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The New Mexico Human Rights Commission Refuses to Consider Religious Freedom Objection:

It turns out the Commission simply refused to consider Elane Photography's religious exemption claim under the New Mexico Religious Freedom Restoration Act: "To the extent that Elane Photography's arguments in this proceeding sought to raise questions ... as to an automatic preemption of the NMHRA by ... the New Mexico Religious Freedom Restoration Act, those questions are not before the New Mexico Human Rights Commission for determination in this proceeding and, accordingly, are not addressed here."

Is this right? Here's what the New Mexico RFRA says:

[§ 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 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 ....

The New Mexico Human Rights Commission is a government agency, and the New Mexico RFRA was indeed raised to it in Elane's brief. Is the theory that § 28-22-4 is seen as exclusive, so that it can only be raised in judicial proceedings and not administrative proceedings? That would seem odd: One would think that given that all government agencies are bound by the state RFRA, even purely executive officials have an obligation to conform their conduct to it, and adjudicatory administrative officials would as well. The Commission doesn't explain its reasoning on this point.

I should note that the California Constitution explicitly bars administrative agency "To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional [or preempted by federal law] unless an appellate court has made a determination that such statute is unconstitutional [or preempted]." But that's a California-specific rule, and even it doesn't bar California agencies from considering the extent to which one state statute carves out a defense to or exceptions from another state statute.

Jiffy:
I'd be interested in knowing what principles Eugene thinks determine when a service is sufficiently expressive to be exempted from antidiscrimination laws. Most services have some expressive element--houspainting, interior decorating, catering, hair styling, architechture, etc. Nevertheless, I expect that a claim by a hair stylist that he or she could refuse service on the basis of race because of the expressive nature of that service wouldn't go very far. How do we draw a principled line between that case and, say, the case of the freelance writer, and on which side of that line does the wedding photographer fall? It seems to me that whether the service provider would normally be understood to be sanctioning or agreeing with the customer or his/her beliefs by providing the service may be a factor, but I'm sure there are others. I don't think it's an easy question.
4.15.2008 3:49pm
NI:
I have a more basic question: Why should any law have a religious exemption? I'm an atheist, which means my conscience gets no consideration at all. No matter how repulsive I may consider a law to be, I don't get a conscience exemption because my beliefs aren't based on superstition.

There's another problem with religious exemptions: Virtually any law is objectionable on religious grounds by someone. Leviticus says it's OK to kill homosexuals, for example (and before anyone disagrees with my reading of Leviticus, Fred Phelps reads it that way so HE has a religious exemption claim to laws against murder even if you don't.) If a photographer who offers a public service can refuse service to gays, can she almost molest children based on numerous Old Testament examples? Can she beat her own children since Proverbs says to? Hell, next time I'm stopped for speeding maybe I'll show the nice officer the passage where Jesus said, "That which thou doest, do quickly."
4.15.2008 4:05pm
NI:
"almost molest children" should be "also molest children". Sorry.
4.15.2008 4:06pm
VR:
Wouldn't the Supremacy Clause of the U.S. Constitution,

This Constitution, . . . shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding
.


(emphasis added)
mandate that any tribunal must consider constitutional implications of its rulings? How does the California provision survive that? Aren't these "commissions" and "examiners" the same as "judges" for this purpose?

Has this ever been litigated? I always assumed that the point of the Supremacy clause was to deal with this sort of thing.
4.15.2008 4:07pm
EIDE_Interface (mail):
Jiffy:

This is all bs. Either you believe in freedom of association(fundamental human right to me), or you don't. At least admit you're a statist.
4.15.2008 4:07pm
Prufrock765 (mail):
EIDE:
Weird that I read Jiffy to be making the opposite point--the "expressive behavior" exemption is a non-starter...a completely ad hoc response. I agree with this proposition.
Now the question is how to analyze the case.
I don't think I am a statist when I conclude that this is a Title VII proponent's worst nightmare. There is no principled way to leave poor benighted Elaine alone (which is what most people probably want to do) without calling into question the whole concept of public accomodation discrimination.
As I said in another thread: somewhere Ollie is laughing his ass off.
4.15.2008 4:28pm
c.gray (mail):

This is all bs. Either you believe in freedom of association(fundamental human right to me), or you don't. At least admit you're a statist.


Either you believe that one has a "fundamental human right" to engage in economic discrimination against unpopular minorities or you do not.
4.15.2008 6:09pm
Randy R. (mail):
I'm glad that the religious exemption isn't considered here, basically for the same reasons that NI explains. I'm fed up with people hiding behind religion to justify breaking laws that apply to everyone else. More so, I'm fed up with people using religion as an excuse to treat people badly that they don't like. and I'm *especially* fed up with courts that rule that if you are an established religion you get more deference on these matters than if you are labeled a 'cult'.

