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Photographers Denied the Freedom To Choose What They Photograph:

Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane's work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock's same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney's fees and costs.

I haven't seen any written statement of reasons, but the order must implicitly rest on two interpretations of state law: (1) This sort of photography company constitutes a "public accommodation," defined by state law "any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private." (2) A refusal to photograph a same-sex commitment ceremony constitutes sexual orientation discrimination, which New Mexico law forbids. These may or may not be sensible interpretations of the statutory text. But the result seems to me to likely violate the First Amendment (though there's no precedent precisely on point).

Photography is an art, and Huguenin is an artist. It may not be high art, but it embodies a wide range of artistic choices (especially since she says she takes a "photojournalist" approach, rather than just doing normal staged photos). And though she sells the art to its subjects, that is of course part of a long and continuing tradition in the arts, including painting and sculpture, as well as photography. Certainly many of the works protected by the First Amendment (books, newspapers, movies, and the like) were created for money and distributed for money.

Yet the New Mexico government is now telling Huguenin that she must create art works that she does not choose to create. There's no First Amendment case squarely on point, but this does seem pretty close to the cases in which the Court held that the government may not compel people to express views that they do not endorse (the flag salute case, West Va. Bd. of Ed. v. Barnette, and the license plate slogan case, Wooley v. Maynard).

For whatever it's worth, Huguenin also says she exercises political judgment in deciding what to photograph (for instance, she reports that she refuses to make photographs that put horror films in a positive light, or to take photographs that positively portray abortion, pornography, or nudity, as well as same-sex marriage). I don't think that sort of political selectivity should be required for photographers to be protected as artists, but it seems to me to highlight the scope of the artist's judgment, and the artist's constitutional right to exercise such judgment (just as a bookstore has the right to choose which books to stock).

Consider also a hypothetical analogy: Say that instead of Willock's trying to hire a photographer, Willock was trying to hire a solo freelance writer (or a writer in a two-person freelancing partnership) to write materials for Willock's (hypothetical) same-sex marriage planning company. The writer refused on the grounds that she didn't want to promote such a company.

I take it the law would cover the writer as much as it would cover the photographer (why wouldn't it?). Yet wouldn't requiring writers — even writers of press releases and Web sites — to write words that express views they reject violate the First Amendment? And if not, what's the difference between that and requiring photographers to take photographs that implicitly but strongly express views they reject? (Wedding photographs, of course, express views celebrating the event being photographed.)

More on the religious freedom issues and perhaps some other matters shortly.

127 Comments
Religious Accommodations and the Elane Photography Case:

In my earlier post about the photographer who refused to photograph a same-sex commitment ceremony -- and was punished by the government as a result -- I discussed the First Amendment objections to the New Mexico Human Rights Commission's decision. But the decision may also violate the photographer's religious freedom rights under the New Mexico Religious Freedom Restoration Act. The act, which is similar to the legal rules in place in about half the states and as to federal law, provides that

A government agency shall not restrict a person's free exercise of religion [i.e., an act or a refusal to act that is substantially motivated by religious belief] 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.

Elaine Huguenin's refusal to photograph a same-sex commitment ceremony does seem to be substantially motivated by her religious belief. She is therefore entitled to an exemption unless applying the law to her passes "strict scrutiny" -- "is the least restrictive means of furthering [and is essential to furthering a] compelling governmental interest."

What government interests might justify denying Huguenin the exemption? If the interest is in making sure that people have roughly equal access to services, regardless of their sexual orientation, then I doubt that requiring Huguenin to photograph the ceremony is essential to serving that interest. There surely are lots of other photographers in Albquerque, and I have no reason to think that all or even most of them share Huguenin's religious objections; if Huguenin is given an exemption, same-sex couples will still have lots of photography services available to them. And given that a wedding photographer, to do a great job, likely needs to feel some empathy with the ceremony, forcing the Huguenins of the world into photographing a ceremony that they disapprove of will likely not give same-sex couples very good service.

