Compelled-wedding-photography case reaches New Mexico Supreme Court

by Walter Olson on November 27, 2012

Eugene Volokh:

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 [to create] works that they don’t want to create.

As Ilya Shapiro explains further at Cato, the litigation before the New Mexico Supreme Court hinges in substantial part on whether the photographers are entitled to claim religious-liberty protection against the discrimination claim, but the Cato amicus brief advances a distinct alternative theory under which they deserve to prevail:

Our brief explains that photography is an art form protected by the First Amendment because clients seek out the photographer’s method of staging, posing, lighting, and editing. Photography is thus a form of expression subject to the First Amendment’s protection, unlike many other wedding-related businesses (e.g., caterers, hotels, limousine drivers).

The amicus brief in Elane Photography v. Willock is here; I’m happy to say I played a bit part in helping to advance it. Earlier on the case here, here, and here; and more from George Will.

{ 8 comments }

1 William Nuesslein 11.27.12 at 11:32 am

Wedding pictures are art but lap dances aren’t. That’s what makes law interesting. I see wedding pictures more a commodity like loaves of bread. Bakers can not discriminate against anybody willing to pay for their products.

Same sex marriage seems needless to me, but those who do marry, like Barney Frank, seem so happy that it would be crual to rain on their parade.

2 Robert 11.27.12 at 12:24 pm

As a person who’s same-sex married, I also think that certain creative, personal professions like photographers should have a right to decline any client for any reason.

It’s a subtle distinction. I wouldn’t support a barber, for example, who refused to cut black people’s hair. Or a company that had a catering hall that refused to rent to same-sex couples.

There’s something a little different here, but I’m not sure I buy the “religious discrimination” argument.

3 Noncenx 11.27.12 at 1:31 pm

We’re not talking about renting a hall but asking someone to do the “perfect” wedding photos. You can’t force someone’s heart to be in in, only to go through the motions. While I can understand someone being upset, I would also by thankful the photographer were honest enough to let me know I would probably want someone else who would do their best.

Otherwise this will be a Judy Judy episode about how their once in a lifetime day was ruined.

4 mer 11.27.12 at 1:45 pm

Why can’t bakers discriminate against anyone who can meet their price? Or are private businesses not allowed to set their own rules? Granted it would be a stupid business decision (or the perfect opportunity for a competitor).

Robert: why should only “…certain creative, personal professions like photographers should have a right to decline any client for any reason.” thave that ability, why should every business not have that ability? Your example of the barber: exactly what I’m saying. It would be a stupid thing on the barber’s part because potential customers go elsewhere; perhaps to the competitor who advertises “We cut hair for people Leo won’t”.

5 DEM 11.27.12 at 2:59 pm

Stories like this are further evidence that, while gay rights advocates often like to cloak themselves in libertarian garb, far too many are authoritarians at heart. The lesbian couple at issue here suffered from no shortage of available photographers, yet simply could not abide a private citizen having any objection to their personal choices, and was all too anxious to enlist the power of the state to coerce a photographer into action against her will. And to what end? As Noncenx notes, it is entirely counter-productive to force an unwilling photgrapher to photograph one’s wedding.

6 Dana Thompson 11.27.12 at 7:57 pm

William F. Buckley declared that “the inability to withhold one’s services is the defining characteristic of slavery,” and that’s a concept that most people should be able to agree on. Consider the dentist in (I think) New York City who was punished under public accommodation law for refusing to accept AIDS sufferers as patients. That was the first case I’d read about where not a facility or business was described as a public accommodation, but the actual person providing services. To me it seems perverse and wrongheaded to justify the photographer on first amendment grounds and thereby abandon the more universal argument that the dentist could have presented. Are the lawyers who frequent this blogsite content to view themselves as “public accommodations” whose supposed right to pick and choose their own clients is actually a privilege extended by the suffrance of the government?

7 Robert 11.28.12 at 12:42 pm

The dentist example is an interesting one. In fact it was my brother who argued that case for the NY State Division of Human Rights.

http://www.law.cornell.edu/nyctap/I96_0183.htm

I will have to think this through more carefully.

8 David Schwartz 11.29.12 at 1:30 am

DEM: It is not at all inconsistent to argue that there should not be laws prohibiting private discrimination but that if there are such laws, they should treat racial discrimination the same as sexual orientation discrimination.

“As Noncenx notes, it is entirely counter-productive to force an unwilling photgrapher to photograph one’s wedding.”

Is it unproductive for a black person to try to force an unwilling lunch counter owner to serve him?

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