Photographers guilty of ‘discrimination’ for refusing to shoot same-sex ‘wedding’: New Mexico court

June 7, 2012 (LifeSitenews.com) - A New Mexico appeals court has upheld a lower court verdict that a photography studio that refused to shoot a same-sex “wedding” on religious grounds is guilty of “sexual orientation discrimination” under state law.

According to the court’s verdict, the trouble began for Elane Photography when the company was contacted by lesbian Vanessa Willock asking if they could photograph a “commitment ceremony” for a Willock and her “partner.” The company, owned by Christian couple Elaine and Jonathan Huguenin, responded stating that they only shoot traditional weddings, and do not do “same-sex weddings,” but thanked Willock for her interest.

The following day, Willock’s anonymous “partner” sent an email to Elane Photography stating that she was going to “marry,” without stating that the “marriage” would be between herself and a woman. She asked if the company could travel to the location of the event, and was told that it could.

The two emails would be used as proof that the Huguenins were discriminating against Willock in her suit against the company, and resulted in a judgment of $6,637.94 against the defendant.

Although the government of New Mexico does not recognize same-sex “marriage,” civil unions, or domestic partnerships for homosexuals, the court ruled that Elane Photography had engaged in illegal discrimination based on sexual preference under the New Mexico Human Rights Act (NMHRA).

The court brushed aside the claim that photography is a form of “speech” protected under state and federal law, ruling, “The NMHRA does not force Elane Photography to endorse any message or modify its own speech in any way. Rather, the NMHRA requires Elane Photography merely to offer its photography services without discrimination against any member of a protected class.”

It also dismissed the argument that compelling the owners of the company to photograph such weddings would constitute a violation of freedom of religion, stating, “the burden on freedom of religion experienced by Elane Photography is unclear.”

The Alliance Defense Fund, which was representing the couple, has decided to appeal the case to a higher court.

“Americans in the marketplace should not be subjected to legal attacks for simply abiding by their beliefs,” said ADF Senior Counsel Jordan Lorence. “Should the government force a videographer who is an animal rights activist to create a video promoting hunting and taxidermy?

“Of course not, and neither should the government force this photographer to promote a message that violates her conscience. Because the U.S. Constitution prohibits the state from forcing unwilling artists to promote a message they disagree with, we will certainly appeal this decision to the New Mexico Supreme Court.”

Law professor and legal commentator Eugene Volokh denounced the decision as an attack on freedom of speech protections.

“It seems to me that the right to be free from compelled speech includes the right not to create First-Amendment-protected expression — photographs, paintings, songs, press releases, or what have you — that you disagree with, even if no-one would perceive you as endorsing that expression,” he wrote in his blog, the Volokh Conspiracy.

Volokh cites the U.S. Supreme Court case of Wooley v. Maynard (1978), in which a state license plate containing a motto that drivers disagreed with was seen as violating the first amendment, even though no reasonable person would be believe that the bearers of the plate were in agreement with the motto.

“It follows even more strongly, I think, that people should have a First Amendment right not to create expression that they don’t wish to create, regardless of whether outsiders would perceive such creation as an endorsement of the message,” said Volokh.

5 Conclusion The notion of responding to a responsibility confronts us with a paradox. It clearly involves an element of choice and a complete absence of choice. 68Southern Burlington County, NMCP v Township of Mount Laure/336 A 2d 713 (NJ 1975) (Mount Laurel I). 69Southern Burlington County NMCP v Township of Mount Laure/456 A 2d 390 (NJ 1983) (Mount Laurel m. 70Hil/s Development Co v Bernards Township 510 A 2d 621 (NJ 1986). 71See table of non-derogable rights ins 35 on states of emergency. l'mperty and equality: public accommodations and the constitution 85 Responding to a responsibility to which one is called upon to respond is not the act of a subject. But neither is it simply a matter of being 'subject to' a responsibility. To be responsible is a mode of existence that cannot be reduced to either the passive or the active voice.72 Judges have a difficult job. They must do justice to both parties before them. When each side claims legitimate interests and plausible arguments for legal , ......... ..,·v .. ,judges face a painful and sometimes unbearable situation. The easy to deal with dilemmas such as this is to ·convince oneself that some other vorncll.illlg body should deal with the problem. But this conclusion is always a I do not mean that the court should always take the opportunity to the law; I do mean that the court cannot refuse to become involved. When is excluded from a restaurant on the ground of race, the precedents may establish a right to exclude or a right of access, or they may be silent on the If they establish a right to exclude, the judge's refusal to change the law l"."'""'" a ruling of law as much as a choice to change the rule. If the law is the judge's refusal to create a right of access cannot be characterized as a to make law; rather, the judge has ruled that property owners have the to exclude on the basis of race in public accommodations, and has done so, '"r,..,,..,,,r, in the face of a constitutional right to be free from discrimination by persons. Either way the judge goes, she will be making law, determining meaning of property in the new post-apartheid South Africa is not all the same. A private home is not the same as a retail store. interests exist in the context of the home that do not exist in the context e store. Stores implicate interests in equal access to the public world of the - a world that is public, notbecause it is publicly owned, but because it '~~'"""'"nt" a sphere of life to which all have access without regard to race. It is strict application of property law (the right to exclude) could have the of re-inscribing apartheid in a country that just got rid of it that requires a teei)tucll.izA:tt"ionofthe meaning of property. It is not possible to merely extend granted to white people to black and colored persons. The rights previously by white owners must sometimes be changed to achieve equality. Thus, may not have been a public accommodations notion in the apartheid era white people were, in fact, admitted to public accommocl~tions even if had a right to exclude them. If some prejudice remains, and a residual to keep certain groups out of certain neighborhoods, the right to exclude be limited in the context of the type of property to which norms of access prevail over norms of exclusiveness. useful to distinguish among types of social settings new article: Just Shoot Me: Public Accommodation Anti-Discrimination Laws Take Aim at First Amendment Freedom of Speech VANDERBILT LAW REVIEW [Vol. 64:3:961 2011] JUST SHOOT ME 1001 3. Political Speech: It‘s Not Just for Politicians Third, courts must be careful to protect political speech from far-reaching public accommodation laws. Occasionally, the message that an entity refuses to endorse may be a political one, which strengthens its First Amendment claim. In Citizens United, the Court held that ―political speech must prevail against laws that would suppress it, whether by design or inadvertence.‖261 In Landmark Communications, Inc. v. Virginia, the Court stated that ―there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.‖262 Considering the continuing controversy surrounding the federal Defense of Marriage Act (―DOMA‖) passed in 1996,263 in addition to the often contentious battles surrounding the marriage amendments adopted by thirty states,264 it is a plausible argument that expression on such topics should be deemed political. Additionally, at least one influential scholar advocates a broad interpretation of political speech which would almost certainly encompass the expression in both Elane Photography and Ocean Grove.265 Cass Sunstein suggests that political speech should include all speech which ―is both intended and received as a contribution to public deliberation about some issue

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