But if the government's view is that people have a moral right not to be discriminated against -- entirely independently of any practical burden that such discrimination imposes on them -- based on their sexual orientation, then it would appear that every instance of sexual orientation discrimination would violate that right. And if the government has a compelling interest in vindicating that right, then granting an exemption even to a few religious objectors would jeopardize that interest, and denying the objection would be essential to maximally furthering the interest. On the other hand, can New Mexico assert such a compelling interest when it itself discriminates against same-sex couples in its marriage laws?

So the religious freedom issue would turn, I take it, on what version of the government interest New Mexico courts ultimately recognize -- the first version, focusing on practical access to services, which should lead to granting an exemption, or the second, focusing on a supposed moral right not to be discriminated against, which should lead to denying an exemption (if the government is seen as having a compelling interest in protecting that right). Incidentally, in a similar area, marital status discrimination in housing against unmarried couples, the several state courts applying state religious accommodation regimes have split, based precisely on this issue of which sort of interest is involved.

22 Comments
First Amendment and Photography/Writing/Publishing/Book Distribution for Money:

A commenter writes, about the photographer case,

This case isn't about art it's about commerce. If she ran a lemonade stand and refused to sell same sex couples or interracial couples, it would be clearly discriminatory.

The case is about art that is sold in commerce -- just as newspapers are sold in commerce, paintings are sold in commerce (whether to the person who commissioned them or to a museum), books are sold in commerce, and the like. And because photography is a medium of communication and of expression of ideas (unlike lemonade sales), the First Amendment is implicated (and, in my view, violated). Just as a bookstore may choose to sell only black-authored books, or refuse to sell Christian-themed books, so it seems to me that a photographer should

This also responds, I think, to comments such as "If she holds herself out as a business offering to perform a service, then it would seem that she cannot refuse that service to anyone falling into a protected class." Bookstores also offer to perform services, both to buyers and to publishers and authors; but they may choose what books to stock. Yet it doesn't follow that they may be denied their freedom to choose which speech to distribute.

Likewise, let me repeat the hypothetical I posed in my earlier post, which I think people didn't much respond to. Say you're a freelance writer, who holds himself out as a business offering to perform a service. Someone tries to hire you to write materials -- press releases, Web site materials, and the like -- for his same-sex marriage planning company, or his Scientology book distribution company, or whatever else.

May the government force you, on pain of damages liability, to write those materials, even if you would prefer not to because of the sexual orientation, religion, or whatever else to which the materials would be related? Or do you have a First Amendment right to choose which words you write and which you decline to write? If you do have such a right, why shouldn't Elaine Huguenin have the same right as a photographer?

118 Comments
Legal Requirements That You Write Things or Create Photographs:

Let me mention again the hypothetical I posed in my earlier post, and ask for the reaction of those who think the New Mexico Human Rights Commission's decision is constitutional. Maybe I'm mistaken, but my sense is that there weren't many responses to it, and I'd love to see more, again especially from people who think the Commission's decision doesn't violate the First Amendment.

Say you're a freelance writer, who holds himself out as a business offering to perform a service. Someone tries to hire you to write materials -- press releases, Web site materials, and the like -- for his same-sex marriage planning company, or his Scientology book distribution company, or whatever else.

May the government force you, on pain of damages liability, to write those materials, even if you would prefer not to because of the sexual orientation, religion, or whatever else to which the materials would be related? Or do you have a First Amendment right to choose which words you write and which you decline to write? If you do have such a right, why shouldn't Elaine Huguenin have the same right as a photographer?

One response I saw a few people make is that wedding photography isn't really artistic, the way that creative photography is. Well, I suppose that some will say that writing press releases or Web pages on commission isn't really literary or political, the way that writing fiction or opinion columns is; that's why I chose this particular example. Yet I take it that even being compelled to write bland, relatively generic copy about the virtues of some same-sex marriage planning company would be seen as a speech compulsion. Why wouldn't being compelled to take bland, relatively generic photographs likewise qualify (especially since taking and selecting good photos does involve at least some artistic decisionmaking)?

