The Volokh Conspiracy

I’m pleased to report that I filed a friend-of-the-court brief, on behalf of the Cato Institute, Dale Carpenter, and myself, arguing that wedding photographers (and other speakers) have a First Amendment right to choose what expression they create, including by choosing not to photograph same-sex commitment ceremonies. All the signers of the brief support same-sex marriage rights; our objection is not to same-sex marriages, but to compelling photographers and other speakers works that they don’t want to create.

You can see a PDF copy of the brief at the Cato site, and also Cato’s blog post on the subject. I’ve also included the text of the brief below:
 
[Table of Contents:]
I. Introduction: This Case Is Largely Controlled by Wooley v. Maynard, 430 U.S. 705 (1977)
II. Under the First Amendment, Speech Compulsions Are Generally Treated the Same as Speech Restrictions
III. Wooley Extends to Photography, Including Photography Created for Money
IV. Wooley Extends to Compelled Creation of Speech as Well as Compelled Distribution of Speech
V. The Court of Appeals’ Analysis Is Inconsistent with Wooley
VI. First Amendment Protection Against Compelled Speech Extends Only to Refusals to Create First-Amendment-Protected Expression

I. Introduction: This Case Is Largely Controlled by Wooley v. Maynard, 430 U.S. 705 (1977)

This case is largely controlled by a United States Supreme Court precedent that the court of appeals never mentioned: Wooley v. Maynard, 430 U.S. 705 (1977). Wooley, the New Hampshire license plate case that we discuss in detail below, makes clear that speech compulsions are generally as unconstitutional as speech restrictions. Wooley’s logic applies to photographs and other displays, and not just verbal expression. And that logic applies also to compulsions to create photographs and other works (including when the creation is done for money), not just to compulsions to display such works. Much of the reasoning used by the court of appeals is directly contrary to the reasoning of Wooley.

Indeed, the court of appeals’ reasoning would produce startling results. Consider, for instance, a freelance writer who writes press releases for various groups, including religious groups, but refuses to write a press release for a religious organization or event with which he disagrees. Under the court of appeals’ theory, such a refusal would violate the law, being a form of discrimination based on religion, much as Elaine Huguenin’s refusal to photograph an event with which she disagreed was treated as a violation of the law. Yet a writer must have the First Amendment right to choose which speech he creates, notwithstanding any state law to the contrary. And the same principle, as we argue below, applies to photographers as well.

Yet while Wooley provides important constitutional protection, it also offers an important limiting principle to that protection: Though photographers, writers, singers, actors, painters, and others who create First Amendment-protected speech must have the right to decide which commissions to take and which to reject, this right does not apply to others who do not engage in First Amendment-protected speech. This Court can rule in favor of Elane Photography on First Amendment freedom of expression grounds, and such a ruling would not block the enforcement of antidiscrimination law when it comes to discriminatory denials of service by caterers, hotels that rent out space for weddings, limousine service operators, and the like.

Wooley secures an important constitutional right to which speakers and those who create speech are entitled — whether they are religious or secular, liberal or conservative, pro-gay-rights or anti-gay-rights. The decision below denies New Mexicans that right.

This case can therefore be resolved entirely based on the First Amendment freedom from compelled speech. Amici express no opinion on the proper interpretation of New Mexico antidiscrimination statutes, or on petitioner’s Free Exercise Clause and New Mexico RFRA arguments. [Standard of review omitted. -EV]

Continue reading ‘Amicus Brief in Elane Photography v. Willock (the New Mexico Wedding Photography Case)’ »

Or in soybean-based ink.  George Will’s column today discusses the Elane Photography case that Eugene has been blogging (and participating in as amicus curiae). The case involves a First Amendment Free Exercise Clause/New Mexico Religious Freedom Restoration Act defense to penalties the New Mexico Human Rights Commission assessed against Christian photographers who refused for religious reasons to photograph a same-sex commitment ceremony. Will writes:

Eugene Volokh of the UCLA School of Law thinks that [photographer Elaine] Huguenin can also make a “compelled speech argument”: She cannot be coerced into creating expressive works, such as photographs, that express something she is uncomfortable expressing. Courts have repeatedly held that freedom of speech and the freedom not to speak are “complementary components of the broader concept of ‘individual freedom of mind.’ ”

Now here’s my favorite part, for purely selfish reasons. Will continues “New Mexico’s Supreme Court is going to sort all this out, which has been thoroughly reported and discused on the invaluable blog the Volokh Conspiracy . . . .”

