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Court upholds fine against Christian photographer for refusing to photography homosexual wedding.
Volokh Conspiracy ^ | 12-16-2009 | Eugene Volokh

Posted on 12/16/2009 4:11:28 PM PST by freedomwarrior998

The case is Elane Photography, LLC v. Willock, and I blogged about it here, when it was being considered by the New Mexico Human Rights Commission. The decision was handed down last Friday, but the opinion wasn’t distributed until yesterday. I hope to blog more about it today, but here’s my analysis from last year:

Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane’s work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock’s same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney’s fees and costs....

[The order rests] on two interpretations of state law: (1) This sort of photography company constitutes a “public accommodation,” defined by state law “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.” (2) A refusal to photograph a same-sex commitment ceremony constitutes sexual orientation discrimination, which New Mexico law forbids. These may or may not be sensible interpretations of the statutory text. But the result seems to me to likely violate the First Amendment (though there’s no precedent precisely on point).

[1. Compelled Speech.] Photography is an art, and Huguenin is an artist. It may not be high art, but it embodies a wide range of artistic choices (especially since she says she takes a “photojournalist” approach, rather than just doing normal staged photos). And though she sells the art to its subjects, that is of course part of a long and continuing tradition in the arts, including painting and sculpture, as well as photography. Certainly many of the works protected by the First Amendment (books, newspapers, movies, and the like) were created for money and distributed for money.

Yet the New Mexico government is now telling Huguenin that she must create art works that she does not choose to create. There’s no First Amendment case squarely on point, but this does seem pretty close to the cases in which the Court held that the government may not compel people to express views that they do not endorse (the flag salute case, West Va. Bd. of Ed. v. Barnette, and the license plate slogan case, Wooley v. Maynard).

For whatever it’s worth, Huguenin also says she exercises political judgment in deciding what to photograph (for instance, she reports that she refuses to make photographs that put horror films in a positive light, or to take photographs that positively portray abortion, pornography, or nudity, as well as same-sex marriage). I don’t think that sort of political selectivity should be required for photographers to be protected as artists, but it seems to me to highlight the scope of the artist’s judgment, and the artist’s constitutional right to exercise such judgment (just as a bookstore has the right to choose which books to stock).

Consider also a hypothetical analogy: Say that instead of Willock’s trying to hire a photographer, Willock was trying to hire a solo freelance writer (or a writer in a two-person freelancing partnership) to write materials for Willock’s (hypothetical) same-sex marriage planning company. The writer refused on the grounds that she didn’t want to promote such a company.

I take it the law would cover the writer as much as it would cover the photographer (why wouldn’t it?). Yet wouldn’t requiring writers — even writers of press releases and Web sites — to write words that express views they reject violate the First Amendment? And if not, what’s the difference between that and requiring photographers to take photographs that implicitly but strongly express views they reject? (Wedding photographs, of course, express views celebrating the event being photographed.) ...

[2. Religious Exemptions:] [And] the decision may also violate the photographer’s religious freedom rights under the New Mexico Religious Freedom Restoration Act.

The act, which is similar to the legal rules in place in about half the states and as to federal law, provides that

A government agency shall not restrict a person’s free exercise of religion [i.e., an act or a refusal to act that is substantially motivated by religious belief] unless ... the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

Elaine Huguenin’s refusal to photograph a same-sex commitment ceremony does seem to be substantially motivated by her religious belief. She is therefore entitled to an exemption unless applying the law to her passes “strict scrutiny” — “is the least restrictive means of furthering [and is essential to furthering a] compelling governmental interest.”

What government interests might justify denying Huguenin the exemption? If the interest is in making sure that people have roughly equal access to services, regardless of their sexual orientation, then I doubt that requiring Huguenin to photograph the ceremony is essential to serving that interest. There surely are lots of other photographers in Albquerque, and I have no reason to think that all or even most of them share Huguenin’s religious objections; if Huguenin is given an exemption, same-sex couples will still have lots of photography services available to them. And given that a wedding photographer, to do a great job, likely needs to feel some empathy with the ceremony, forcing the Huguenins of the world into photographing a ceremony that they disapprove of will likely not give same-sex couples very good service.

