Compelled expression and the New Mexico photographer case

by Walter Olson on December 17, 2009

A New Mexico court has upheld state-levied fines against a photographer who refused a job taking pictures at a same-sex wedding (Elane Photography v. Willock). Eugene Volokh, who has written about the case previously, now has a series of posts on the implications of the court’s effort to force creators to “create speech that they don’t want to create.” He also adds posts on the religious accommodation angle, the inevitable what-about-racists objection, and the role of state laws prohibiting “discrimination” against customers based on their political beliefs. More: Timothy Kincaid, Box Turtle Bulletin (“time for New Mexico to change its law. …ultimately what kind of freedom will we have won to live our lives as we see best if it costs the freedom of others to do the same?”).

{ 17 comments }

1 reuven 12.17.09 at 10:29 am

These cases usually backfire, too. They’re often cited by opponents of same-sex marriage as reasons not to support anti-discrimination laws. (Makes me wonder if it’s all a setup!)

Discrimination or not, I would hate to see the day when a small businessman who contracts on a personal basis to individuals didn’t have the right to turn away clients. I do it all the time based on all sorts of reasons.

2 Jane 12.17.09 at 12:01 pm

Who would want to hire a photographer who disapproved of the marriage? Would you really trust him to take decent photos of your wedding.

3 David Schwartz 12.17.09 at 12:08 pm

Jane: Why would a black person want to eat at a Denny’s that doesn’t want to serve black people?

4 Jane 12.17.09 at 12:18 pm

The Waffle House has employees who hate white people. They told me I couldn’t get a take-out because they were out of take-out containers. Then I found out that they do all sorts of crap to the few white customers they get. Do I want to eat there? No. I figure they’ll spit in my food.

5 Jane 12.17.09 at 12:19 pm

I should say “The Waffle House near me”.

6 kimsch 12.17.09 at 12:28 pm

A couple of months before my wedding I went to a florist to order flowers. They refused. Their reason was that my wedding was scheduled for the day before Mothers’ day. I believe them and don’t think it was discrimination because I’m disabled.

You know what I did? I went to another florist. I also never went to the first florist again. I was having a small wedding with a small flower order and I was giving plenty of time for them to be able to handle the order, but they didn’t even ask what we needed. They said it was the date.

Oh well.

7 KB 12.17.09 at 12:37 pm

Ok, so they’re forced to photograph the wedding. But do they have to do their best job? What happens if they “forget” to take the lens cap off? A 1 hr video of the ceiling? “Whoopsie, my bad. Sorry about that.” Who’s to say if was a mistake or on purpose.

Does that become a lawsuit for Judge Judy for spoiling their special moment?

8 Jane 12.17.09 at 12:46 pm

My point exactly, KB.

9 E-Bell 12.17.09 at 1:09 pm

The big problem here is that the judge improperly found that the photographer was a “public accommodation” under the state’s civil rights law. Reading the opinion, in order to make such a finding, he cited the opinions of courts in other states (Mass., New York and Washington), holding that various types of businesses could be public accommodations.

The statute in question enumerates 5 different kinds of public accommodations – none of which could possibly include wedding photographers.

I can see the necessity for having anti-discrimination laws that affect hotels, common carriers, restaurants and the like because these businesses provide services that are essential to the public at large (to borrow a phrase from the photographer’s argument). But here, I think the rights of the photographer trump any public good served by making her take business that she does not want.

10 mojo 12.17.09 at 1:24 pm

If I don’t want to work for you, I don’t have to. And the court can fold it’s order until it’s all corners and insert the thing roughly in it’s oubliette.

11 Robert 12.17.09 at 1:40 pm

I would feel different if there were, say, a Hotel catering hall that advertises to the public and has posted, set rates.

12 John Burgess 12.17.09 at 2:03 pm

The real crunch is that wedding photography is–naysayers be damned–an expressive art. It may not be terribly deep, but it can be.

A photographer of this sort is creating expression, not just handing over a piece of fried chicken or a room key. Artists are generally free to express whatever they want, offensive (viz. ‘Piss Christ’), saccharine (viz. Kinkaid), or wonderful (viz. Michaelangelo). A government’s telling the artist what he is to express–compelled speech–is what the Politburo and National Socialist Artists Union were all about.

Here, I believe, the court erred by transgressing on a fundamental right guaranteed by the US Constitution. Upholding a fundamental right has to take priority over a statutory right.

13 Hans Bader 12.17.09 at 3:12 pm

The state’s interest in eradicating sexual orientation discrimination in the private sphere is not compelling enough to overcome the photographer’s freedom of religion and free speech rights, especially given that many other photographers would have been happy to provide the very service that the gay complainants demanded, without any coercion (even putting aside the fact that there was no violation of the state’s antidiscrimination statute, under a reasonable reading of the statute).