I’m planning on filing a pro bono amicus brief before the New Mexico Supreme Court, in support of Elane Photography in the Elane Photography v. Willock wedding photographer case. If you are licensed to practice in New Mexico, and might be inclined to help by acting as local counsel, please e-mail me at volokh at law.ucla.edu. Thanks!

UPDATE: Many thanks to the people who responded, and in particular to Michael J. Thomas, who responded first and with whom I look forward to working.

I’m pleased to say that the New Mexico Supreme Court will hear the Willock v. Elane Photography case, which I’ve blogged about extensively. The court will now decide whether

(1) holding a wedding photographer liable for refusing to photograph a same-sex commitment ceremony violates New Mexico’s statutory ban on sexual orientation discrimination, and

(2) even if it does violate the statute, whether the photographer is nonetheless immune from punishment because

(a) requiring her to create photographs that she doesn’t want to create is a speech compulsion, in violation of the Free Speech Clause,

(b) she is entitled to an exemption under the federal or state Free Exercise Clauses, and

(c) she is entitled to an exemption under New Mexico’s Religious Freedom Restoration Act.

For more on all these theories, see this thread.

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.

So the New Mexico Court of Appeals held last week in the long-pending Elane Photography v. Willock (N.M. Ct. App. May 31, 2012). The court began by holding that the state law that bans sexual orientation discrimination in places of public accommodation applies to professional wedding photographers’ decisions not to photograph same-sex commitment ceremonies: Such photography businesses are “places of public accommodation” under the language of the law, and the discrimination between legally recognized opposite-sex marriages (New Mexico only recognizes such marriages) and same-sex commitment ceremonies constitutes discrimination based on sexual orientation.

The court then rejected the argument of the photographer (Elane Huguenin, the co-owner and principal photographer for Elane Photography) that penalizing her for not photographing such same-sex ceremonies was an unconstitutional “speech compulsion.” The First Amendment, Huguenin argued, has been repeatedly held to protect the right to speak as well as the right not to speak; and the right not to speak includes the right not to create artistic expression that one doesn’t want to create. And just as the First Amendment protects speech that is said for money (indeed, most books, newspapers, movies, and the like are created and distributed commercially), so it protects the right not to create certain artistic works for money, even if one is in that line of business. But the court disagreed (some paragraph breaks added):

[W]e are unpersuaded by Elane Photography’s argument that a photographer serves as more than a mere conduit for another’s expression. See Turner Broad. Sys., Inc., v. F.C.C., 512 U.S. 622, 629 (1994) (explaining that a cable operator serves as a conduit for speech and is not a speaker itself). While Elane Photography does exercise some degree of control over the photographs it is hired to take, in that “it decides which pictures to take, which pictures to edit, and how to edit them[,]” this control does not transform the photographs into a message from Elane Photography....

The [New Mexico Human Rights Act] regulates Elane Photography’s conduct in its commercial business, not its speech or right to express its own views about same-sex relationships. As a result, Elane Photography’s commercial business conduct, taking photographs for hire, is not so inherently expressive as to warrant First Amendment protections. The conduct of taking wedding or ceremonial photographs, unaccompanied by outward expression of approval for same-sex ceremonies, would not express any message from Elane Photography.

Similar to Rumsfeld v. FAIR, an observer who merely sees Elane Photography photographing a same-sex commitment ceremony has no way of knowing if such conduct is an expression of Elane Photography’s approval of such ceremonies. Instead, such an observer might simply assume that Elane Photography operates a business for profit and will accept any commercially viable photography job. Without Elane Photography’s explanatory speech regarding its personal views about same-sex marriage, an observer might assume Elane Photography rejected Willock’s request for any number of reasons, including that Elane Photography was already booked, or did not want to travel.... In no context would Elane Photography’s conduct alone send a message of approval for same-sex ceremonies. Without explanatory speech, the act of photographing a same-sex ceremony does not express any opinions regarding same-sex commitments, or disseminate a personal message about such ceremonies.