But if the government’s view is that people have a moral right not to be discriminated against — entirely independently of any practical burden that such discrimination imposes on them — based on their sexual orientation, then it would appear that every instance of sexual orientation discrimination would violate that right. And if the government has a compelling interest in vindicating that right, then granting an exemption even to a few religious objectors would jeopardize that interest, and denying the objection would be essential to maximally furthering the interest. On the other hand, can New Mexico assert such a compelling interest when it itself discriminates against same-sex couples in its marriage laws?

So the religious freedom issue would turn, I take it, on what version of the government interest New Mexico courts ultimately recognize — the first version, focusing on practical access to services, which should lead to granting an exemption, or the second, focusing on a supposed moral right not to be discriminated against, which should lead to denying an exemption (if the government is seen as having a compelling interest in protecting that right). Incidentally, in a similar area, marital status discrimination in housing against unmarried couples, the several state courts applying state religious accommodation regimes have split, based precisely on this issue of which sort of interest is involved.

I have more thoughts on the subject, including some replies to responses that I had gotten to my original arguments, here; and, as I said, I hope to blog more on this soon.


TOPICS: Constitution/Conservatism; Government; News/Current Events; US: New Mexico
KEYWORDS: alanmalott; alanmmalott; elanephotography; firstamendment; gaymafia; homosexual; homosexualagenda; malott; photographer
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Folks, here is the short version. The Court in New Mexico upheld a fine against a Christian woman who refused to photograph a same-sex "commitment ceremony."

In other words, the homosexual mafia will fine you if you dare to oppose them in any way.

It is happening here folks. In These United States.

1 posted on 12/16/2009 4:11:29 PM PST by freedomwarrior998
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To: All
Click here for the Court Decision.

The Trial Judge is a big time Obamunist who heavily contributed to Obama's 2008 campaign.

2 posted on 12/16/2009 4:12:54 PM PST by freedomwarrior998
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To: freedomwarrior998

And here we thought Lincoln freed the slaves...


3 posted on 12/16/2009 4:12:58 PM PST by freedumb2003 (Communism comes to America: 1/20/2009. Keep your powder dry, folks. Sic semper tyrannis)
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To: freedomwarrior998

this f*cking BS needs to be uprooted out of our society. By revolution if necessary.


4 posted on 12/16/2009 4:15:00 PM PST by pissant (THE Conservative party: www.falconparty.com)
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To: freedomwarrior998
You will watch it and you will like it!

Just like that scene in clockwork orange


5 posted on 12/16/2009 4:15:16 PM PST by Mount Athos (A Giant luxury mega-mansion for Gore, a Government Green EcoShack made of poo for you)
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To: freedomwarrior998

What a crock. Political correctness says yu must overlook what is right to you. Sometime soon I hope the hammer comes down on all these do gooders.


6 posted on 12/16/2009 4:15:22 PM PST by JamesA (You don't have to be big to stand tall)
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To: freedomwarrior998

In other words, the government will be dictating to her the jobs she must accept.

She should have told the happy couple sorry but she was booked that day and give no other explanation.


7 posted on 12/16/2009 4:17:35 PM PST by bgill (The framers of the US Constitution established an entire federal government in 18 pages.)
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To: freedomwarrior998

Hope she goes the “I don’t photograph pornagraphy” defense route in an appeal.

Can also appeal on grounds that making her photograph a same-sex marriage would violate her religious rights NOT to do something that is against her religion.

Could be the start of something big.


8 posted on 12/16/2009 4:17:43 PM PST by MadMax, the Grinning Reaper
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To: pissant
We are rapidly heading there.

This is a direct assault on the First Amendment. The Court has actually declared that Christians will be FORCED to accept jobs from homosexuals, even if their religious beliefs forbid it.

Under the "logic" of this ruling, If a homosexual pervert decides to hire a Christian photographer to shoot a homosexual perversion parade, the Christian could be fined for refusing.

9 posted on 12/16/2009 4:18:23 PM PST by freedomwarrior998
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To: freedomwarrior998

Even here in our Yorktown schools there exists a “gay mafia”
of students, teachers and admins.
Politically incorrect thoughts/attitudes always get the non-member students punished.
I have 3 boys in this system and I’ve seen it happen many times.
Who else has noticed this phenomenon?