The only difference between a religion and a cult is the size of it's membership.
4.15.2008 6:24pm
Hans Bader (mail):
Either you believe "human rights" commissions have to obey state and federal statutes and constitutional-rights provisions, or -- like the overreaching New Mexico Human Rights Commission -- you don't.

The New Mexico commission flatly ignored the language of the statute and controlling precedents in equating refusal to promote a civil-commitment ceremony with discrimination against CUSTOMERS based on sexual orientation.

The law prohibits discrimination based on a customer's sexual orientation, not against particular messages or ceremonies.

As I have explained at length at Openmarket.org, the Commission's ruling was an unreasonable interpretation of the statute, and a violation of the First Amendment and the New Mexico Religious Freedom Restoration Act.
4.15.2008 6:28pm
Keith in Dallas (mail):
Either you believe that one has a "fundamental human right" to engage in economic discrimination against unpopular minorities or you do not.


It's pretty hard to argue that, in a free society, you don't have that right (even accepting it in your loaded terminology), is it not?
4.15.2008 6:35pm
DB Schwimmer:
I'm *especially* fed up with courts that rule that if you are an established religion you get more deference on these matters than if you are labeled a 'cult'.

Examples? My own, admittedly ad hoc, seat-o'the-pants impression has been exactly the opposite. Must be from my being in the Ninth Circuit.

I think, however, that the religious angle in this case is a red herring. If the state had even a substantial interest in guaranteeing that fake non-weddings are memorialized with the same degree of skill as real weddings with legal effect, this would be a closer case. But so far, no one has identified any state interest that would justify imposing a penalty on a photographer, florist or cake supplier who just says, "I do weddings. That is not a wedding."
4.15.2008 6:46pm
c.gray (mail):

It's pretty hard to argue that, in a free society, you don't have that right (even accepting it in your loaded terminology), is it not?


Only for those who'd characterize the Jim Crow era as representative of a "free society".
4.15.2008 6:48pm
Ed Weston:
So,... now that I've read the opinion, I'm shocked at what seems to be utter cluelessness about Constitutional priorities and about causal elements of a discrimination claim. The order finds that the Respondent refused to provide service "because of" the complainant's sexual orientation. If that is true, then it must also be true that the Respondent would have agreed to photograph a same-sex commitment ceremony if the two women involved were "straight." Yet each and every time that the event and the reasoning of the Respondent are described, it's explicitly stated that the photographer would not photograph a same-sex ceremony, not that she would not provide service to gay customers. The Commission just acts utterly oblivious to the difference.

But what comes next? I don't know what New Mexico's anti-discrimination statutes say, but it's fairly common for the "public accommodation" provisions of such statutes to prohibit any act or omission in the conduct of the business that tends to make the member of a protected class feel unwelcome. Does the Commission now dicate that Elane Photography must include a few same-sex couples in the images on its website? After all, a website that shows only heterosexual weddings conveys an exclusionary message, doesn't it? And evidently, as the Commission sees it, there is no constitutional impediment to its dictating the message to be sent.
4.15.2008 7:22pm
BGates:
c.gray, discrimination by the state is not the same as discrimination by an individual. I think it's tragic that the response to the Jim Crow laws was to impose mild government control over everyone rather than just remove the severe government control over African Americans.
4.15.2008 7:23pm
john w (mail):
Isn't there any principled way to draw a line and make laws like this applicable to the giant corporations like WalMart, CitiBank, Chrysler, etc., but not to mom-and-pop businesses?
4.15.2008 7:27pm
HLSbertarian (mail):
<blockquote>
Isn't there any principled way to draw a line and make laws like this applicable to the giant corporations like WalMart, CitiBank, Chrysler, etc., but not to mom-and-pop businesses?
</blockquote>

Is there any principled reason to do so?
4.15.2008 7:34pm
Greg S. (mail):
What about the thirteenth amendment? Basically what they want to do is to force someone to provide a service to another person. Sounds like involuntarily servitude to me.
4.15.2008 8:46pm
jccamp:
If I read the case correctly, the photographer refused to take same-sex wedding photos. I saw nothing that meant she wouldn't be perfectly fine shooting photos of the gay couple, singularly or together. Her objection was apparently the "wedding" aspect. Assuming that to be true (and I may be incorrect) shouldn't a photographer have the right to refuse services if something of the setting, aside from the protected life-style (is that the correct term?) of the customers, is the basis for the objection. For instance, if any couple, gay or not, requested unclothed photos of themselves, would the photographer have the right to refuse the hetero couple but not the protected class couple? Both? Neither?
Unless the photographer refused all service to a gay couple, based solely on their protected life-style, shouldn't the photographer have the right unto herself, to pick and chose what settings or posing she may find objectionable?
Also, does New Mexico recognize same-sex marriage? If so, then maybe the photographer's actions are not legitimate in refusing to provide service to an act sanctioned by the state. Does the state's position re: same sex marriage matter?
I dunno. Maybe we should submit the question to the newly enlarged Harvard Law staff.
4.15.2008 9:09pm
c.gray (mail):

c.gray, discrimination by the state is not the same as discrimination by an individual. I think it's tragic that the response to the Jim Crow laws was to impose mild government control over everyone rather than just remove the severe government control over African Americans.