Similarly, unlike the parade organizers in Hurley, here, Elane Photography is not the speaker. By taking photographs, Elane Photography does not express its own message. Rather, Elane Photography serves as a conduit for its clients to memorialize their personal ceremony. Willock merely asked Elane Photography to take photographs, not to disseminate any message of acceptance or tolerance on behalf of the gay community.

Moreover, the NMHRA prohibits discriminating in services offered to the public, but it does not require Elane Photography to identify with its clients or publically showcase client photographs. Elane Photography generally retains copyright on all photographs and displays them on Elane Photography’s website, but as Willock points out, these are “discretionary business practices.” Elane Photography could choose not to retain the copyright or otherwise display the photographs for viewing. Without Elane Photography taking further actions to broadcast or disseminate the Willock photographs, Elane Photography’s conduct in accepting or refusing services does not express a message. As a result, regulating Elane Photography’s discriminatory conduct does not violate the First Amendment.

I don’t think this is right, for reasons that I discussed in my earlier posts about earlier stages of this case. 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.

No reasonable person, for instance, would perceive the drivers in Wooley v. Maynard (1978) as endorsing the motto that the state placed on their car license plate (especially before Wooley itself, when observers would assume that keeping the motto unobscured on the license plate was required by law). No-one would perceive them as “express[ing their] own message.” Yet the Court held that they had a First Amendment right not to display this expression. 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.

And that’s especially so given Wooley‘s description of “[t]he right to speak and the right to refrain from speaking” as being “complementary components of the broader concept of ‘individual freedom of mind.’” An individual freedom of mind should protect creators of expression from being forced to create expression they disapprove of.

Nor is it right, I think, to dismiss the photographer’s claim on the grounds that commercial photographers are supposedly mere “conduit[s]” for the expression of their clients. First, Wooley suggests that the First Amendment protects the right not to be even a conduit for others’ expression.

Second, the reason people pay lots of money to hire wedding photographers is precisely that photography, including commercial wedding photography, involves a substantial degree of artistic judgment and expression on the photographer’s part. Elane Huguenin doesn’t create the things she photographs, but she stages the scenes, chooses the angles and lighting, and decides how to best create an artistic representation that is beautiful, and that properly celebrates the event being photographed. That is why photography is protected by copyright, which protects only creative expression; and even if she surrenders the copyright, or never exploits it, she will still have engaged in the creative expression that is protected by copyright — and by the First Amendment.

To give an analogy, say that a commercial translator is operating in a state that bans public accommodation discrimination based on religion in such enterprises, and say that the Scientologists ask the translator to translate some of their press releases into a foreign language. In a sense, the translator may be something of a “conduit” for the Scientologists’ speech; he certainly isn’t supposed to be making it up himself. But effective translation requires a great deal of creative judgment, both to make the work understandable and to preserve to the extent possible the work’s rhetorical effectiveness and sometimes even aesthetic sensibility.

It seems to me that the First Amendment secures the translator’s right to refuse the commission, and to choose not to create pro-Scientology propaganda, even if the creative process simply involves translating text from one language to another (and even if the translator’s identity will never be known by third parties, and even though the translator could avoid the compulsion by giving up his livelihood). Likewise, the First Amendment secures a photographer’s right to refuse the photographer an event that she views as immoral, and to choose not to create creative expression that is meant to celebrate that event and to depict it as beautiful, even if the creative process simply involves recording (and staging) images from life into photographs.

In any event, I hope that Huguenin and her lawyers (the Alliance Defense Fund) seek review by the New Mexico Supreme Court, and, if that fails, even by the U.S. Supreme Court. I will also blog shortly about the other major issue in the case, Huguenin’s separate claim for a religious exemption from the state antidiscrimination law.

A commenter suggested that a hypothetical involving a photographer who refuses to photograph a pro-Nazi ceremony was an “absurd example,” apparently because of the absence of statutes that make it illegal to discriminate against Nazis.

