The Volokh Conspiracy

A commenter suggested that a hypothetical involving a photographer who refuses to photograph a pro-Nazi ceremony was an “absurd example,” apparently because of the absence of statutes that make it illegal to discriminate against Nazis.

Most jurisdictions don’t ban discrimination based on political affiliation, but some do. The D.C. antidiscrimination law to which I linked in an earlier post expressly bans discrimination based on political affiliation in public accommodations, with political affiliation defines as “the state of belonging to or endorsing any political party.” It is thus illegal to discriminate against a person in public accommodation based on his he belonging to or endorsing the American Nazi Party. Perhaps one could argue that discriminating based on a person’s Nazi ideas isn’t the same as discriminating based on political affiliation, but I doubt that this would much impress a court that concluded (as the New Mexico court did) that discriminating in favor of legally recognized weddings (which under New Mexico law must be opposite-sex weddings) constitutes sexual orientation discrimination. Virgin Islands law does the same, as does an Urbana-Champaign ordinance.

A Seattle ordinance expressly bars discrimination in public accommodations based on “political ideology.” A Madison ordinance expressly bars discrimination based on “political beliefs.” Other cities have similar bans.

The California public accommodation discrimination ban doesn’t expressly bar political affiliation discrimination, but it has been interpreted quite broadly, and has apparently led to an ACLU lawsuit against a restaurant that excluded a patron for wearing a swastika.

So bans on political affiliation discrimination in public accommodations aren’t common — but they certainly exist, and it’s impossible to dismiss hypotheticals based on them as “absurd.” And if the First Amendment is read as not protecting Elane Photography, it probably wouldn’t protect the speechwriter or press release writer who refuses to write for Nazis or Nazi events, either.

In the most recent discussion of Elane Photography v. Willock, a commenter asked: “Imagine if instead of a gay couple it was an interracial couple. Would you still support Huguenin’s refusal to photograph the wedding? Or what if the couple were parapalegics and she had an ‘aesthetic aversion’ to photographing the disabled?” The question (at least as to race discrimination) comes up routinely in such cases.

The answer is “of course.” It seems to me that freelancers who create expression — whether speeches, press releases, Web sites, photographs, paintings, musical compositions, or what have you — should be entitled to choose what they create, regardless of whether we find the basis for their decisions praiseworthy or contemptible. If a musician who is a member of the Nation of Islam member decides that he wants to only perform at black weddings, or non-Jewish weddings, or non-interracial weddings, he should be entirely free to do so. Likewise if an Orthodox Jewish composer decided he didn’t want to compose music commissioned for a wedding between a Jew and a non-Jew. (This may well constitute ethnicity discrimination, which the law generally treats much like race discrimination, if the composer is focusing not on the non-Jewish partner’s religious beliefs but on the non-Jewish partner’s being of non-Jewish descent.)

And of course the same would be true if a portrait painter concluded that he didn’t want to make art depicting certain kinds of disabilities (whether because he thought he wouldn’t be very good at that, or because it isn’t likely to be as aesthetically pleasing as he wants his art to be, or what have you). And it would be true for the other examples I gave, in which people chose what to write, photograph, or compose for based on the parties’ religion, political affiliation, source of income, marital status (imagine a Catholic who doesn’t want to write a press release for a celebrity wedding in which one party is divorced) or who knows what else.

The desire to prevent race or disability discrimination should no more dissolve your right to be free from being compelled to speak (here, to create an artistic work) than it should dissolve the right to express bigoted views, to choose members of a racist political organization, or to select ministers (or church members) based on any criteria a church pleases. And if that means that writers and photographers can’t be legally barred from choosing their subjects based on race, that’s just an implication of the basic First Amendment principle of the speaker’s right to choose what to say.

New Mexico is one of about two dozen states in which religious objectors are presumptively entitled to religious exemptions from generally applicable laws. (About a dozen states, plus the federal government, provide this protection by statute; the other dozen states provide it as an interpretation of the state constitution’s religious freedom provisions.) Here’s the relevant statute, the New Mexico Religious Freedom Restoration Act:

A government agency [= the state or any of its political subdivisions, institutions, departments, agencies, commissions, committees, boards, councils, bureaus or authorities] shall not restrict a person’s free exercise of religion [= an act or a refusal to act that is substantially motivated by religious belief] unless:

A. the restriction is in the form of a rule of general applicability and does not directly discriminate against religion or among religions; and

B. 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.

Here’s how the court in Elane Photography v. Willock explains why Elane Photography shouldn’t get a religious exemption under this law from the ban on sexual orientation discrimination in public accommodation:

1. Elane Photography is not a “person,” because it’s a “limited liability company” (here, a husband-and-wife company for which Elaine Huguenin is the head photographer).