In the economic sphere, Jim Crow discrimination was _not_ enforced primarily by statute. It was the enforced by common custom and the threat of economic and social reprisal.

For example, there was no law prohibiting Woolworths from hiring black women as cashiers. Woolworths' management followed that policy at first because they were bigoted themselves, and later for fear of a boycott by their more emphatically racist customers.

"Mild government control" over business was judged by a majority of citizens to be the only reasonable measure likely to end this state of affairs. And it was viewed as perfectly reasonable because the government, even in free societies, has ALWAYS retained the authority to exert "mild government control" over commercial enterprises.
4.15.2008 9:21pm
Randy R. (mail):
What I find disturbing about this is what if a gay photographer declines to photograph a hetero but Christian fundamentalist wedding? According to this ruling, he would have to. But I would hold that he has a right to choose his clients.

Lawyers can choose clients -- you are not obligated to represent every person who walks in the door and demands representation. Maybe you don't think they have a good case; maybe the guy is a real hell to deal with; maybe you just don't like to deal with his issues. As long as you aren't saying that you won't represent a black person, you are nonetheless free to represent whomever you like.

"Also, does New Mexico recognize same-sex marriage? If so, then maybe the photographer's actions are not legitimate in refusing to provide service to an act sanctioned by the state." I disagree -- for the same reason as my hypo above.
4.15.2008 9:28pm
Dave N (mail):
I'm glad that the religious exemption isn't considered here, basically for the same reasons that NI explains. I'm fed up with people hiding behind religion to justify breaking laws that apply to everyone else.
What I find disturbing about this is what if a gay photographer declines to photograph a hetero but Christian fundamentalist wedding? According to this ruling, he would have to. But I would hold that he has a right to choose his clients.
Will the real Randy R. please stand up?
4.15.2008 11:33pm
Dave N (mail):
Oops, my post was incoherent. Let's try it again.

Compare this post:
I'm glad that the religious exemption isn't considered here, basically for the same reasons that NI explains. I'm fed up with people hiding behind religion to justify breaking laws that apply to everyone else.
With this one from the same person:
What I find disturbing about this is what if a gay photographer declines to photograph a hetero but Christian fundamentalist wedding? According to this ruling, he would have to. But I would hold that he has a right to choose his clients.
Will the real Randy R. please stand up?
4.15.2008 11:36pm
Hoosier:
Randy--The only difference between a religion and a cult is the size of it's membership.

Nah.

This is a common statement. But not correct. For one, a cult requires separation from the broader society, even in matters such as friendships and relationships with non-cultist family members.

Is this a fair description of, say, Methodists?
4.16.2008 1:13am
Lonetown (mail):
"I have a more basic question: Why should any law have a religious exemption?"

I have a better question. How about free association? Whats wrong with me or anyone else making up their own mind?

If lesbians want a photographer, find one sensitive to your own fetishes and proclivities. Its bizarre to have the state enforcing sexual peccidillos.

I find it sufficient to keep the state out of my business.
4.16.2008 8:39am
Nadine Strossen (www):
I don't want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn't necessarily mean that it is a fundamental civil liberty.
4.16.2008 9:29am
M. Simon (mail) (www):
The photographer should have gotten a very healthy up front fee and then created some really ugly photos.

Then all legal obligations are satisfied. After all art like pornography is in the eye of the beholder.
4.16.2008 10:38am
Orson Buggeigh:

Compare this post:

I'm glad that the religious exemption isn't considered here, basically for the same reasons that NI explains. I'm fed up with people hiding behind religion to justify breaking laws that apply to everyone else.

With this one from the same person:

What I find disturbing about this is what if a gay photographer declines to photograph a hetero but Christian fundamentalist wedding? According to this ruling, he would have to. But I would hold that he has a right to choose his clients.

Will the real Randy R. please stand up?