Most jurisdictions don’t ban discrimination based on political affiliation, but some do. The D.C. antidiscrimination law to which I linked in an earlier post expressly bans discrimination based on political affiliation in public accommodations, with political affiliation defines as “the state of belonging to or endorsing any political party.” It is thus illegal to discriminate against a person in public accommodation based on his he belonging to or endorsing the American Nazi Party. Perhaps one could argue that discriminating based on a person’s Nazi ideas isn’t the same as discriminating based on political affiliation, but I doubt that this would much impress a court that concluded (as the New Mexico court did) that discriminating in favor of legally recognized weddings (which under New Mexico law must be opposite-sex weddings) constitutes sexual orientation discrimination. Virgin Islands law does the same, as does an Urbana-Champaign ordinance.

A Seattle ordinance expressly bars discrimination in public accommodations based on “political ideology.” A Madison ordinance expressly bars discrimination based on “political beliefs.” Other cities have similar bans.

The California public accommodation discrimination ban doesn’t expressly bar political affiliation discrimination, but it has been interpreted quite broadly, and has apparently led to an ACLU lawsuit against a restaurant that excluded a patron for wearing a swastika.

So bans on political affiliation discrimination in public accommodations aren’t common — but they certainly exist, and it’s impossible to dismiss hypotheticals based on them as “absurd.” And if the First Amendment is read as not protecting Elane Photography, it probably wouldn’t protect the speechwriter or press release writer who refuses to write for Nazis or Nazi events, either.

In the most recent discussion of Elane Photography v. Willock, a commenter asked: “Imagine if instead of a gay couple it was an interracial couple. Would you still support Huguenin’s refusal to photograph the wedding? Or what if the couple were parapalegics and she had an ‘aesthetic aversion’ to photographing the disabled?” The question (at least as to race discrimination) comes up routinely in such cases.

The answer is “of course.” It seems to me that freelancers who create expression — whether speeches, press releases, Web sites, photographs, paintings, musical compositions, or what have you — should be entitled to choose what they create, regardless of whether we find the basis for their decisions praiseworthy or contemptible. If a musician who is a member of the Nation of Islam member decides that he wants to only perform at black weddings, or non-Jewish weddings, or non-interracial weddings, he should be entirely free to do so. Likewise if an Orthodox Jewish composer decided he didn’t want to compose music commissioned for a wedding between a Jew and a non-Jew. (This may well constitute ethnicity discrimination, which the law generally treats much like race discrimination, if the composer is focusing not on the non-Jewish partner’s religious beliefs but on the non-Jewish partner’s being of non-Jewish descent.)

And of course the same would be true if a portrait painter concluded that he didn’t want to make art depicting certain kinds of disabilities (whether because he thought he wouldn’t be very good at that, or because it isn’t likely to be as aesthetically pleasing as he wants his art to be, or what have you). And it would be true for the other examples I gave, in which people chose what to write, photograph, or compose for based on the parties’ religion, political affiliation, source of income, marital status (imagine a Catholic who doesn’t want to write a press release for a celebrity wedding in which one party is divorced) or who knows what else.

The desire to prevent race or disability 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.

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.

I just finished reading the New Mexico trial court’s Elane Photography decision, and thought I’d blog a bit about it. Let me begin with the compelled speech question.

Elane Photography — a husband-and-wife company in which the wife, Elaine Huguenin, is the head photographer (and I think the only routine photographer) — refused to photograph a same-sex wedding. This, the court held, violates state antidiscrimination law, since commercial photographers, as well as “film editor[s], commercial music composer[s], commercial musician[s], graphic designer[s] or any other creative professional[s] whose services are available to the public,” are treated as “public accommodation[s]” under New Mexico law. And the refusal to photograph same-sex weddings constitutes sexual orientation discrimination in public accommodations, which state law bans.

But, Huguenin says, requiring me to photograph same-sex weddings on the same terms as other weddings compels me to create expressive works. The First Amendment presumptively bars speech compulsions as well as speech restrictions; creating photography is a form of speech; therefore, I can’t be compelled to create photography, any more than I can be compelled to say things or display things on my property. Not so, says the court:

Plaintiff is not being asked to represent the government’s position ..., nor to alter its message .... Plaintiff’s message is not and has never been about same-sex marriages. Rather, its message is fine photography of special moments. Unlike the parade [involved in Hurley, a case in which the Supreme Court held a parade organizer could not be legally compelled to let a gay/lesbian/bisexual group's float into its parade -EV], Plaintiff’s final message is not its own. Instead, Plaintiff is conveying its client’s message of a day well spent. As Defedant Willock states, Plaintiff is really a conduit or an agent for its clients. As such, the Court’s finding that Plaintiff cannot refuse to photograph same-sex couples during a commitment ceremony is not an infringement of Plaintiff’s right to freedom of expression.