2. In any event, the law doesn’t apply to a private lawsuit between two parties.

3. The law “is the least restrictive means to further the government’s interest in eliminating discrimination against certain groups,” because “[t]here is no doubt that the State of New Mexico has a compelling interest in reducing, if not eradicating, acts of discrimination.” “[A]ssuring women [or any disadvantaged group] equal access to … goods, privileges, and advantages clearly furthers compelling state interests.”

But this strikes me as quite mistaken. First, “persons” generally includes corporations, and whatever you might say about that when it comes to large, impersonal entities, surely that makes sense here. Requiring a small, closely-held company to do something burdens the rights of its owners, especially when the owners are the primary employees who would have to perform the required acts. I take it, for instance, that if a law requires certain businesses to be open Saturdays, and a Jewish objector seeks an exemption (assuming there’s a religious exemption statute in the jurisdiction), it shouldn’t matter whether his small store is a sole proprietorship, a partnership, or a limited liability company. Plus, for whatever it’s worth, the federal RFRA has been applied to protect the rights of churches, which are corporations; if such corporates are “person[s],” why wouldn’t small husband-and-wife limited liability companies be as well?

4. The federal circuits currently disagree on whether the federal RFRA is applicable to civil lawsuits between private parties that are based on federal statutes. But the New Mexico court is mistaken in saying that it “has … been established that a federal statute similar to the NMRFRA cannot be raised in suits between private parties where the government is not also a party”; in fact, there is a disagreement between the Second and Seventh Circuits on the matter. Moreover, the statutory text seems to me to cover courts making decisions in civil statutory lawsuits between private parties. A court order imposing damages on someone for a “refusal to act that is substantially motivated by religious belief” involves “the state” acting. Nor does the often-cited textual argument to the contrary — that the remedial provision authorizes “relief against a government agency” — persuade me. One form of appropriate relief against a government agency (here, a state court or the state Human Relates Commission) is simply reversal on appeal of a decision that burdens religious practice.

5. Finally, I discuss the compelling interest argument more here, but here’s the short version: How can New Mexico argue that it has such a compelling interest in preventing discrimination based on sexual orientation, when it comes to same-sex weddings, when it itself refuses to recognize same-sex weddings? New Mexico doesn’t give same-sex couples a large range of important governmental benefits that it gives opposite-sex couples. Yet when Elaine Huguenin decides to refuse to provide same-sex couples a service that is

• much less valuable than the benefits that New Mexico refuses to provide,
• likely available from many other photographers (something that can’t be said for most government-provided legal benefits), and
• probably available at a higher quality from many other photographers, since I assume that a photographer who sees a same-sex wedding as a beautiful and holy event will probably do a better job of capturing its beauty than one who sees a same-sex wedding as a sin

then New Mexico says that there’s a compelling government interest in preventing sexual orientation discrimination, and the only way of adequately serving that interest is requiring all wedding photographers to photograph same-sex weddings on par with opposite-sex weddings, regardless of their religious beliefs. That doesn’t strike me as particularly plausible.

Elane Photography’s lawyers report that they will appeal, to the New Mexico Court of Appeals.

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 that Plaintiff cannot refuse to photograph same-sex couples during a commitment ceremony is not an infringement of Plaintiff’s right to freedom of expression.

1. The first thing we should note is the breadth of the court’s reasoning: It applies not just to photographers, but also to the musicians, composers, graphic designers, film editors, and other creators that the court mentioned earlier in the opinion. It would also apply to freelancers who write press releases, advertising copy, and so on. And I take it that it would also apply to bookstores, movie theaters, and other such distributors of others’ works; the authors and filmmakers aren’t “clients” of such distributors, but still the distributors’ “final message is not [their] own,” and they are “really a conduit” for others’ work.

I’ve heard some people argue that wedding photography (as opposed to artistic expression) isn’t really expression, because it’s too banal and straightforward. I doubt that this is so, but in any event it’s clear that the court’s reasoning applies without regard to the supposed banality of the expressive work.

2. But is the court’s reasoning, broad as it is, correct? Is it permissible for the law to require freelance writers, composers, artists, editors, and the like to create speech that they don’t want to create? Might it even be permissible for the law to require other conduits, such as bookstores and movie theaters, to distribute speech that they don’t want to distribute? (I use “speech” here in the standard First Amendment sense, which includes music, pictures, video, and the like.)

