The New Mexico Human Rights Commission has just issued its opinion concluding that Elane Photography violated New Mexico law by refusing to photograph a same-sex commitment ceremony; and the opinion clarifies a little about the Commission’s rationale. (Recall that the order was originally released last week, but the opinion was apparently just delivered to the parties yesterday.)
For instance, the Commission’s rationale isn’t limited to wedding photographers, who some people argued (wrongly, in my view) aren’t really “creative” enough to get First Amendment protection. Rather, it would apply to freelance writers who refuse to write press releases or Web copy for religions they disapprove of. It would apply to professional singers who routinely hire out for a wide range of events (weddings, bar mitzvahs, and so on) but who don’t want to sing at events affiliated with some religion, or for that matter at same-sex commitment ceremonies. It would apply to professional portrait painters who accept a broad range of commissions but prefer, whether for artistic or political reasons, to paint only men or only women, or not to paint people of whose religious activities or sexual orientations they disapprove.
After all, here’s the entirety of the Commission’s discussion of the First Amendment issue:
The United States Supreme Court has considered the provisions of state antidiscrimination laws similar to the provisions of NMHRA and concluded that: “Provisions like these are well within the States usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338, 2346 (1995). The Court has explained that “acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent.” Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 3255 (1984).
That’s a judgment that the First Amendment just categorically doesn’t apply to these sorts of antidiscrimination provisions, not a judgment specific to wedding photographers.
Of course, the Commission’s rationale also seems legally wrong. It’s true that Hurley said that antidiscrimination provisions do not as a general matter violate the First Amendment — but then it went on to hold that such a provision did violate the First Amendment when applied to a parade’s exclusion of a float that was identified as connected to a gay/lesbian/bisexual group. Likewise, Boy Scouts of America v. Dale later held (distinguishing Roberts) that such a provision did violate the First Amendment when applied to the Boy Scouts’ exclusion of a gay scoutmaster.
So the Court has made clear that the First Amendment may indeed trump antidiscrimination law when applying the antidiscrimination law would interfere with a group’s speech or its expressive association. Elaine Huguenin argued applying the antidiscrimination law here would interfere with her freedom from compelled speech. Yet the Commission simply quoted the general statements from Hurley and Roberts without explaining why the well-recognized First Amendment exceptions to those general statements don’t apply to Huguenin’s claim.
Pretty poor opinion-writing, it seems to me. But in any event, it shows (as I argued above) that the Commission seems to see rights to be free of compelled speech as being irrelevant to its application of public accommodation discrimination law — which is why I say that the Commission’s reasoning would apply equally to the freelance writers, singers, painters, and more.