1. The first thing we should note is the breadth of the court’s reasoning: It applies not just to photographers, but also to the musicians, composers, graphic designers, film editors, and other creators that the court mentioned earlier in the opinion. It would also apply to freelancers who write press releases, advertising copy, and so on. And I take it that it would also apply to bookstores, movie theaters, and other such distributors of others’ works; the authors and filmmakers aren’t “clients” of such distributors, but still the distributors’ “final message is not [their] own,” and they are “really a conduit” for others’ work.

I’ve heard some people argue that wedding photography (as opposed to artistic expression) isn’t really expression, because it’s too banal and straightforward. I doubt that this is so, but in any event it’s clear that the court’s reasoning applies without regard to the supposed banality of the expressive work.

2. But is the court’s reasoning, broad as it is, correct? Is it permissible for the law to require freelance writers, composers, artists, editors, and the like to create speech that they don’t want to create? Might it even be permissible for the law to require other conduits, such as bookstores and movie theaters, to distribute speech that they don’t want to distribute? (I use “speech” here in the standard First Amendment sense, which includes music, pictures, video, and the like.)

I don’t think so. After all, despite the court’s attempt to distinguish Wooley v. Maynard — the license plate motto case — a license plate motto isn’t the driver’s own (and certainly wasn’t seen that way before the Court recognized a driver’s right to obscure motto). The drivers in Wooley were simply conveying the government’s message; they were a conduit for the government. Yet the Court held that “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind,’” and that the Maynards had a right “to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.”

Now it’s true that here the government isn’t specifically requiring people to carry a particular string of words; and while a same-sex wedding may represent “an idea” (actually, many ideas), photographs of the wedding don’t convey the idea quite as specifically as the “Live Free or Die” on the license plate did. Nonetheless, Huguenin is being compelled not just to foster but to create a particular sort of expression — expression celebrating a same-sex union — that she finds morally objectionable.

Nor does it matter, I think, that Huguenin is in business. The Court has long held that speech retains full protection even when it’s sold for money. (Fully protected speech products such as newspapers, books, and the like are routinely sold for money.) The freedom from compelled speech applies to such sold-for-money media as well as to other media. The right not to create speech that you disapprove of should likewise extend to the right not to create such speech for money as well as the right not to create such speech for free. I take it, for instance, that the Maynards’ right not to display the “Live Free or Die” motto would apply even if the Maynards used their car to deliver pizzas or drive to commercial photography assignments. The same should extend to the right not to create works you disapprove of.

Wooley did involve the display of speech, while this case involves the creation of speech. But that should cut in favor of Elane Photography, rather than against: It seems to me that having to create speech, using your own creative abilities and judgments as an artist, musician, writer, or what have you, is an even deeper “foster[ing]” of “an idea [you might] find morally objectionable” — an even deeper intrusion on “individual freedom of mind” — than is simply having to displaying what is clearly the government’s message on a government-provided license plate.

3. Finally, for those who disagree, let me ask (as I did in my posts on the Human Rights Commission decision): 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 text, and the like — for a same-sex marriage planning company, a Scientology book distribution company, a state branch of the Socialist party, a company that gets its income through legal prostitution, or whatever else. (Note that some jurisdictions ban discriminate based on “political affiliation” and “source of income” as well as religion, sexual orientation, and the like.)

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, political affiliation, or whatever else to which the materials would be related? That’s what the trial court decision seems to hold. Or do you have a First Amendment right to choose which words you write and which you decline to write?

The case is Elane Photography, LLC v. Willock, and I blogged about it here, when it was being considered by the New Mexico Human Rights Commission. The decision was handed down last Friday, but the opinion wasn’t distributed until yesterday. I hope to blog more about it today, but here’s my analysis from last year:

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....

[The order rests] 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).

[1. Compelled Speech.] 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.) ...

[2. Religious Exemptions:] [And] the decision may also violate the photographer’s religious freedom rights under the New Mexico Religious Freedom Restoration Act.

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