10 posted on 12/16/2009 4:19:30 PM PST by Yorktownpatriot
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To: MadMax, the Grinning Reaper
She actually asserted that there are several types of photography that she does not do, including, making photographs that put horror films in a positive light, or to take photographs that positively portray abortion, pornography, or nudity, as well as same-sex marriage.
11 posted on 12/16/2009 4:20:26 PM PST by freedomwarrior998
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To: freedomwarrior998

That is EXACTLY it. And we sure as sh*t better be slamming these worthless, treasonous vermin right back in the face. The blowback needs to be fierce.


12 posted on 12/16/2009 4:20:40 PM PST by pissant (THE Conservative party: www.falconparty.com)
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To: Yorktownpatriot
Here is what Professor Volokh said about the effect of the ruling, note the Bold: I just finished reading the New Mexico trial court’s Elane Photography decision, and thought I’d blog a bit about it. Let me begin with the compelled speech question. Elane Photography — a husband-and-wife company in which the wife, Elaine Huguenin, is the head photographer (and I think the only routine photographer) — refused to photograph a same-sex wedding. This, the court held, violates state antidiscrimination law, since commercial photographers, as well as “film editor[s], commercial music composer[s], commercial musician[s], graphic designer[s] or any other creative professional[s] whose services are available to the public,” are treated as “public accommodation[s]” under New Mexico law. And the refusal to photograph same-sex weddings constitutes sexual orientation discrimination in public accommodations, which state law bans. But, Huguenin says, requiring me to photograph same-sex weddings on the same terms as other weddings compels me to create expressive works. The First Amendment presumptively bars speech compulsions as well as speech restrictions; creating photography is a form of speech; therefore, I can’t be compelled to create photography, any more than I can be compelled to say things or display things on my property. Not so, says the court: Plaintiff is not being asked to represent the government’s position ..., nor to alter its message .... Plaintiff’s message is not and has never been about same-sex marriages. Rather, its message is fine photography of special moments. Unlike the parade [involved in Hurley, a case in which the Supreme Court held a parade organizer could not be legally compelled to let a gay/lesbian/bisexual group’s float into its parade –EV], Plaintiff’s final message is not its own. Instead, Plaintiff is conveying its client’s message of a day well spent. As Defedant Willock states, Plaintiff is really a conduit or an agent for its clients. As such, the Court’s finding that Plaintiff cannot refuse to photograph same-sex couples during a commitment ceremony is not an infringement of Plaintiff’s right to freedom of expression. 1. The first thing we should note is the breadth of the court’s reasoning: It applies not just to photographers, but also to the musicians, composers, graphic designers, film editors, and other creators that the court mentioned earlier in the opinion. It would also apply to freelancers who write press releases, advertising copy, and so on. And I take it that it would also apply to bookstores, movie theaters, and other such distributors of others’ works; the authors and filmmakers aren’t “clients” of such distributors, but still the distributors’ “final message is not [their] own,” and they are “really a conduit” for others’ work. I’ve heard some people argue that wedding photography (as opposed to artistic expression) isn’t really expression, because it’s too banal and straightforward. I doubt that this is so, but in any event it’s clear that the court’s reasoning applies without regard to the supposed banality of the expressive work. 2. But is the court’s reasoning, broad as it is, correct? Is it permissible for the law to require freelance writers, composers, artists, editors, and the like to create speech that they don’t want to create? Might it even be permissible for the law to require other conduits, such as bookstores and movie theaters, to distribute speech that they don’t want to distribute? (I use “speech” here in the standard First Amendment sense, which includes music, pictures, video, and the like.) I don’t think so. After all, despite the court’s attempt to distinguish Wooley v. Maynard — the license plate motto case — a license plate motto isn’t the driver’s own (and certainly wasn’t seen that way before the Court recognized a driver’s right to obscure motto). The drivers in Wooley were simply conveying the government’s message; they were a conduit for the government. Yet the Court held that “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind,’” and that the Maynards had a right “to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.” Now it’s true that here the government isn’t specifically requiring people to carry a particular string of words; and while a same-sex wedding may represent “an idea” (actually, many ideas), photographs of the wedding don’t convey the idea quite as specifically as the “Live Free or Die” on the license plate did. Nonetheless, Huguenin is being compelled not just to foster but to create a particular sort of expression — expression celebrating a same-sex union — that she finds morally objectionable. Nor does it matter, I think, that Huguenin is in business. The Court has long held that speech retains full protection even when it’s sold for money. (Fully protected speech products such as newspapers, books, and the like are routinely sold for money.) The freedom from compelled speech applies to such sold-for-money media as well as to other media. The right not to create speech that you disapprove of should likewise extend to the right not to create such speech for money as well as the right not to create such speech for free. I take it, for instance, that the Maynards’ right not to display the “Live Free or Die” motto would apply even if the Maynards used their car to deliver pizzas or drive to commercial photography assignments. The same should extend to the right not to create works you disapprove of. Wooley did involve the display of speech, while this case involves the creation of speech. But that should cut in favor of Elane Photography, rather than against: It seems to me that having to create speech, using your own creative abilities and judgments as an artist, musician, writer, or what have you, is an even deeper “foster[ing]” of “an idea [you might] find morally objectionable” — an even deeper intrusion on “individual freedom of mind” — than is simply having to displaying what is clearly the government’s message on a government-provided license plate. 3. Finally, for those who disagree, let me ask (as I did in my posts on the Human Rights Commission decision): Say you’re a freelance writer, who holds himself out as a business offering to perform a service. Someone tries to hire you to write materials — press releases, Web site text, and the like — for a same-sex marriage planning company, a Scientology book distribution company, a state branch of the Socialist party, a company that gets its income through legal prostitution, or whatever else. (Note that some jurisdictions ban discriminate based on “political affiliation” and “source of income” as well as religion, sexual orientation, and the like.) May the government force you, on pain of damages liability, to write those materials, even if you would prefer not to because of the sexual orientation, religion, political affiliation, or whatever else to which the materials would be related? That’s what the trial court decision seems to hold. Or do you have a First Amendment right to choose which words you write and which you decline to write?
13 posted on 12/16/2009 4:21:25 PM PST by freedomwarrior998
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To: freedomwarrior998
"Aw shucks, I had my settings wrong and the pictures are all BLANK!"