I don’t think so. After all, despite the court’s attempt to distinguish Wooley v. Maynard — the license plate motto case — a license plate motto isn’t the driver’s own (and certainly wasn’t seen that way before the Court recognized a driver’s right to obscure motto). The drivers in Wooley were simply conveying the government’s message; they were a conduit for the government. Yet the Court held that “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind,’” and that the Maynards had a right “to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.”

Now it’s true that here the government isn’t specifically requiring people to carry a particular string of words; and while a same-sex wedding may represent “an idea” (actually, many ideas), photographs of the wedding don’t convey the idea quite as specifically as the “Live Free or Die” on the license plate did. Nonetheless, Huguenin is being compelled not just to foster but to create a particular sort of expression — expression celebrating a same-sex union — that she finds morally objectionable.

Nor does it matter, I think, that Huguenin is in business. The Court has long held that speech retains full protection even when it’s sold for money. (Fully protected speech products such as newspapers, books, and the like are routinely sold for money.) The freedom from compelled speech applies to such sold-for-money media as well as to other media. The right not to create speech that you disapprove of should likewise extend to the right not to create such speech for money as well as the right not to create such speech for free. I take it, for instance, that the Maynards’ right not to display the “Live Free or Die” motto would apply even if the Maynards used their car to deliver pizzas or drive to commercial photography assignments. The same should extend to the right not to create works you disapprove of.

Wooley did involve the display of speech, while this case involves the creation of speech. But that should cut in favor of Elane Photography, rather than against: It seems to me that having to create speech, using your own creative abilities and judgments as an artist, musician, writer, or what have you, is an even deeper “foster[ing]” of “an idea [you might] find morally objectionable” — an even deeper intrusion on “individual freedom of mind” — than is simply having to displaying what is clearly the government’s message on a government-provided license plate.

3. Finally, for those who disagree, let me ask (as I did in my posts on the Human Rights Commission decision): Say you’re a freelance writer, who holds himself out as a business offering to perform a service. Someone tries to hire you to write materials — press releases, Web site text, and the like — for a same-sex marriage planning company, a Scientology book distribution company, a state branch of the Socialist party, a company that gets its income through legal prostitution, or whatever else. (Note that some jurisdictions ban discriminate based on “political affiliation” and “source of income” as well as religion, sexual orientation, and the like.)

May the government force you, on pain of damages liability, to write those materials, even if you would prefer not to because of the sexual orientation, religion, political affiliation, or whatever else to which the materials would be related? That’s what the trial court decision seems to hold. Or do you have a First Amendment right to choose which words you write and which you decline to write?

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 painting and sculpture, as well as photography. Certainly many of the works protected by the First Amendment (books, newspapers, movies, and the like) were created for money and distributed for money.

Yet the New Mexico government is now telling Huguenin that she must create art works that she does not choose to create. There’s no First Amendment case squarely on point, but this does seem pretty close to the cases in which the Court held that the government may not compel people to express views that they do not endorse (the flag salute case, West Va. Bd. of Ed. v. Barnette, and the license plate slogan case, Wooley v. Maynard).

For whatever it’s worth, Huguenin also says she exercises political judgment in deciding what to photograph (for instance, she reports that she refuses to make photographs that put horror films in a positive light, or to take photographs that positively portray abortion, pornography, or nudity, as well as same-sex marriage). I don’t think that sort of political selectivity should be required for photographers to be protected as artists, but it seems to me to highlight the scope of the artist’s judgment, and the artist’s constitutional right to exercise such judgment (just as a bookstore has the right to choose which books to stock).

Consider also a hypothetical analogy: Say that instead of Willock’s trying to hire a photographer, Willock was trying to hire a solo freelance writer (or a writer in a two-person freelancing partnership) to write materials for Willock’s (hypothetical) same-sex marriage planning company. The writer refused on the grounds that she didn’t want to promote such a company.

I take it the law would cover the writer as much as it would cover the photographer (why wouldn’t it?). Yet wouldn’t requiring writers — even writers of press releases and Web sites — to write words that express views they reject violate the First Amendment? And if not, what’s the difference between that and requiring photographers to take photographs that implicitly but strongly express views they reject? (Wedding photographs, of course, express views celebrating the event being photographed.) …

[2. Religious Exemptions:] [And] the decision may also violate the photographer’s religious freedom rights under the New Mexico Religious Freedom Restoration Act.

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