Wedding photographer loses New Mexico discrimination case

by Walter Olson on August 23, 2013

In Elane Photography LLC v. Vanessa Willock, the New Mexico Supreme Court has unanimously ruled that a wedding photographer is obliged under the state’s anti-discrimination law to offer its services to two women seeking to record their commitment ceremony, despite its proprietors’ religious objections to the ceremony. The Court was not persuaded by an amicus brief filed by UCLA lawprof Eugene Volokh on behalf of the Cato Institute arguing that the First Amendment protects persons in expressive occupations such as photography from being obliged to create expressive works they don’t want to create. Commentary: Dale Carpenter, Ken at Popehat, Hans Bader, John Fund, Ilya Shapiro/Cato at Liberty, Stephen Richer.

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1 A A Gruntpuddock 08.24.13 at 1:32 am

Do a passable job, enough to disappoint but not enough to get sued.

Have equipment failures on the day.

Charge as much as possible, including HIV insurance.

Or just book yourself into hospital on the day with a suspected heart attack.

See if the next lot want you to do your wedding.

2 VMS 08.24.13 at 10:07 am

Would you want to have a photographer that is forced by a court to take your “wedding” pictures for you? Something tells me that if forced to do the job, the photographs will be less than picture-perfect.

3 Mannie 08.24.13 at 12:42 pm

Both comments above reflect my thoughts, and things I have said elsewhere. This is not about wanting a specific artist. This is about some damned activists wanting to throw their weight around.

I am disturbed by the courts trying to compel art. That is forced speech. It’s not like someone slapping tires on your car, or serving you soup.

4 Walter Olson 08.24.13 at 12:44 pm

AAG>It is hard to imagine what you could possibly mean by “HIV insurance” in this context, or how a request for such a thing would not come off as a great deal more offensive than a simple “I’d rather turn down this wedding assignment, thanks.”

Whatever hazards might be covered by your fanciful “HIV insurance” — viral transmission through photons reaching a camera lens? — it would probably be something that an insurer could underwrite at an exceedingly low rate for the two women entering this joyous ceremony.

5 Bumper 08.24.13 at 2:52 pm

There are always two sides, over the years I have turned down many clients simply because I didn’t want to work with them. No excuses, just, “I don’t think we’d be a good fit.” Simple, no debate, we’re through here. Never had any blowback either.

On the other had the photographers must have brought up the religious/gay aspect or the couple would have never known.

So while I agree that no one should be required to work for anyone they don’t want to, they also should have had enough sense to show a little discretion and just STFU. If you go looking for trouble, it will find you.

6 gitarcarver 08.24.13 at 3:19 pm

There is an interesting part of the decision that basically says people can turn down work if they disagree with a person’s actions as long as that person is not in a “protected class” as established by the NMHRA. This means that in the name of equality and tolerance, the court said some people are more equal than others.

Secondly, the notion that a law can trample a person’s rights doesn’t seem correct.

Lastly, when two “rights” collide, the resolution should be the path of least resistance or the least intrusive.

In this case, the couple was prospecting for photographers. They were not referred to the photographer or sought their services because of the reputation of the photographer. There are over 100 photographers in the area. Contrast that with the idea that the photographer would be compelled to support an idea with which they disagree on religious objections, plus be forced to create an “expression” at the point of the government sword.

The path of least resistance and least intrusion is to visit another photographer.

This is a case that has a lot of slippery slope arguments no matter which way it was decided.

7 Canvasback 08.24.13 at 10:07 pm

The media is a protected class – we can’t discriminate based on content. But I dare you to try to get my ex ( a graphic designer) to do any work for Fox News; or that other outfit that makes a big deal out of the 2nd Amendment.

8 Sparky 08.24.13 at 11:58 pm

I exercised my artistic judgment to shoot the wedding on nitrate film and unfortunately it combusted under the enlarger lamp.

9 mojo 08.26.13 at 5:41 pm

Chop off all the heads.

No, not literally. Photographically.

10 DensityDuck 08.27.13 at 3:31 pm

The couple did not actually want the photographers to provide services. What they *wanted* was a big fat settlement check.

11 Walter Olson 08.27.13 at 4:15 pm

I would think it more likely that they wanted to make an ideological point about how such-and-such could not be tolerated.

12 JeffreyRO5 08.27.13 at 10:54 pm

The photographer agreed to the rules when she entered the public commercial space. No one forced her to serve the public. If she doesn’t want to serve gays, or blacks, or Jews, whomever, she should get out of the public sphere or move to a state that lets you discriminate.

It’s not like she doesn’t have choices. She’s not being forced to do anything, other than do what all decent people do: follow the law!

13 Melvin H. 08.28.13 at 4:24 am

Jeffrey05, so did the gay couple–go to another photographer, not get “married”, etc. The problem here is that New Mexico doesn’t recognize gay marriage nor does it have civil unions (at the time); how can you be hauled into court because you won’t photograph something that legally can’t happen? This is forced expression/speech and should get thrown out by the Supreme Court. (of course, given the ruling in Albuquerque[?] yesterday,it could also make any decision moot.)

14 Stanman12 08.28.13 at 6:59 pm

My first reaction was “Why in the world would you want a bigot to photograph your wedding?” But I’m thinking the photographer probably made a big deal about what kind of person the bride was attracted to, which is really none of his business, and so the couple chose to retaliate with a lawsuit. It’s a shame that this sort of thing can be heard by courts, but it’s really the photographer’s fault. This would have only ended up with him looking bad, courts or not. The best thing to do is say I’m not available that weekend or quote them an outrageous fee. I find it hard to believe that the photographer “agreed” with every couple marrying that he photographed before (ie out of wedlock children, multiple divorces, old man marrying a teenager, etc. I’m sure he’s seen it all). Bottom line is keep your bigoted opinions to yourself!

15 gitarcarver 08.29.13 at 1:38 pm

Stanmann,

It would be helpful if you did some research on this case. For example, the photographer was not a man, it was a woman. There is no indication the photographer or the complaintant ever argued over anything. There is no testimony that the photographer said anything about the couple.

You call the photographer a “bigot” based upon what? A set of circumstances you fabricated in your mind?

No, you used the term “bigot” not as a conclusion to a set of facts, but rather as a substitute to attack the photographer and in essence tell her to “shut up.”

A rather large number of people and groups wrote legal briefs in both support and against the photographer’s position. Not one of them claimed she was or is a bigot. Not one of them claimed the woman had any animus toward the prospective client.

This case involved a clash of law vs rights.

I hope that when you go to assert your rights that you aren’t attacked by people and called a bigot, racist, etc based on who they want to believe you are rather than who you are.

Situations and cases like this are difficult enough without ramping up a false narrative.

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