Another response was that there's no First Amendment issue with imposing nondiscrimination obligations on lemonade sellers, chefs, florists, and the like. But I take it we would see such an issue with imposing such obligations on writers, no? Why isn't a photographer far closer to a writer for First Amendment purposes, given that both photography and text are traditionally recognized as First-Amendment-protected media (because of their capacity to convey facts and ideas)?

One response pointed out that lawyers, who speak for a living, are required not to discriminate in choice of clients. But the First Amendment rights of lawyers practicing law are considerably constrained, see, e.g., Gentile v. State Bar of Nevada, and especially when it comes to choice of clients; for instance, courts generally still have the power to appoint lawyers to represent indigent criminal defendants, even if the lawyer objects on ideological grounds. Whatever the proper rule for lawyers should ultimately be, I don't think that the constitutionality of certain speech compulsions for lawyers -- officers of the court who have been therefore treated as something distantly kin to government employees -- tells us much about similar speech compulsions imposed on photographers, writers, painters, musicians, and others.

So tell me, please, if you think the Commission's decision is constitutional: Could the freelance writer be compelled to write copy for the same-sex marriage planning company, or the Scientology book distribution company? If the answer is "no," then what exactly is the difference between the writer and the photographer?

68 Comments
Religious Exemptions and the Elane Photography Case:

I'm wondering whether the religious exemption question might be getting lost in our discussion of the compelled speech issue. The compelled speech issue is a First Amendment question, and thus arises everywhere, and for all photographers, so that is more important. But the religious exemption issue remains significant, since about half the jurisdictions have a general religious exemption rule (by statute or by interpretation of the state constitutional provision).

Recall that the New Mexico Religious Freedom Restoration Act provides that:

A government agency shall not restrict a person's free exercise of religion [i.e., an act or a refusal to act that is substantially motivated by religious belief] 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.

Assume, as seems to be the case, that Elaine Huguenin's refusal to photograph a same-sex commitment ceremony does seem to be substantially motivated by her religious belief. Is applying the antidiscrimination law to Huegenin really "essential to further a compelling governmental interest," especially given that there are doubtless many other Albuquerque photographers who would have no religious objections to photographing same-sex ceremonies? Will it even materially advance whatever compelling governmental interest is present, given that forcing photographers to photograph events that they find repugnant is not likely to produce the warm, affectionate photographs that couples want?

I discussed this more here, but I wanted to ask what you folks -- and especially those who defend the New Mexico Human Rights Commission decision -- think about this.

20 Comments
The ACLU and the Elane Photography Case:

Stop the ACLU writes,

Where was the ACLU on this one you may ask? Word has it that an ACLU-affiliated attorney represented the "offended" lesbians. "Foremost defender of the United States Constitution and the Bill of Rights" .... yeah right. More on that later.

From what I know of this case, I see no reason to fault the ACLU for it. Elane Photography's lawyer tells me that Julie Sakura of Albuquerque was the lawyer on the other side; she is not an ACLU staffer, nor, to my knowledge, has the ACLU taken a stand on this, or had Sakura characterize herself as an ACLU representative. Sakura has worked with the ACLU as a cooperating attorney, but my sense is that this just means she sometimes takes cases for them. It certainly doesn't mean that all her work is ACLU-sanctioned.

Nor do I see any reason to fault the ACLU for not representing Elane Photography here. Elane Photography has eminently capable counsel in the form of the Alliance Defense Fund; I don't know that Elane Photography even sought the ACLU's help. And while it might have been possible for the ACLU to file a friend-of-the-commission brief (though I'm not sure the commission's rules allow it), it's certainly sensible for an organization with limited resources to avoid spending effort on amicus work at such a stage, especially given that competent counsel are on the case.

I'll be happy to condemn the ACLU for being on the wrong side here if they actually end up on the wrong side. But so far I see no evidence of this -- please correct me if I'm mistaken.

