At the end of August, the New Mexico Supreme Court ruled in Elane Photography v. Willock that a Christian wedding photographer violated the New Mexico Human Rights Act (NMHRA) when it refused to photograph a lesbian couple’s commitment ceremony. (New Mexico does not currently permit same-sex marriage, though all the parties and the court frequently refer to the ceremony as a wedding.) This week, one of the parties in a similar controversy in Oregon, Sweet Cakes Bakery, announced that it would be closing shop, citing its opposition to baking wedding cakes for same-sex couples.

Elane Photography argued that it did not violate the NMHRA but, if it did, this application of the law violated the photography business’s Free Speech and Free Exercise rights under the First Amendment. The court disagreed, writing that “when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.”

Personally, I’d vote for same-sex marriage if I lived in a state considering such laws. Polygamy too, for that matter. If you are listening for a full-throated defense of traditional, heterosexual marriage to the exclusion of state recognition of any other arrangement, you won’t hear it here. I’m inclined to support religious understandings of traditional marriage, but I’m libertarian enough to let everyone — straight, gay, or otherwise — suffer through the headaches of having the government divide your assets when you get divorced.

Still, using anti-discrimination laws to mandate that all businesses operating as public accommodations provide services to same-sex couples’ weddings sounds like an unnecessary imposition on the sincere religious beliefs of others — and a great way to end up with lousy wedding photos….

The New Mexico Supreme Court rejected Elane Photography’s argument that, because photography is an expressive endeavor, it ought to be exempted from the state laws prohibiting public accommodations from denying service on the basis of a customer’s membership in a protected class. The majority writes:

The reality is that because it is a public accommodation, its provision of services can be regulated, even though those services include artistic and creative work. If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography’s choice of whom to photograph or not. The difference in the present case is that the photographs that are allegedly compelled by the NMHRA are photographs that Elane Photography produces for hire in the ordinary course of its business as a public accommodation. This determination has no relation to the artistic merit of photographs produced by Elane Photography.

The court continues:

We decline to draw the line between “creative” or “expressive” professions and all others. While individuals in such professions undoubtedly engage in speech, and sometimes even create speech for others as part of their services, there is no precedent to suggest that First Amendment protections allow such individuals or businesses to violate anti-discrimination laws. [ . . . ] Courts cannot be in the business of deciding which businesses are sufficiently artistic to warrant exemptions from anti-discrimination laws.

So, under current law, Elane Photography and similarly situated businesses such as Sweet Cakes Bakery in Oregon have two options aside from shucking off their conscientious objections to same-sex marriage. They can (1) cease operating as public accommodations, or (2) continue operating as public accommodations and begin serving same-sex couples seeking wedding services while also publicly proclaiming the businesses’ disapproval of same-sex marriage.

As for the first option, the New Mexico Supreme Court wrote, “If a commercial photography business wishes to offer its services to the public, thereby increasing its visibility to potential clients, it will be subject to the antidiscrimination provisions of the NMHRA. If a commercial photography business believes that the NMHRA stifles its creativity, it can remain in business, but it can cease to offer its services to the public at large.” This last option sounds like the one that Sweet Cakes recently opted for: its Facebook page now states, “This will be our last weekend at the shop; we are moving our business to an in-home bakery . . . .”

A push in this direction could cause a rise in businesses operating as “private clubs,” so that owners escape the requirements of anti-discrimination laws. Does the world need an Evangelical Convenience Store Club that refuses to sell tobacco or a Catholic Pharmacy Club that refuses to sell condoms? That’s fine by me, though I won’t be shopping at either one. But that’s hardly the progressive utopia that the promoters of the anti-discrimination laws seemed to be aiming for.

The second option is an intriguing one. The New Mexico Supreme Court notes that Elane Photography is free to disavow, implicitly or explicitly, any messages that it believes the photographs of a same-sex wedding may convey. The court writes, “Elane Photography and its owners likewise retain their First Amendment rights to express their religious and political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable anti-discrimination laws.”

Apparently, Elane Photography could post an virulently-worded disclaimer on its website . . . right next to sample photos from a same-sex ceremony it was compelled by law to photograph. If so, who wins in any meaningful sense? Would gay and lesbian couples actually hire such a photographer, even if they knew that by law they couldn’t be denied service? Is proving a political point worth ending up with terrible wedding pictures? How is that a satisfying conclusion for either the religiously-motivated business owners or the same-sex couples who want their blessed days recorded and celebrated?

This possibility highlights what is different about services such as wedding photography or cakes and the sale of most goods or services. If I need a hotel off the Interstate to stay at for the night, I might not care too much whether the proprietors have a sign saying they don’t like single women but will begrudgingly sell me a room in order to comply legally. I might not care that much if a particular restaurant broadcasts its condemnation of same-sex unions, so long as my gay and lesbian friends and I can buy our chicken sandwiches there. I just want my lunch. But in the case of a wedding photographer, or anyone else whose work requires subjective judgment, I would only want to employ the services of someone who actually wanted my business, not someone who was compelled by law and against their own conscience.

Strong-arming others who differ on fundamental matters of faith and conscience should be something our society does cautiously and rarely, when at all. In cases like Elane Photography, neither side is served well by doing so. Sadly, ironically, this does little more than encourage less tolerance among people who disagree. Not more.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at [email protected]


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