On August 22, the New Mexico supreme court unanimously ruled that a wedding photographer broke the law by refusing to photograph a same-sex commitment ceremony. While gay rights advocates are celebrating this latest in a string of legal and political victories, the outcome of Elane Photography v. Vanessa Willock has alarmed religious liberty advocates. And it could end up having a profound influence on First Amendment jurisprudence.
The New Mexico court ruling upheld a previous judgment of the New Mexico Human Rights Commission that Elane Photography would have to pay $6,637 in legal fees to Vanessa Willock, who brought the complaint against them for refusing to photograph her commitment ceremony in 2006. Elane Photography is owned by a husband and wife who are evangelical Christians and have a moral objection to using their vocation to support gay unions.
According to the New Mexico supreme court, that isn’t sufficient reason for a business owner to deny someone its services. “We conclude that a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the [New Mexico Human Rights Act] and must serve same-sex couples on the same basis that it serves opposite-sex couples,” reads the decision. The court further suggested that Elane Photography’s owners “retain their First Amendment rights to express their religious or political beliefs” even as they are compelled to photograph gay weddings because it is still within their rights to “post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.”
Critics of the decision challenge the court’s simplistic reasoning. The New Mexico supreme court has an awfully narrow view of what a wedding photographer does, in both legal and practical terms.
For one thing, it’s hard to argue that wedding photographers provide the same service to all customers, as is typical under public accommodation laws. “When you order public accommodation, you have to sell your hamburgers to everybody, you have to rent your hotel rooms to everybody. That’s just a uniform product being sold to everyone without discrimination,” Jordan Lorence, a lawyer for the Alliance Defending Freedom, the Christian legal group representing Elane Photography, told The Weekly Standard. “There are some commercial professions—like a videographer, a speechwriter, a website designer—where there’s no standard product. The product is inherently expressive. Then when you add to that a ceremony that’s expressing ideas, going to a wedding photographer and saying I want you to use your photojournalistic skills to tell the story of my event in the best way possible, you have this huge freedom of speech issue.”
Wedding photographers certainly don’t see what they do as providing a standardized, mundane product to every customer. They commonly interview clients to ascertain what qualities the couple want their unique wedding pictures to capture. And wedding photographers almost always retain the copyright to their work, making their product intellectual property in the eyes of the law. In this respect, there’s a strong legal argument that wedding photographers are closer to artists than simple service providers.
Lorence’s use of the term “photojournalist” is also telling. Professional photojournalists sometimes moonlight as wedding photographers. It seems odd that First Amendment protections would apply to a person being paid to document events in some circumstances and not in others. “I think the New Mexico supreme court totally blew it, because they keep talking about photographers like they’re segregated lunch counters dispensing hamburgers,” said Lorence.
As for the notion that business owners are free to express their opinions about same-sex marriage even as they are forced to accommodate it, this supposed compromise seems likely to trip up business owners—as the Catholic proprietors of the Wildflower Inn in Lyndonville, Vermont, found out.
In 2005, the owners of the inn told a same-sex couple that the establishment would host their civil union ceremony in compliance with Vermont’s Fair Housing and Public Accommodations Act, but that they personally believed marriage to be limited to the union of a man and a woman. The owners of the bed and breakfast were subsequently investigated by the Vermont Human Rights Commission, which concluded they had acted lawfully, and they continued to respond to requests to host same-sex ceremonies in the same fashion.
Then last year, the Wildflower Inn’s wedding coordinator flatly turned down a request to host a wedding reception for a same-sex couple. The employee further encouraged the person making the request to call her at home so she could make arrangements for the same-sex couple through her own private wedding planning service. The employee later admitted she had lied to the same-sex couple when she told them she had discussed their request with the owners and that she alone was responsible for refusing their request. Because of this (now former) employee’s misconduct, the Wildflower Inn ended up reaching a settlement with the state Human Rights Commission under which the inn paid a civil penalty of $10,000 directly to the commission and $20,000 to a charitable trust controlled by the same-sex couple who had been denied services.
