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The ‘Human Rights’ Juggernaut

Does the First Amendment protect wedding ­photographers?

Sep 9, 2013, Vol. 19, No. 01 • By MARK HEMINGWAY
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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. 

‘Wedding Party at the Photographer’s Studio’  by Pascal Adolphe Jean Dagnan-Bouv

‘Wedding Party at the Photographer’s Studio’ by Pascal Adolphe Jean Dagnan-Bouveret

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. 

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