55 Comments
Right To Choose Which Photographs You Create:

A commenter asks, "how many people would (dare to) take the photographer's side here if she refused to photograph a mixed-race couple?" I should hope that virtually all of those who support Elaine Huguenin's Free Speech Clause rights would support that hypothetical photographer's constitutional rights, too. I certainly would, just as I support the constitutional rights of many people whose views I condemn.

The premise of the argument I've made is that the government may not force you to create speech that you don't want to create, whether that's an article, a press release, a photograph, or a painting. You can be a racist, anti-same-sex-marriage, a devout Catholic who doesn't want to create works celebrating a marriage of divorced people, an orthodox Jew who doesn't want to create works celebrating a marriage of Jews and non-Jews, or whatever else. It doesn't matter.

The desire to prevent race discrimination should no more dissolve your right to be free from being compelled to speak (here, to create an artistic work) than it should dissolve the right to express bigoted views, to choose members of a racist political organization, or to select ministers (or church members) based on any criteria a church pleases. And if that means that writers and photographers can't be legally barred from choosing their subjects based on race, that's just an implication of the basic First Amendment principle of the speaker's right to choose what to say.

There should be nothing particularly daring about this position.

187 Comments
The Breadth of the New Mexico Human Rights Commission's Rationale:

The New Mexico Human Rights Commission has just issued its opinion concluding that Elane Photography violated New Mexico law by refusing to photograph a same-sex commitment ceremony; and the opinion clarifies a little about the Commission's rationale. (Recall that the order was originally released last week, but the opinion was apparently just delivered to the parties yesterday.)

For instance, the Commission's rationale isn't limited to wedding photographers, who some people argued (wrongly, in my view) aren't really "creative" enough to get First Amendment protection. Rather, it would apply to freelance writers who refuse to write press releases or Web copy for religions they disapprove of. It would apply to professional singers who routinely hire out for a wide range of events (weddings, bar mitzvahs, and so on) but who don't want to sing at events affiliated with some religion, or for that matter at same-sex commitment ceremonies. It would apply to professional portrait painters who accept a broad range of commissions but prefer, whether for artistic or political reasons, to paint only men or only women, or not to paint people of whose religious activities or sexual orientations they disapprove.

After all, here's the entirety of the Commission's discussion of the First Amendment issue:

The United States Supreme Court has considered the provisions of state antidiscrimination laws similar to the provisions of NMHRA and concluded that: "Provisions like these are well within the States usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338, 2346 (1995). The Court has explained that "acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent." Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 3255 (1984).

That's a judgment that the First Amendment just categorically doesn't apply to these sorts of antidiscrimination provisions, not a judgment specific to wedding photographers.

Of course, the Commission's rationale also seems legally wrong. It's true that Hurley said that antidiscrimination provisions do not as a general matter violate the First Amendment -- but then it went on to hold that such a provision did violate the First Amendment when applied to a parade's exclusion of a float that was identified as connected to a gay/lesbian/bisexual group. Likewise, Boy Scouts of America v. Dale later held (distinguishing Roberts) that such a provision did violate the First Amendment when applied to the Boy Scouts' exclusion of a gay scoutmaster.

So the Court has made clear that the First Amendment may indeed trump antidiscrimination law when applying the antidiscrimination law would interfere with a group's speech or its expressive association. Elaine Huguenin argued applying the antidiscrimination law here would interfere with her freedom from compelled speech. Yet the Commission simply quoted the general statements from Hurley and Roberts without explaining why the well-recognized First Amendment exceptions to those general statements don't apply to Huguenin's claim.

Pretty poor opinion-writing, it seems to me. But in any event, it shows (as I argued above) that the Commission seems to see rights to be free of compelled speech as being irrelevant to its application of public accommodation discrimination law -- which is why I say that the Commission's reasoning would apply equally to the freelance writers, singers, painters, and more.

50 Comments
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.

41 Comments