Thank you. That quote from Randy R. nicely demonstrates the accuracy of Clayton Cramer's post, "Gay rights. Liberty. Choose one." I take Randy's remarks to mean that he thinks homosexuals should be able to force Christians like Elaine to take photos at homosexual commitment ceremonies, but homosexual photographers should not be forced to take photos of events they find distasteful, like weddings. That looks a lot like 'free speech and free association for me, but not for thee.' Or, perhaps, like a state religion in New Mexico. Secular humanism. Nice call Mr. Cramer.
4.16.2008 10:52am
Rob Crawford (mail) (www):
No, M.Simon. That would have (justifiably) left her open to a lawsuit for failure to properly uphold her end of the contract. What she should have done is simply quote an exorbitant price up front.
4.16.2008 10:56am
Bryan C (mail):
"What she should have done is simply quote an exorbitant price up front."

I have doubts that even that would have worked. Most likely they would have demanded a review of her pricing practices and a determined that she was targeting specific clients in a discriminatory manner. And things would have proceeded pretty much the same. As with the situation in Canada, Human Rights Commissions seem to be very good at inventing whatever authority and evidence they require to ensure their correct outcome.
4.16.2008 12:05pm
Hoosier:
"Or, perhaps, like a state religion in New Mexico."

Simeone ought to appeal this ruling!

Does NM have something like a state 'Human Rights Commission' to review this decision?
4.16.2008 12:09pm
Ryan Waxx (mail):

Either you believe that one has a "fundamental human right" to engage in economic discrimination against unpopular minorities or you do not.


Hmm, freedom to make choices includes the freedom to make BAD choices... who would EVER have predicted that?

You know what? Jim Crow era folks used their right to vote to elect racists. Since NuFreedom only extends to those who make the RIGHT choices, clearly we need to regulate the right to vote more closely.
4.16.2008 12:55pm
buzz (mail):
If the law is changed to allow gay marriages, would this mean that in New Mexico a church could be in this same situation if that church refused to perform the ceremony?
4.16.2008 1:34pm
c.gray (mail):

Hmm, freedom to make choices includes the freedom to make BAD choices... who would EVER have predicted that?

You know what? Jim Crow era folks used their right to vote to elect racists.


The difference being that a broad "right to vote" is actually found in the text of the Constitution's 15th amendment, while a broad constitutional right to "freedom of association" that encompasses any and all of ones economic dealings cannot be found anywhere in the document's text, and has never been recognized by the courts.
4.16.2008 2:46pm
EIDE_Interface (mail):
So basically they're violating her 13th amendment rights.
4.16.2008 4:04pm
EIDE_Interface (mail):
c.gray - you are a statist.
4.16.2008 4:06pm
The Ace (mail):
The New Mexico Human Rights Commission is a government agency

And it should not be.

But of course it's a good little fascist organization...
4.16.2008 4:11pm
Hubestur:
Of course, the photographer could've accepted the gig, then spent the entire wedding taking shots with the lens cap on, out of focus or with the subjects out of the frame.

Now THAT would have been funny!
4.16.2008 4:59pm
c.gray (mail):

c.gray - you are a statist.


I'm just realistic about both the current state of the law on this subject, and the actual history of the law. It doesn't mean I particularly care for this state of affairs.

Personally, I hate these kinds of cases. If it were up to me, the photographer could have said "I think you people are icky! Get out of my establishment!" and that would pretty much have been the end of the matter barring some tangible evidence of actual financial harm suffered by the offended couple. My personal opinion is that there shouldn't be a cause of action for hurt feelings.

But I'm not the legislature of the State of New Mexico. They had other ideas. And unlike living constitution adherents or natural law enthusiasts, I don't confuse my personal opinions about what would be wise with the state of constitutional law.
4.16.2008 5:30pm
deek:
What is the government going to FORCE someone to work?
4.16.2008 6:03pm
jccamp:
Hi Nadine,

When you say "Conversely, I guess the fact that something is mentioned in the Constitution doesn't necessarily mean that it is a fundamental civil liberty.", could you expand on what Constitutional phrase or section you're referring to, perhaps which fundamental civil liberty was at risk in this case? I'm presuming your POV here to be generally in agreement with sanctioning the photographer, or at least with classifying her actions as discrimination. If I'm being dense and misunderstood your post, could you run the entire thing by me again? I do get the ACLU's position in the first sentence.

Thanks. BTW, I was very impressed, seeing your name pop up here.
4.16.2008 6:28pm
yankev (mail):

If the law is changed to allow gay marriages, would this mean that in New Mexico a church could be in this same situation if that church refused to perform the ceremony?

That might be too much for even NM to enforce. But that won't necessarily stop a zealous claimant or prosecutor from trying.

Here's a more likely scenario -- Church, synagogue or what have you makes its social hall available for a fee to members and a higher fee to non-members for celebrating weddings, engagements, or other events. Tenets of the religion do not recognize a "marriage" between those of the same sex. House of worship refuses to make the hall available to a same sex commitment ceremony. Violation?
4.16.2008 6:35pm