Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

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
Navigation: use the links below to view more comments.
first previous 1-2021-4041-49 next last
To: RC2
I agree with you, but they are going to use government force to collect the $6,600.00 from the photographer in this case.

The homosexual mafia has actually enlisted the government on their behalf to force others to bow to them. I never thought I would see this happening here.

21 posted on 12/16/2009 4:28:56 PM PST by freedomwarrior998
[ Post Reply | Private Reply | To 15 | View Replies]

To: Star Traveler

I hope there is an appeal. The next step would be the appellate Courts in New Mexico.


22 posted on 12/16/2009 4:29:37 PM PST by freedomwarrior998
[ Post Reply | Private Reply | To 17 | View Replies]

To: bgill

I’d have photographed it...not sure they would like the pictures, but anyone can have an off day!


23 posted on 12/16/2009 4:29:46 PM PST by Mr Rogers (I loathe the ground he slithers on!)
[ Post Reply | Private Reply | To 7 | View Replies]

To: Mr Rogers
Then they would try to sue you for negligence. It's a no win situation.

Think about this one too, what if a homosexual pervert comes in and tells you that you are going to shoot one of their sodomite parades, like it or not.

24 posted on 12/16/2009 4:30:55 PM PST by freedomwarrior998
[ Post Reply | Private Reply | To 23 | View Replies]

To: freedomwarrior998

Take it to a higher court!


25 posted on 12/16/2009 4:32:49 PM PST by SumProVita (Cogito, ergo...Sum Pro Vita. (Modified Decartes))
[ Post Reply | Private Reply | To 1 | View Replies]

To: freedomwarrior998

>>It is happening here folks. In These United States.<<

.
You ain’t seen nothing yet. We have become a morally runamok country.


26 posted on 12/16/2009 4:33:04 PM PST by 353FMG (Save the Planet -- Eliminate Socialism)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Tuscaloosa Goldfinch

backups are a wonderful thing


27 posted on 12/16/2009 4:33:20 PM PST by driftdiver (I could eat it raw, but why do that when I have a fire.)
[ Post Reply | Private Reply | To 14 | View Replies]

To: panzerkamphwageneinz

We are at the crossroads now. 2010 is the last chance to save the Republic. If we don’t get this ship turning around, the patriots will have to march the marxists out to sea.


28 posted on 12/16/2009 4:34:29 PM PST by pissant (THE Conservative party: www.falconparty.com)
[ Post Reply | Private Reply | To 16 | View Replies]

To: freedomwarrior998

Couldn’t they have just told them that they were already booked for that weekend?


29 posted on 12/16/2009 4:34:51 PM PST by dfwgator
[ Post Reply | Private Reply | To 1 | View Replies]

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

I'd close the freakin' doors first.

You can be enslaved only if you're afraid to fight back. Freedoms just another word for "nothing left to lose".

If president punk takes it all away, and we have "nothing left to lose" then we are free to MISbehave.
30 posted on 12/16/2009 4:36:12 PM PST by FrankR (oBAMA: I'd rather pay higher premiums and live, than sit before your Death Panels and die.)
[ Post Reply | Private Reply | To 7 | View Replies]

To: freedomwarrior998

I would assume the courts would compell the lesbians to pay for the compelled service ahead of time

of course, if the artist thinks the event was best represented by taking pics of everyone’s feet... then the ‘couple’ would have to accept it


31 posted on 12/16/2009 4:40:36 PM PST by sten
[ Post Reply | Private Reply | To 1 | View Replies]

To: freedomwarrior998; All

it also makes me wonder if this is a test for when doctors retire instead of working for 0bamacare


32 posted on 12/16/2009 4:43:02 PM PST by sten
[ Post Reply | Private Reply | To 1 | View Replies]

To: freedomwarrior998

I don’t think this will survive an appeal to a higher court. It’s just plain nuts. Obviously once the couple learned that this photographer was opposed to same-sex marriages/commitment cermeonies, they didn’t really want her to be their photographer anyway.


33 posted on 12/16/2009 4:47:19 PM PST by GovernmentShrinker
[ Post Reply | Private Reply | To 1 | View Replies]

To: dfwgator
Couldn’t they have just told them that they were already booked for that weekend?

Possibly they didn't know it was a Gaystapo "wedding" when it was booked. If this government coercion stuff doesn't stop it's going to end badly.

It's clear to me that Comrade Zero and his Commissars are just waiting for any sign of anti-government violence as an excuse to crack down hard. It's time to proceed very carefully with non-violent protests.

34 posted on 12/16/2009 4:53:30 PM PST by Bernard Marx ("Civilizations die by suicide, not from murder" Toynbee)
[ Post Reply | Private Reply | To 29 | View Replies]

To: freedomwarrior998
The moral here is to never treat these degenerate special interest classes as equals.

They are intelligent pathogens, and their one purpose is to destroy normal society, and replace it with degenerate perversion.

This Christian lady was set up, but I certainly suspect it won't happen a second time. She will meet everyone involved check the marriage license, and insist on identification. If it's another pervert pair, she won't even start a contract form, she'll be booked or busy on the wedding day.

35 posted on 12/16/2009 4:54:48 PM PST by Navy Patriot (Sarah and the Conservatives will rock your world.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: freedomwarrior998
i wonder what kind of time she could get sentenced to if she simply tells them to go 0bama themselves???
36 posted on 12/16/2009 4:58:00 PM PST by Chode (American Hedonist *DTOM* -ww- I AM JIM THOMPSON!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: freedomwarrior998

In future, if anyone demands she must work for them, she should agree, but a clause in her contract should clearly state that she is not liable in any way if any or all of her photographs are unsatisfactory, for any reason. Nor will any money be refunded in the case of unsatisfactory photographs.

Then she should take hundreds of photos which are not stored. When they ask for them, she should reply that they were inadvertently deleted, and that no refund will be forthcoming.


37 posted on 12/16/2009 4:58:56 PM PST by yefragetuwrabrumuy
[ Post Reply | Private Reply | To 1 | View Replies]

To: dfwgator
Couldn’t they have just told them that they were already booked for that weekend?

As I recall the female "bride" showed up alone, carefully did not mention that the "groom" was also female, and got the photographer to write a contract and book the date.

It was a set up.

38 posted on 12/16/2009 5:04:19 PM PST by Navy Patriot (Sarah and the Conservatives will rock your world.)
[ Post Reply | Private Reply | To 29 | View Replies]

To: freedomwarrior998

I used to photograph weddings, but have quit. I’ve been asked to do homosexual “weddings,” but have never done one.


39 posted on 12/16/2009 5:04:57 PM PST by Richard Kimball (We're all criminals. They just haven't figured out what some of us have done yet.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Richard Kimball

I’m a tutor. I reserve the right to take you on as a client. If I don’t like you for whatever reason, it’s my right to refuse service.

FReepers should book this gal for their wedding, so that this all turns out to be publicity in her favour. :)


40 posted on 12/16/2009 5:32:07 PM PST by BenKenobi
[ Post Reply | Private Reply | To 39 | View Replies]


Navigation: use the links below to view more comments.
first previous 1-2021-4041-49 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson