NM Wedding Photogs Can’t Discriminate Against Same-Sex Couples, Court Confirms

New Mexico’s appeals court has confirmed that wedding photographers who refuse to shoot same-sex weddings violate the state’s anti-discrimination laws.

New Mexico Court of Appeals judge Timothy L. Garcia affirmed two previous rulings that Elane Photography of Albuquerque violated the New Mexico Human Rights Act when they refused to photograph the wedding of a same-sex couple on religious grounds.

The NMHRA prohibits businesses offering services to the public from discriminating on the basis of sexual orientation. The appeals court rejected Elane Photography’s arguments that forcing them to photograph a same-sex wedding under NMHRA amounted to a violation of their freedom of speech or freedom of religion protections.

The New Mexico Human Rights Commission originally ruled in 2008 that Elane Photography violated the state law. A trial court affirmed the NMHRC decision in 2010, triggering a second appeal to the New Mexico Court of Appeals.

The case arose after plaintiff Vanessa Willock inquired about hiring Elane Photography to photograph her commitment ceremony. She indicated it was a “same-gender” ceremony. The owners fo Elane Photograph–Elaine and Jonahtna Huguenin–responded that they photographed only “traditional” weddings. Willock followed up, asking Elane to clarify whether “it does not offer photography services to same-sex couples.” Elane photography responded, “Yes, you are correct in saying we do not photograph same-sex weddings.”

The next day, Willock’s partner sent an e-mail inquiring about photography for her wedding, without mentioning that it was a same-sex ceremony. Elane Photography responded by sending pricing information, indicating a willingness to travel to the wedding, and offering to meet to discuss options.

Willock filed a claim for discrimination with the New Mexico Human Rights Commission, and won her case. The NMHRC awarded her $6,638 in attorney’s fees. She did not seek monetary damages.

The appeals court re-examined all of the arguments that Elane Photography presented  in its original appeal to a state trial court, and rejected them one after another.

For instance, Elane Photography argued that it refused to photograph a same sex-wedding, but that didn’t amount to discrimination against Willock because Elane Photography would have photographed her in other contexts, such as portrait sessions, for example. But the court said that amounted to “attempt[ing] to justify impermissible discrimination” by separating Willock’s actions from her status as a member of a protected class. The argument, the court went on to say, “is without merit.”

Elane Photography also argued that the NMHRA violated rights of freedom of expression protected by the US and New Mexico constitutions. The basis of that argument was that photography is an artistic expression protected by the First Amendment.

But the appeals court batted down that argument, too: “the NMHRA 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 court explained that taking pictures of a same-sex wedding doesn’t by itself convey a (constitutionally protected) message of approval or disapproval of same sex marriage, the court explained. “[A]n observer might simply assume that Elane Photography operates a business for profit and will accept any commercially viable photography job.”

Similarly, Elane Photography argued that forcing it, under the NMHRA, to photograph a same-sex wedding would violate its freedom of religion protections. But the appeals court said the NMHRA doesn’t prevent the owners of Elane Photography from practicing their religion. And the court reasoned,  “Elane Photography voluntarily entered public commerce and, by doing so, became subject to generally applicable regulations such as the NMHRC. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes [that] are binding on others in that activity.”

The owners of Elane Photography were not immediately available for comment. It is not clear whether they plan to appeal the latest ruling to the New Mexico Supreme Court.

The full text of the ruling can be downloaded here.

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18 Responses to “NM Wedding Photogs Can’t Discriminate Against Same-Sex Couples, Court Confirms”

  1. Rico Says:

    This is slavery. A photographer should not be forced to take any assignment she does not want.

  2. Greg Says:

    I don’t photograph births, deaths, sex acts, sacrificial ceremonies and a whole course of devil worshiping activities based on my personal beliefs and comfort levels.

    If a ‘protected class’ comes to me to solicit my photographic skills, based on this court ruling I would be foreced to photograph them or face being taken to court.

    The one point that also sticks out, is shouldn’t the gay couple have sought out a gay-friendly photographer who would do a much better job in capturing their special day? There are so many of us out there who would focus on the couple and do their day justice. All it would have taken is a couple of phone calls and a Google search.

  3. Dave Says:

    If a Christian couple went to an athiest owned photo studio and asked them to photograph their wedding and the athiest said no, would the Christian be afforded the same ruling?

