Do Religious Freedom Restoration Acts Apply When Courts Enforce Civil Causes of Action?

I blogged earlier today about the New Mexico Court of Appeals decision in Willock v. Elane Photography, which held that a wedding photographer could be held liable for refusing to photograph a same-sex commitment ceremony. I argued that the decision violated the photographer’s First Amendment rights not to create expressive works (such as photographs) that she doesn’t want to create.

But the photographer (Elane Huguenin) also argued that, even setting aside the compelled speech argument, she was entitled to a religious exemption from the state ban on sexual orientation discrimination in places of public accommodation. First, she argued that this was so under the federal Free Exercise Clause and the New Mexico Constitution’s similar provision, but the court responded that those provisions do not generally require religious exemptions. I think that’s a correct conclusion under the Free Exercise Clause, given the Employment Division v. Smith precedent, and a plausible one under the New Mexico Constitution.

But New Mexico also has a Religious Freedom Restoration Act, which provides, in relevant part,

[§ 28-22-1.] Sections 1 through 5 of this act may be cited as the “New Mexico Religious Freedom Restoration Act”.

[§ 28-22-2.] … A. “free exercise of religion” means an act or a refusal to act that is substantially motivated by religious belief; and
B. “government agency” means the state or any of its political subdivisions, institutions, departments, agencies, commissions, committees, boards, councils, bureaus or authorities….

[§ 28-22-3.] A government agency shall not restrict a person’s free exercise of religion 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.

[§ 28-22-4.] A. A person whose free exercise of religion has been restricted by a violation of the New Mexico Religious Freedom Restoration Act may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government agency, including:
(1) injunctive or declaratory relief against a government agency that violates or proposes to violate the provisions of the New Mexico Religious Freedom Restoration Act; and
(2) damages pursuant to the Tort Claims Act, reasonable attorney fees and costs.
B. Immunity from liability of the government agency and its employees is waived for an action brought pursuant to this section.

[§ 28-22-5.] Nothing in the New Mexico Religious Freedom Restoration Act authorizes a government agency to burden a person’s free exercise of religion. The protection of the free exercise of religion granted in that act is in addition to the protections granted by federal law and the state and federal constitutions. The New Mexico Religious Freedom Restoration Act does not affect the grant of benefits or tax exemptions to religious organizations nor does it impair any other exemptions granted by law.

So if Huguenin can show that applying the antidiscrimination law to her would “restrict[]” her “refusal to act that is substantially motivated by religious belief,” then she should be entitled to raise that “as a … defense in a judicial proceeding,” 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.” And, as I argued in this post, Huguenin should have a strong claim here, especially if there are many other photographers in the area who would gladly photograph a same-sex commitment ceremony — and especially given that the state’s claim that it has a compelling interest in eliminating every instance of sexual orientation discrimination rings hollow given that the state itself discriminates against same-sex commitment ceremonies in its own marriage laws.

But the New Mexico Court of Appeals concluded that the New Mexico RFRA doesn’t even apply here, because “this statute was not meant to apply in suits between private litigants”:

The text of the NMRFRA is clear in limiting its scope to cases in which a “government agency” has restricted a person’s free exercise of religion. Elane Photography claims that the language of the statute authorizing a litigant to “assert [a NMRFRA] violation as a claim or defense in a judicial proceeding” allows cases between private parties. Elane Photography takes this language out of context. In context, parties may raise NMRFRA violations as a claim or defense to “obtain appropriate relief against a government agency[.]” Willock is not included in the definition of a “government agency” under the NMRFRA, and this statute was not meant to apply in suits between private litigants.

But I think that can’t be right. The text of the statute covers all “the state or any of its political subdivisions, institutions, departments, agencies, commissions, committees, boards, councils, bureaus or authorities.” That includes the New Mexico Human Rights Commission, which initially found Elane Photography liable, and ordered it to pay over $6600 in attorney fees, and it includes the New Mexico courts — which are surely “institutions” of “the state” of New Mexico.

Indeed, the proceedings were initiated by a private person, Vanessa Willock. But Willock asked “the state” to order Elane Photography to pay money, and that’s what the state did. Under the text of the New Mexico RFRA, Elane Photography has the right to argue that imposing liability on it violates RFRA, and to “assert that violation as a … defense in a judicial proceeding and obtain appropriate relief against a government agency,” which would include a judicial determination that the “government agency” (the Commission or a court) may not hold Elane Photography liable.

Nor does the history of the statute somehow limit this express text. Briefly, from 1963 to 1990, the Supreme Court held that the Free Exercise Clause secured people a presumptive right to an exemption from generally applicable laws. The Free Speech Clause throughout that era was seen by the Supreme Court as applying to civil lawsuits between private parties (including even purely common-law claims, and certainly to claims brought under statutes), the Free Exercise Clause was often used in lower courts as a defense in such lawsuits (chiefly claims recognizing a “ministerial exception” to antidiscrimination laws), and the First Amendment was used by the Supreme Court as a limitation on civil lawsuits involving church property disputes. Then in 1990 the Court held, in Employment Division v. Smith, that the Free Exercise Clause generally did not secure such a right, as against generally applicable laws; and in response to that, various jurisdictions — including New Mexico — sought to “restore” the 1963-to-1990 regime, a regime that applied to civil lawsuits between private parties and not just to criminal prosecutions or claims brought by the government.

There is thus no reason to think that the New Mexico legislature specifically intended to exclude civil lawsuits among private parties from coverage by the New Mexico RFRA. And, as I said, nothing in the text of the statute excludes such lawsuits. So Elane Huguenin’s claim does indeed seem to be covered by the New Mexico RFRA. Again, I hope that she and her lawyers at the Alliance Defense Fund ask the New Mexico Supreme Court to review this question (though note that the New Mexico Supreme Court will be the end of the line for this issue, since that court is the ultimate interpreter of state statutes; the U.S. Supreme Court could review the First Amendment compelled speech issue in this case, but not the state RFRA issue).

I should note that, as the court points out, some federal opinions have interpreted the federal RFRA as excluding civil lawsuits between private parties, using a similar argument. (The court notes two opinions that have so held, and one that has held the contrary.) But those opinions aren’t binding on the New Mexico courts, and I think they are mistaken, for the reasons mentioned above.