strongly disagree with, and in fact find abhorrent. Do you provide audio at her next rally of bigots? Would you find it repellant if you were forced to?

I don't ask these questions to be argumentative, but rather because they're interesting questions, and I do not know the answer. Where does personal autonomy end and government interest sufficient to coerce begin? Maybe it is where the personal decision to "discriminate" is not so burdensome as to deprive another of their civil liberties. Where zero restaurants in the 1960s South served Black patrons, then government coercion is justified. Where one photographer refuses to do a same-sex wedding, then maybe the government has no role to play, until such refusal becomes systematic and actually imposes a harm that is more than personally offensive and rises to the level of a constitutional infringement. I do not honestly believe that there were fundamental rights that were infringed here, though certainly I find Elane's position personally repugnant.

Also, keep in mind, there is a remedy here: a civil suit in the private sector. The same-sex couple is not helpless against Elane Photog., nor should they be.
4.10.2008 12:52am
bobolinq (mail):
I guess I find it hard to believe that New Mexico's RFRA could be meant to sweep so broadly that it would protect the photographer in this case. New Mexico prohibits businesses (roughly speaking) from discriminating against people because they are gay. Most anti-gay sentiment is framed in religious terms. So if businesses can discriminate because their owners dislike gays for religious reasons, this is tantamount to saying that almost all business owners who dislike gays are free to discriminate against them. Why not just repeal the anti-discrimination law and be done with it?

I've approached the question this way because I don't think there's any way to put content into the "compelling interest/least restrictive means" test here. If the "interest" is ensuring antidiscrimination at a statewide level, then the only means of doing that is forbidding antidiscrimination.
4.10.2008 1:08am
bobolinq (mail):
Oops: the last two words of the preceding post should read "forbidding discrimination."
4.10.2008 1:10am
Nathan_M (mail):
Zhou Enlai, I'm not an audio technician, I'm a lawyer. If I were qualified to practise in New Mexico, which I'm not, I would be willing to represent either side in this case.

There's obviously a trade off here. I'm actually quite torn about where the line should be drawn, and when it's appropriate for human rights laws to prevent private discrimination. This case is close to the border of where I would draw the line, and I'm not 100% sure which side I think it falls on. I see it as a challenge in balancing different rights, though, so I can see how the HRC's action here advances a compelling governmental interest, which is what Professor Volokh asked about.

I'm not sure why you say another possible remedy is a civil suit. In the absence of human rights legislation you can't sue a business for discriminating against you by refusing your business. So the couple here probably had no other remedy.
4.10.2008 1:46am
ERH:
I oppose religious exemptions. When you enter the commercial sphere you should leave your religion at the door. If your religion would forbid you from taking photos of homosexuals commitment ceremonies, don't become a wedding photographer.
4.10.2008 9:32am
x:
Where zero restaurants in the 1960s South served Black patrons, then government coercion is justified.

Another thing to keep in mind when making analogies to segregation is that in the 1960s South, segregation was very often *government-enforced*. Governemnt coercion as remedy is far more justified if government used to abet discrimination. AFAIK, no government has every passed a law prohibiting gays or lesbians from having their picture taken.
4.10.2008 9:35am
Guestster:
...in the 1960s South, segregation was very often *government-enforced*. Governemnt coercion as remedy is far more justified if government used to abet discrimination. AFAIK, no government has every passed a law prohibiting gays or lesbians from having their picture taken.


True, no such law has ever been passed, but government most assuredly has been used to abet discrimination against gays, with anti-gay sodomy laws.
4.10.2008 11:28am
Hans Bader (mail) (www):
No, holding Elane Photography liable can't be justified under the strict scrutiny mandated by New Mexico law and the New Mexico Religious Freedom Restoration Act.

Eradicating sexual-orientation discrimination is not a compelling state interest outside the employment context. See Curran v. Mt. Diablo Council of Boy Scouts of America, 29 Cal.Rptr.2d 580 (Cal. 1994) (boy scouts were protected by First Amendment freedom of expressive association against being forced by California public accommodation and gay-rights laws to include gay people as members and leaders, since being forced to do so did not serve a compelling state interest).

Moreover, there is an additional, alternative First Amendment defense that applies here, unrelated to freedom of religion: freedom from compelled speech. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).

The anti-discrimination statute is being applied by the Commission in a very peculiar way. (I say that as an attorney who used to help adjudicate discrimination cases at the U.S. Department of Education, Office for Civil Rights). And the First Amendment defense is straightforward.

Photography is expressive; most businesses (say, selling hot dogs) are not. Ruling in favor of the photographer is not only consistent with the statute (which forbids discrimination based on customers' sexual orientation, not based on the ceremony they wish to capture on film), but even if that were not the case, ruling in favor of the photographer would not carve out a big exception to the statute's reach or vitiate any important state interests.

Photography is inherently expressive. That's why copyright exists in photographs.

Since the photography is expressive, the case should be governed by the U.S. Supreme Court's decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), which held that a state's gay-rights law and public-accommodation law could not be used to force an expressive activity (a parade, in that case) to embrace a message of support for gay causes, because doing that violated the First Amendment.

Thus, the New Mexico Human Rights Commission's ruling against Elane Photography and Elaine Huguenin in the Vanessa Willock case should be reversed.
4.10.2008 12:00pm
Joe Bingham (mail):
And surely GaltLives would not agree that the same-sex couple could claim it is THEIR religious right to have a wedding, and therefore NM must recognize legally their marriage.