    So, I guess this means that those signs “We retain the right to refuse service” don’t mean a thing.

  4. Grant Says:

    1960s lunch counters also had signs about refusing service. It’s fine to choose your clients, but it’s not fine to discriminate against people who are just trying to exercise the same rights others have.

  5. David Walker Says:

    The court ruling spells out the protected classes in New Mexico: “The NMHRA prohibits “any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services . . . to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation[,] or physical or mental handicap.”

    It’s also worth noting that the the case turned on Elane Photography’s explanation for why it wouldn’t serve Willock, which amounted to evidence of discrimination. The judge wrote in the ruling: “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.”

  6. William Says:

    Greg, you’re suggesting a flawed analogy. Same sex weddings are not sacrificial ceremonies in which newborn babies are killed to worship the devil, that’s just how you choose to imagine them.

    The matter is very simple. Elaine Photography offers the service of wedding photography, but only to heterosexuals. They deny the service based on sexual orientation and nothing more. That is discrimination in its purest form, and is a clear violation of New Mexico’s law.

  7. RUFUKNKDNGME Says:

    Declining to photograph an event (a same sex marriage) is not the same as discriminating against a person (based on sexual orientation).

    The photographer was willing to photograph the person for portraits, or for a “traditional” wedding if the subject was interested in having one — clearly the photographer was willing to photograph the subject.

    However the photographer was not interested in taking an assignment that was out of their field of expertise (traditional weddings), and the subjects should have sought a specialist in that area.

    Hypothetical — If a straight porn actor is hired to do a straight porn film, he might not ask or care if the other actors are straight/bi/gay. Following the plaintiff’s logic, if the same straight actor was approached to do a GAY porn film, and refused, he could be sued for discriminating against the producers of the gay porno?

  8. Dave Says:

    What disturbs me is that court has put the studio (and like businesses) in the category public accommodation, like restaurants and shops.

    To Greg’s point, if he sets up shop as a lifestyle photographer and a lesbian couple comes in and asks him to photograph the birth of their child and he says no, I don’t do that based on my personal beliefs (whatever they may be) but offers to photograph the pregnant Mom and the couple together before the delivery and then photograph the child after delivery, the lesbian couple could come back, sue Greg and force him to photograph the birth because they are a protected class.

    Even though Greg doesn’t advertise the birth service and it may be in his business plan and on his marketing material and website that he doesn’t do births or deaths, because New Mexico now puts him in ‘public accomodation’ status he will have to do this.

    I don’t believe in discrimination based on race, sex, religious beliefs, sexual orientation, etc, but when a business no longer has the ability to conduct business in a manner that meets their market, the business will begin to fail.

    And also to Greg’s point, the gay couple should have done some research to find a gay-friendly studio that would have better suited their needs. There are a lot of us photographers out there who meet that criteria and it’s only a Google search away.

  9. femmyror Says:

    What a good analogy, RUFUKNKDNGME, with the pornography dilemma. Just terrific.

    Jesus.

  10. rsc Says:

    These analogies are ridiculous.

    A porn actor can choose which genres he/she will do, and that includes the type of sex acts they will portray. It might be a violation of human rights codes for a porn actor to refuse to perform a certain sex act based on the sexual orientation of the other actor, but not which sex acts he/she is willing to perform. So if he will perform oral sex on a straight man he can’t decline to shoot it with a gay man. But he can decline oral sex shoots entirely. Or restrict his work to only doing sex scenes with a woman, but he’d have to shoot with straight and lesbian women.

    If you shoot weddings you can’t decide not to shoot the wedding of a homosexual couple or a mixed race couple, or any other couple based on their protected status (race, sexual orientation or religion). So a Jewish photographer cannot decline a Christian wedding. Yes Christians are protected the same as same-sex couples. Some same sex couples are in fact Christian.

    No one can force you to shoot genres you are not comfortable with – if you don’t shoot weddings you can’t be forced to shoot a gay wedding or a straight wedding. If you don’t shoot any child-birth then you can’t be forced to shoot a gay child-birth. And you can’t be forced to shoot sacrifices for a gay couple any more than you can for a straight couple.