Seriously, if the photographer did go and shoot the ceremony because she was ordered to do so, and then a portable hard drive crashed, would she be held legally liable because there were no shots? How can someone who is ordered by a court to perform a BUSINESS SERVICE be held liable when that service is substandard??

I ask this, because as a part time photographer, I've had a hard drive crash on me, with 2000 gorgeous shots we had just loaded onto it that day from a photo shoot lost -- forever. (sob, throw up, repeat as felt.)

14 posted on 12/16/2009 4:21:26 PM PST by Tuscaloosa Goldfinch ( T.G., global warming denier.)
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To: freedomwarrior998

We are photographers. We have thousands of dollars invested in our cameras. I saw nothing in the instructions of these cameras that told me I had to photograph anything. The courts could kiss my a$$. It’s my decision what I am going to shoot and what I’m not, not the courts.


15 posted on 12/16/2009 4:23:21 PM PST by RC2
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To: pissant

Brother where we’re heading, only guns is going to undo this shit. If you thought the first civil war was bad, you have no idea how ugly the next one will be.

When it breaks, it’s going to break hard. There won’t be enough National Guard units to stop the unrest. And the Guard will be splintered by social and racial issues as well. Ugly real fast.


16 posted on 12/16/2009 4:24:02 PM PST by panzerkamphwageneinz
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To: freedomwarrior998

Is it going to be appealed to the Supreme Court? I didn’t see that, if it happens to be in the article...


17 posted on 12/16/2009 4:24:06 PM PST by Star Traveler (The God of Abraham, Isaac and Jacob is a Zionist and Jerusalem is the apple of His eye.)
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To: freedomwarrior998

Maybe it is time for some of these “mafiosos” to be found on cold mornings, reclining on barbed wire fences...

A.A.C.


18 posted on 12/16/2009 4:26:36 PM PST by AmericanArchConservative (Armour on, Lances high, Swords out, Bows drawn, Shields front ... Eagles UP!)
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To: freedomwarrior998

Freedom of religion and freedom of association should always outweigh any so called “civil rights” legislation.


19 posted on 12/16/2009 4:26:48 PM PST by A_Former_Democrat
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To: Tuscaloosa Goldfinch
There would probably be liability in that circumstance. A photographer would be held to the same standard of care as other photographers in the industry and there is probably a negligence claim that could be made for lost photographs. That's part of the reason this decision is so bad.

In essence the Court is enacting a Stalinist fine system against anyone who refuses the homosexual mafia's demands.

20 posted on 12/16/2009 4:27:37 PM PST by freedomwarrior998
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