He wouldn't claim it because it's a non sequitor, right? They do have a legal right to have a wedding; that's different from a right to get a particular social designation from the government, it seems to me.
4.10.2008 12:03pm
Hans Bader (mail) (www):
The Curran case I cited above, which noted that eradicating sexual orientation is not a compelling interest outside the employment context, should have read as follows:

Curran v. Mount Diablo Council of the Boy Scouts of America, 48 Cal.App.4th 670, 29 Cal.Rptr.2d 580 (Cal.App. 1994), aff'd, 952 P.2d 218 (Cal. 1998).
4.10.2008 12:08pm
David M. Nieporent (www):
I oppose religious exemptions. When you enter the commercial sphere you should leave your religion at the door. If your religion would forbid you from taking photos of homosexuals commitment ceremonies, don't become a wedding photographer.
Yes, you keep invoking the words "commercial sphere" as if they were significant. Why? What is a "commercial sphere" and why does it differ from any other? The New York Times is in the "commercial sphere." Should it have to print whatever news stories the government tells it to, since it should leave its personal beliefs at the door?
4.10.2008 3:00pm
Hans Bader (mail) (www):
To overcome Elaine Huguenin's freedom of religion and free speech rights, the New Mexico Human Rights Commission would need, among other things, to show a compelling interest in restricting her speech. But it cannot.

The only possible interest it could rely on here is the state's interest in eradicating sexual orientation discrimination.

But that interest is not compelling, for two reasons.

First, it cannot be treated as compelling for purposes of this case because the state of New Mexico itself discriminates based on sexual orientation in a number of contexts, as well as itself not treating civil-commitment ceremonies as being analogous to marriages, so it is barred from arguing that eradicating discrimination based on sexual orientation is a compelling interest. That's what the Supreme Court made clear in its Lukumi decision, where it held that a local government could not treat an important interest as compelling where it inconsistently failed to advance that interest, even when in contexts where doing so would have cost nothing in terms of First Amendment rights. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546-47 (1993) ("Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling"). (This point is developed at length in the briefs in Thomas v. Anchorage Equal Rights Commission and Lutheran Church v. FCC.)

So holding Elane Photography liable can't be justified under the strict scrutiny mandated by New Mexico law and the New Mexico Religious Freedom Restoration Act.

Second, eradicating sexual-orientation discrimination is simply not a compelling state interest outside the employment context. See Curran v. Mt. Diablo Council of Boy Scouts of America, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (boy scouts were protected by First Amendment freedom of expressive association against being forced by California public accommodation and gay-rights laws to include gay people as members and leaders, since being forced to do so did not serve a compelling state interest), aff'd, 952 P.2d 218 (Cal. 1998).

Moreover, there is an additional, alternative First Amendment defense that applies here, unrelated to freedom of religion: freedom from compelled speech. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).

The anti-discrimination statute is being applied by the Commission in a very peculiar way. (I say that as an attorney who used to help adjudicate discrimination cases at the U.S. Department of Education, Office for Civil Rights). And the First Amendment defense is straightforward.

Photography is expressive; most businesses (say, selling hot dogs) are not. Ruling in favor of the photographer is not only consistent with the statute (which forbids discrimination based on customers' sexual orientation, not based on the ceremony they wish to capture on film), but even if that were not the case, ruling in favor of the photographer would not carve out a big exception to the statute's reach or vitiate any important state interests.

Photography is inherently expressive. That's why copyright exists in photographs.

Since the photography is expressive, the case should be governed by the U.S. Supreme Court's decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), which held that a state's gay-rights law and public-accommodation law could not be used to force an expressive activity (a parade, in that case) to embrace a message of support for gay causes, because doing that violated the First Amendment.

Thus, the New Mexico Human Rights Commission's ruling against Elane Photography and Elaine Huguenin in the Vanessa Willock case should be reversed.
4.10.2008 3:01pm
Caliban Darklock (www):
ERH:

I'm Jewish. I don't conduct business on Shabbat, which begins at sundown on Friday. I have on more than one occasion faced disapproval from non-Jewish clients who want me to work late on Friday. The usual reasoning is that we have a Monday morning deadline. My counterproposal is usually that I could come in and work on Sunday. The client generally refuses this counteroffer, on the grounds that he is a christian and attends church on Sunday.

Which, if either, of us may compel the other to violate his religious beliefs on the grounds that we are operating in the commercial sphere?
4.10.2008 3:24pm
DB Schwimmer:
Which, if either, of us may compel the other to violate his religious beliefs on the grounds that we are operating in the commercial sphere?

Enough with the easy questions, Darklock! The "Christian" in your question is obviously a fraud. That makes him the favored mascot, who wins every time.
4.10.2008 5:44pm
Clayton E. Cramer (mail) (www):

True, no such law has ever been passed, but government most assuredly has been used to abet discrimination against gays, with anti-gay sodomy laws.
1. Many states didn't have anti-gay sodomy laws. Idaho, for example, has a direct descendant of Henry VIII's "crime against nature" statute. It prohibits all non-vaginal intercourse, and makes no distinction based on heterosexual or homosexual. If you wanted to argue that only homosexuals were prosecuted, that might be an interesting claim. But since prosecutions under these statutes are extraordinarily rare (except in public places), you can hardly compare them to the mandatory segregation laws.

2. Even states that did adopt laws that were explicitly for homosexuals, such as the Texas statute overturned in Lawrence were very, very seldom enforced, for the simple reason that unless you were doing it in public, it was very unlikely that anyone filed a complaint.

So the comparison falls down, badly. And I think you would have to look long and hard to find examples of state or federal laws that mandated discrimination against homosexuals. At most, you might find some 1950s and 1960s uses of state liquor licensing against gay bars.
4.10.2008 6:46pm
Clayton E. Cramer (mail) (www):

mandated discrimination
should read

mandated private business discrimination
4.10.2008 6:50pm