Tag Archives | Elane Photography v. Willock

Amicus Brief in Elane Photography v. Willock (the New Mexico Wedding Photography Case)

I’m pleased to report that I filed a friend-of-the-court brief, on behalf of the Cato Institute, Dale Carpenter, and myself, arguing that wedding photographers (and other speakers) have a First Amendment right to choose what expression they create, including by choosing not to photograph same-sex commitment ceremonies. All the signers of the brief support same-sex marriage rights; our objection is not to same-sex marriages, but to compelling photographers and other speakers works that they don’t want to create.

You can see a PDF copy of the brief at the Cato site, and also Cato’s blog post on the subject. I’ve also included the text of the brief below:
[Table of Contents:]
I. Introduction: This Case Is Largely Controlled by Wooley v. Maynard, 430 U.S. 705 (1977)
II. Under the First Amendment, Speech Compulsions Are Generally Treated the Same as Speech Restrictions
III. Wooley Extends to Photography, Including Photography Created for Money
IV. Wooley Extends to Compelled Creation of Speech as Well as Compelled Distribution of Speech
V. The Court of Appeals’ Analysis Is Inconsistent with Wooley
VI. First Amendment Protection Against Compelled Speech Extends Only to Refusals to Create First-Amendment-Protected Expression

I. Introduction: This Case Is Largely Controlled by Wooley v. Maynard, 430 U.S. 705 (1977)

This case is largely controlled by a United States Supreme Court precedent that the court of appeals never mentioned: Wooley v. Maynard, 430 U.S. 705 (1977). Wooley, the New Hampshire license plate case that we discuss in detail below, makes clear that speech compulsions are generally as unconstitutional as speech restrictions. Wooley’s logic applies to photographs and other displays, and not just verbal expression. And that logic applies also to compulsions to create photographs and other works (including when the creation is done for money), not [...]

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Your Name In Lights

Or in soybean-based ink.  George Will’s column today discusses the Elane Photography case that Eugene has been blogging (and participating in as amicus curiae). The case involves a First Amendment Free Exercise Clause/New Mexico Religious Freedom Restoration Act defense to penalties the New Mexico Human Rights Commission assessed against Christian photographers who refused for religious reasons to photograph a same-sex commitment ceremony. Will writes:

Eugene Volokh of the UCLA School of Law thinks that [photographer Elaine] Huguenin can also make a “compelled speech argument”: She cannot be coerced into creating expressive works, such as photographs, that express something she is uncomfortable expressing. Courts have repeatedly held that freedom of speech and the freedom not to speak are “complementary components of the broader concept of ‘individual freedom of mind.’ ”

Now here’s my favorite part, for purely selfish reasons. Will continues “New Mexico’s Supreme Court is going to sort all this out, which has been thoroughly reported and discused on the invaluable blog the Volokh Conspiracy . . . .” [...]

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Seeking New Mexico Local Counsel for a Pro Bono Amicus Brief Before the New Mexico Supreme Court

I’m planning on filing a pro bono amicus brief before the New Mexico Supreme Court, in support of Elane Photography in the Elane Photography v. Willock wedding photographer case. If you are licensed to practice in New Mexico, and might be inclined to help by acting as local counsel, please e-mail me at volokh at law.ucla.edu. Thanks!

UPDATE: Many thanks to the people who responded, and in particular to Michael J. Thomas, who responded first and with whom I look forward to working. [...]

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New Mexico Supreme Court Will Hear the Elane Photography Case

I’m pleased to say that the New Mexico Supreme Court will hear the Willock v. Elane Photography case, which I’ve blogged about extensively. The court will now decide whether

(1) holding a wedding photographer liable for refusing to photograph a same-sex commitment ceremony violates New Mexico’s statutory ban on sexual orientation discrimination, and

(2) even if it does violate the statute, whether the photographer is nonetheless immune from punishment because

(a) requiring her to create photographs that she doesn’t want to create is a speech compulsion, in violation of the Free Speech Clause,

(b) she is entitled to an exemption under the federal or state Free Exercise Clauses, and

(c) she is entitled to an exemption under New Mexico’s Religious Freedom Restoration Act.

For more on all these theories, see this thread. [...]

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Do Religious Freedom Restoration Acts Apply When Courts Enforce Civil Causes of Action?

I blogged earlier today about the New Mexico Court of Appeals decision in Willock v. Elane Photography, which held that a wedding photographer could be held liable for refusing to photograph a same-sex commitment ceremony. I argued that the decision violated the photographer’s First Amendment rights not to create expressive works (such as photographs) that she doesn’t want to create.

But the photographer (Elane Huguenin) also argued that, even setting aside the compelled speech argument, she was entitled to a religious exemption from the state ban on sexual orientation discrimination in places of public accommodation. First, she argued that this was so under the federal Free Exercise Clause and the New Mexico Constitution’s similar provision, but the court responded that those provisions do not generally require religious exemptions. I think that’s a correct conclusion under the Free Exercise Clause, given the Employment Division v. Smith precedent, and a plausible one under the New Mexico Constitution.

But New Mexico also has a Religious Freedom Restoration Act, which provides, in relevant part,

[§ 28-22-1.] Sections 1 through 5 of this act may be cited as the “New Mexico Religious Freedom Restoration Act”.

[§ 28-22-2.] … A. “free exercise of religion” means an act or a refusal to act that is substantially motivated by religious belief; and
B. “government agency” means the state or any of its political subdivisions, institutions, departments, agencies, commissions, committees, boards, councils, bureaus or authorities….

[§ 28-22-3.] A government agency shall not restrict a person’s free exercise of religion 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

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Wedding Photographer May Be Required (on Pain of Legal Liability) to Photograph Same-Sex Commitment Ceremonies

So the New Mexico Court of Appeals held last week in the long-pending Elane Photography v. Willock (N.M. Ct. App. May 31, 2012). The court began by holding that the state law that bans sexual orientation discrimination in places of public accommodation applies to professional wedding photographers’ decisions not to photograph same-sex commitment ceremonies: Such photography businesses are “places of public accommodation” under the language of the law, and the discrimination between legally recognized opposite-sex marriages (New Mexico only recognizes such marriages) and same-sex commitment ceremonies constitutes discrimination based on sexual orientation.

The court then rejected the argument of the photographer (Elane Huguenin, the co-owner and principal photographer for Elane Photography) that penalizing her for not photographing such same-sex ceremonies was an unconstitutional “speech compulsion.” The First Amendment, Huguenin argued, has been repeatedly held to protect the right to speak as well as the right not to speak; and the right not to speak includes the right not to create artistic expression that one doesn’t want to create. And just as the First Amendment protects speech that is said for money (indeed, most books, newspapers, movies, and the like are created and distributed commercially), so it protects the right not to create certain artistic works for money, even if one is in that line of business. But the court disagreed (some paragraph breaks added):

[W]e are unpersuaded by Elane Photography’s argument that a photographer serves as more than a mere conduit for another’s expression. See Turner Broad. Sys., Inc., v. F.C.C., 512 U.S. 622, 629 (1994) (explaining that a cable operator serves as a conduit for speech and is not a speaker itself). While Elane Photography does exercise some degree of control over the photographs it is hired to take, in that “it decides which pictures to take,

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Discrimination Against Nazis in Public Accommodations

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 [...]

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The First Amendment and the Race Discrimination Bogeyman

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, [...]

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Religious Accommodation Statutes and a Right Not To Participate in Same-Sex Weddings

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 [...]

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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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