First, it cannot legally be treated as compelling for purposes of this case because the state of New Mexico, which bans gay marriage, itself discriminates based on sexual orientation in a number of contexts (not just in not treating civil-commitment ceremonies as being analogous to marriages, assuming arguendo that that is discrimination), so it is barred from arguing that eradicating discrimination based on sexual orientation is a compelling interest. That’s what the Supreme Court made clear in its Lukumi decision, where it held that a local government could not treat an important interest as compelling where it inconsistently failed to advance that interest, even when in contexts where doing so would have cost nothing in terms of First Amendment rights. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546–47 (1993) (“Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling”).

So holding Elane Photography liable can’t be justified under the strict scrutiny mandated by the First Amendment and the New Mexico Religious Freedom Restoration Act.

(Given its own ban on gay marriage, the State of New Mexico’s accusing Elane photography of discrimination is like the pot calling the kettle black).

Second, eradicating purely private sexual-orientation discrimination is simply not, legally-speaking, a compelling state interest outside the employment context. See Curran v. Mt. Diablo Council of Boy Scouts of America, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (boy scouts were protected by First Amendment freedom of expressive association against being forced by California public accommodation and gay-rights laws to include gay people as members and leaders, since being forced to do so did not serve a compelling state interest), aff’d, 952 P.2d 218 (Cal. 1998).

More importantly, there is an additional, alternative First Amendment defense that applies here, unrelated to freedom of religion: freedom from compelled speech. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).

Photography is inherently expressive, as the courts have noted in giving copyright to photos as a matter of course; most businesses (say, selling hot dogs) are not. Ruling in favor of the photographer is not only consistent with the statute (which forbids discrimination based on customers’ sexual orientation, not based on the ceremony they wish to capture on film), but even if that were not the case, ruling in favor of the photographer would not carve out a big exception to the statute’s reach or vitiate any important state interests.

Since the photography is expressive, the case should be governed by the U.S. Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), which held that a state’s gay-rights law and public-accommodation law could not be used to force an expressive activity (a parade, in that case) to embrace a message of support for gay causes, because doing that violated the First Amendment (even though the parade organizers merely wished to avoid talking about gay issues, and did not claim to harbor any anti-gay beliefs that would be abridged by the forced
inclusion of a gay pride contingent in the parade).

14 Hans Bader 12.17.09 at 3:15 pm

The Nex Mexico trial court’s claim that religious-freedom guarantees like NMRFRA don’t apply to suits between private parties is utterly irrelevant to this case (the Human Rights Commission went after the photographer, not just private parties) and obviously wrong.

The Supreme Court has often held that private parties can raise free speech or religious-freedom objections to lawsuits by private parties, see Hustler Magazine v. Falwell (1988) (private lawsuit for intentional infliction of emotional distress was barred by First Amendment), Boy Scouts v. Dale (private lawsuit for sexual orientation discrimination barred by First Amendment), and the same principle applies to state “human-rights” agencies, see Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995) (state agency could not fine employer for religious harassment based on offensive speech, since it was protected by state constitution’s religious-freedom guarantees).

So is the trial court’s claim that only natural “persons” can rely on religious freedom. Many Supreme Court cases involve religious freedom claims by religious groups, and appeals court decisions uphold the religious freedom claims of religious colleges and other corporations. Good News Club v. Milford Central School, 533 U.S. 98 (2001); Columbia Union College v. Oliver, 254 F.3d 496 (4th Cir. 2001)

The State of New Mexico’s position reaks of hypocrisy.

It is punishing a wedding photographer for refusing to photograph what is NOT a wedding, but a “commitment ceremony.” The State of New Mexico treats non-married “committed” couples as different from married couples for a host of purposes, belying any claim that they are legally analogous to marriages.

Yet, now the State of New Mexico, in the form of the Human Rights Commission, claims that the commitment ceremony IS akin to a wedding, and must be photographed as such — and any refusal counts as discrimination against gays.

Moreover, elsewhere, the State of New Mexico acts as if same-sex commitments are not analogous to straight ones, much less marriages, since the State itself bans gay marriage. Maybe the State should practice what it preaches and stop banning gay marriage.

15 Jeffrey 01.03.10 at 3:09 pm

The New Mexico ruling was quite right: New Mexico’s statute prohibits discrimination by businesses in the conduct of their business. If a restaurant refuses to serve black people, most of us would agree that that constitutes a violation of the statute. Refusing to serve gay people is the same thing, and hiding behind a religious text or belief, even if sincerely held, does not create an exception. A Christian photographer could theoretically refuse to serve anyone who has: had pre-marital sex, committed adultery, gotten a divorce, believes in other gods, is not a Christian, works on the Sabbath, eaten shellfish, dishonored his or her parents, etc. Commerce is a public realm. If you wish to participate in it, you should be prepared to honor the laws that regulate it.

16 Jeffrey 01.03.10 at 3:12 pm

Hans:

“The state’s interest in eradicating sexual orientation discrimination in the private sphere…”

Whoa, this is NOT the private sphere, it is the PUBLIC sphere. Commerce is public. That’s the whole point: the state most certainly can regulate public commerce for the general welfare of society.

17 Josh 01.04.10 at 5:48 pm

Jeffrey:

I think this use of the word “private” was intended to convey a “non-governmental” meaning – as in, this is not government action, but a private citizen’s action.

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