Had the owners of the Wildflower Inn never publicly asserted their religious beliefs to begin with, it seems unlikely the state would have forced them into such a hefty settlement, given that their rogue employee admits the owners had no role in failing to accommodate the couple. In the end, “small businesses like ours cannot match the limitless resources of the government,” said Wildflower owner Jim O’Reilly in a statement.
Increasingly, state governments are using their considerable resources to go after business owners who don’t approve of gay marriage. Earlier this year, after a florist in Richland, Washington, refused to provide flowers for the wedding of a gay customer, the small-business owner was sued by no less than the state attorney general for allegedly violating the state’s consumer protection laws. And on August 14, it was announced that a bakery in Gresham, Oregon, is being investigated by the state Bureau of Labor and Industries civil rights division for declining to provide a wedding cake for a same-sex commitment ceremony.
While there’s certainly an argument to be made that bakers and florists are expressive and artistic professionals, the First Amendment case is less obvious than it is with wedding photographers. “There are some businesses that I think do not have an expressive component—the only religious argument they can make is under a state religious freedom restoration act or the federal or state free exercise clause,” noted Lorence. “The cake thing is an intriguing argument. It depends on how they’re using the cake. If they call up and say, ‘We want to feed cake to our people,’ there’s nothing expressive there, just as if you called up a barbecue place and said we want pulled pork sandwiches. . . . But there’s a point in the reception where the married couple cut the cake and shove cake in their mouths. Then they’re using cake not to feed people, but for its symbolic communication that these two people are legally married.”
By contrast, there’s little evidence that those enforcing discrimination and public accommodation laws are making even basic distinctions between free speech and free exercise of religion, which are protected, and basic services available to all under public accommodation laws. The Christian owner of Hands On Originals, a printer in Lexington, Kentucky, declined to produce T-shirts for a gay rights event last fall because he explicitly disagreed with the message he was asked to print. Lexington-Fayette Urban County Human Rights Commission is investigating him, even though he has gay employees and regularly serves gay customers. “We’ll work with anybody,” said Blaine Adamson, the owner of the press. “But if there’s a specific message that conflicts with my convictions, then I can’t promote that.”
State governments also have a lot of tools at their disposal to fine and otherwise make life difficult for businesses, and they’re not shy about using them. In response to the investigation of the bakery in Gresham, Oregon, labor commissioner Brad Avakian told the Oregonian, “The goal is never to shut down a business. The goal is to rehabilitate.” While Avakian was trying to be reassuring, the idea that the state would “rehabilitate” business owners with illegal opinions sounds more than a little ominous.
For now, state governments continue to get away with pushing the envelope on public accommodation despite the First Amendment questions. That’s largely because of a little-noted 1986 Supreme Court decision, Ohio Civil Rights Commission v. Dayton Christian Schools, Inc. The court ruled that a legal doctrine known as the “Younger abstention” applied to state human rights complaints. Essentially, federal courts won’t interfere to remedy questions involving constitutional rights as long as there’s an ongoing state proceeding that addresses the question.
Now, however, after seven years of wending its way through New Mexico’s legal system—seven years marked by a great deal of aggressive legal campaigning across the country in support of gay marriage—the recent New Mexico supreme court ruling means that Elane Photography has exhausted its appeals at the state level. The New Mexico decision can now be appealed directly to the Supreme Court.
It’s an excellent opportunity for America’s highest court to ensure that the First Amendment’s free speech and free exercise clauses remain meaningful. If the Court declines to hear the case or arrives at a ruling that echoes New Mexico’s decision, then state and local governments—and their unaccountable human rights commissions, where full legal protections for the accused do not apply—will suddenly become powerful arbiters of which classes of Americans enjoy constitutional protection and which do not.
Mark Hemingway is a senior writer at The Weekly Standard.