Religious Accommodation Statutes and a Right Not To Participate in Same-Sex Weddings

New Mexico is one of about two dozen states in which religious objectors are presumptively entitled to religious exemptions from generally applicable laws. (About a dozen states, plus the federal government, provide this protection by statute; the other dozen states provide it as an interpretation of the state constitution’s religious freedom provisions.) Here’s the relevant statute, the New Mexico Religious Freedom Restoration Act:

A government agency [= the state or any of its political subdivisions, institutions, departments, agencies, commissions, committees, boards, councils, bureaus or authorities] shall not restrict a person’s free exercise of religion [= an act or a refusal to act that is substantially motivated by religious belief] unless:

A. the restriction is in the form of a rule of general applicability and does not directly discriminate against religion or among religions; and

B. 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.

Here’s how the court in Elane Photography v. Willock explains why Elane Photography shouldn’t get a religious exemption under this law from the ban on sexual orientation discrimination in public accommodation:

1. Elane Photography is not a “person,” because it’s a “limited liability company” (here, a husband-and-wife company for which Elaine Huguenin is the head photographer).

2. In any event, the law doesn’t apply to a private lawsuit between two parties.

3. The law “is the least restrictive means to further the government’s interest in eliminating discrimination against certain groups,” because “[t]here is no doubt that the State of New Mexico has a compelling interest in reducing, if not eradicating, acts of discrimination.” “[A]ssuring women [or any disadvantaged group] equal access to … goods, privileges, and advantages clearly furthers compelling state interests.”

But this strikes me as quite mistaken. First, “persons” generally includes corporations, and whatever you might say about that when it comes to large, impersonal entities, surely that makes sense here. Requiring a small, closely-held company to do something burdens the rights of its owners, especially when the owners are the primary employees who would have to perform the required acts. I take it, for instance, that if a law requires certain businesses to be open Saturdays, and a Jewish objector seeks an exemption (assuming there’s a religious exemption statute in the jurisdiction), it shouldn’t matter whether his small store is a sole proprietorship, a partnership, or a limited liability company. Plus, for whatever it’s worth, the federal RFRA has been applied to protect the rights of churches, which are corporations; if such corporates are “person[s],” why wouldn’t small husband-and-wife limited liability companies be as well?

4. The federal circuits currently disagree on whether the federal RFRA is applicable to civil lawsuits between private parties that are based on federal statutes. But the New Mexico court is mistaken in saying that it “has … been established that a federal statute similar to the NMRFRA cannot be raised in suits between private parties where the government is not also a party”; in fact, there is a disagreement between the Second and Seventh Circuits on the matter. Moreover, the statutory text seems to me to cover courts making decisions in civil statutory lawsuits between private parties. A court order imposing damages on someone for a “refusal to act that is substantially motivated by religious belief” involves “the state” acting. Nor does the often-cited textual argument to the contrary — that the remedial provision authorizes “relief against a government agency” — persuade me. One form of appropriate relief against a government agency (here, a state court or the state Human Relates Commission) is simply reversal on appeal of a decision that burdens religious practice.

5. Finally, I discuss the compelling interest argument more here, but here’s the short version: How can New Mexico argue that it has such a compelling interest in preventing discrimination based on sexual orientation, when it comes to same-sex weddings, when it itself refuses to recognize same-sex weddings? New Mexico doesn’t give same-sex couples a large range of important governmental benefits that it gives opposite-sex couples. Yet when Elaine Huguenin decides to refuse to provide same-sex couples a service that is

  • much less valuable than the benefits that New Mexico refuses to provide,
  • likely available from many other photographers (something that can’t be said for most government-provided legal benefits), and
  • probably available at a higher quality from many other photographers, since I assume that a photographer who sees a same-sex wedding as a beautiful and holy event will probably do a better job of capturing its beauty than one who sees a same-sex wedding as a sin

then New Mexico says that there’s a compelling government interest in preventing sexual orientation discrimination, and the only way of adequately serving that interest is requiring all wedding photographers to photograph same-sex weddings on par with opposite-sex weddings, regardless of their religious beliefs. That doesn’t strike me as particularly plausible.

Elane Photography’s lawyers report that they will appeal, to the New Mexico Court of Appeals.