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First Amendment and anti-discrimination statute clash in New Mexico

20 Sep 2013 9:38 AM | Anonymous

A New Mexican statute forbids public accommodations from discriminating against customers on account of their sexual orientation.  On August 22, 2013, the New Mexico Supreme Court upheld the application of that statute to a photography studio whose owners refused to photograph a same-sex commitment ceremony.


The case is Elane Photography, LLC v, Willock, No. 33,687, and the facts appear to have been undisputed.  Two women, Vanessa Willock and Misti Collinsworth, contacted Elane Photography about hiring Elane Photography to photograph their “commitment ceremony,” which all parties agreed was essentially a wedding.  Elane Photography’s co-owner and lead photographer, Elaine Huguenin, is personally opposed to same-sex marriage and declined to photograph the ceremony.  Willock filed a complaint against Elane Photography with the New Mexico Human Rights Commission for violating New Mexico’s anti-discrimination statute.  The Commission ruled in favor of Willock and awarded Willock her attorneys’ fees.  (At some point in the proceedings, for reasons unexplained, Willock eventually waived her recovery of fees.)  Elane Photography appealed to a trial court for trial de novo, and the trial court granted summary judgment in favor of Willock.  The New Mexico Court of Appeals affirmed, as did the New Mexico Supreme Court.


These are the key holdings of the New Mexico Supreme Court:


1.  Violation of the anti-discrimination statute.  Elane Photography did not dispute its status as a public accommodation under the anti-discrimination statute, but it argued that it did not discriminate against Willock on the basis of her sexual orientation.   It argued that it discriminated against Willock because the message that would be sent by Elane Photography’s involvement in the ceremony was one of endorsement of same-sex marriage.  The court rejected the attempt to separate status from conduct, holding that the statute prohibits not only discrimination based on sexual orientation but also discrimination based on “conduct that is inextricably tied to sexual orientation.”  Elane Photography’s violation of the anti-discrimination statute was established as a matter of law.


2.  Free speech.  Elane Photography argued that the application of the anti-discrimination statute violated Elane Photography’s free-speech rights, particularly its right to be free from being compelled to speak a message it does not endorse.  The court held that there was no free-speech violation.  First, the state is not compelling Elane Photography to promote a state-sanctioned message; it is forbidding Elane Photography from discriminating against potential clients based on sexual orientation.  Second, the state is not unconstitutionally requiring Elane Photography to “host or accommodate another speaker’s message.”  The court concluded that the conduct compelled by the anti-discrimination law did not amount to compelled speech, and that observers are unlikely to believe that Elane Photography’s involvement in the ceremony constitutes endorsement by Elane Photography’s owners or employees.  The court added that the Free Speech Clause does not give creative and expressive professions an exemption from anti-discrimination laws.


3.  Free exercise.  The court assumed without deciding that Elane Photography possesses rights under the Free Exercise Clause.  Under U.S. Supreme court precedent, valid and neutral laws of general application do not violate an individual’s rights under the Free Exercise Clause, even if the law forbids or requires conduct contrary to his religious beliefs.  The court held that the anti-discrimination statute is a neutral law of general application.  Thus, Elane Photography’s Free Exercise challenge failed.


4.  The New Mexico Religious Freedom Restoration Act.  Elane Photography mounted an argument based on the NMRFRA, which provides that no government agency may restrict a person’s free exercise of religion unless (1) the restriction is a rule of general applicability that does not directly discriminate against religion or among religions, and (2) the application of the restriction to the person is essential to further a compelling government interest and is the least restrictive means of furthering that interest.  Reviewing the NMRFRA as a whole, the court held that the Act is simply inapplicable in suits in which a government agency is not a party.  There being no government-agency litigant in this lawsuit, the NMRFRA did not apply.


  • 30 Sep 2013 10:36 PM | Bennett Rawicki (Administrator)
    I assume the initial reaction of most Americans to news of this opinion was shock. Wouldn’t fining a Christian photographer for refusing to provide services for a same-sex marriage ceremony, against her faith-based objection, infringe her religious liberty? While that is, of course, the effect of this ruling, the New Mexico Supreme Court did not even really reach that central issue. By holding, on statutory-interpretation grounds, that New Mexico’s Religious Freedom Restoration Act (NMRFRA) did not apply in this situation where the government was not a litigant, the Court’s opinion avoided dealing with the religious liberty issue head on.

    Although the backdrop of this whole case is religious liberty, the core of the photographer’s religious liberty argument was advanced through claims under the Free Exercise Clause and NMRFRA. The Free Exercise Clause does not offer much protection, because, according to Employment Division v. Smith, 494 U.S. 872 (1990), neutral laws of general applicability do not offend the Clause. The photographer made a free exercise argument, but the New Mexico Supreme Court seemed to handle it easily.

    Therefore the only ground remaining is NMRFRA, which subjects to strict scrutiny restrictions on the free exercise of religion. Strict scrutiny is the protection that should be given to religious liberty, but the Court held that NMRFRA, as written, restricted only government agencies from violating religious liberties, not private parties or courts. Because the photographer was sued by a private party (even though the photographer’s punishment was a government-imposed fine) NMRFRA did not apply. There are convincing arguments that the Court misinterpreted the statute, but this issue cannot be appealed because the New Mexico Supreme Court has the final word on interpreting New Mexico statutes. Thus, if Elane Photography decides to petition for certiorari (its representation, Alliance Defending Freedom, is still weighing options), the NMRFRA claim would be foreclosed.

    So what can Elane Photography do? New Mexico’s legislature needs to amend NMRFRA to provide protection of religious liberty in these circumstances where private parties sue to enforce the anti-discrimination laws. Once NMRFRA applies, the result of this situation would most likely be different. New Mexico would bear the burden to prove that requiring photographers to provide services against their religious objection to same-sex marriage served a compelling government interest and was no more restrictive than necessary. The government would fail to meet that burden, because, for one, there are other photographers the same-sex couple could choose, so the interest would not be compelling.

    The New Mexico Supreme Court’s opinion can be read at
    Link  •  Reply 

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