    About the only thing you may be able to decline to shoot is sex acts between a gay couple even if you shoot them with a straight couple – but only if you live in one of those backwards states that makes it illegal for gay couples to have sex. I don’t believe that the human rights codes would force you to commit a crime – though I would check with a lawyer before declining such a shoot on that basis. (I think many of those laws would in fact be considered a violation of most human rights laws, but remain on the books because they have not recently been challenged – since few states actually prosecute those laws).

    It’s really not that difficult.

    That said, if I was gay I know for certain I wouldn’t be booking any of the bigoted idiots that have posted here to shoot my wedding.

  11. Brian Says:

    So let me throw this out there. So I’m a wedding photographer, but let’s say hypothetically I do boudoir photography. 99% of the time, it’s the ladies that want boudoir photography. Then a guy comes along and asks to do a “dude-oir” photo session with me for his wife. Am I then not aloud to say, “You know, I honestly wouldn’t feel comfortable photographing you in your man-thong etc etc”.

    So would that be discrimenation? Could I be sued for that? Do I basically have the choice of being sued or being forced to photograph this dude flexing his butt cheeks in a banana hamock? Seriously? I am all for equal rights. But if it makes these photographers uncomfortable to shoot it, why make them shoot it. I don’t get it. Wouldn’t you want a photographer that would be comfortable with you? And because of that…they get sued. Messed up. It’s ridiculous that these cases come out like this. Why couldn’t they have just said, “Well that’s not the photographer for us because they probably won’t be the most comfortable. Let’s find a different one that will be.”

  12. rsc Says:

    Brian,

    You probably could be sued for declining to shoot a man in a style you would shoot a woman. But this article and legal decision is about sexual orientation and not gender.

    But here is the problem with the logic of telling the gay couple to move on. They found a photographer with a style and quality of work they like. Maybe they found 10 of them. What if all 10 photographers say I don’t shoot gay weddings. Why should the gay couple be forced to choose from a group of photographers that might be okay shooting the content, but not be a good photographer, or have a style they like.

    It is very similar to telling a black woman she can’t have her hair cut in a certain salon, or a Jewish family they will need to find someone else to paint their house. No one should be forced to choose the less talented/skilled/professional supplier based on their race, religion or sexual orientation.

  13. Free Man Says:

    I was born in a communist totalitarian regime (now I am a free man). The totalitarians always forced my people to embrace communist ideologies agaist our will. The totalitarians always claimed their ideologies were lawful, reasonable and based on science. Of cource they were – because totalitarians created (and forced everyone to obide) their false acts of law, their false science, their false morality, and so on. In reality all of this was based on LIES about true human nature – this is the very source of any totalitarian order.

    My people were being imprisoned, tortured and even killed just because they simply did not want to embrace communism. In totalitarian ‘court of law’ it was often a matter of simple answer ‘yes’ or ‘no’ to communism that decided about one’s fortune. Many people were given a death sentence and were executed. Many were forced to leave their jobs, businesses, families, etc. only because they were not yet brainwashed and didn’t share ‘mainstream views’ on communism and its various ideologies.

    I am very sorry for what happened to people at Elane Photography. I want them to know that there are many of us who support them in their pursue of freedom. The truth about human nature will always eventually win.

    To those who compare one’s discontent towards homosexual activities to a discrimination on basis of colour, sex, ethnic background, religion, I would like to say: you know nothing! You can create all false laws you want, recite all false premises you want, this will not change human nature. I’ve been there, I’ve seen it.

  14. Benny Says:

    You people are disgusting.
    The money is GREEN gladly accept it and keep your business alive.
    It’s simply astounding that in an industry that is dieing anyone would turn down serious work from anyone that WANTS TO GIVE YOU MONEY.

    If you really don’t need the work than you tell the person on the phone that you are currently booked on that day or something similar.
    It’s not like this is brain surgery.

  15. ThePaulie Says:

    I thought when you owned your own business you had the freedom to decide who you wanted to do business with.

  16. John Says:

    This is a good example of the slippery slope of state sanctioned same sex marriage. People will be forced not only to tolerate same sex marriage but to actually approve of it against their conscience. I guarantee that if this goes unabated Priests and ministers will be force into conducting same sex marriage ceremonies or lose their tax exempt status. This would be a gross violation of our most treasured freedoms… freedom to worship and practice our faith w/o Government intervention or bullying.

  17. An Interesting Article: Refusing To Shoot Gay Marriage Is Discrimination, Says New Mexico Appeals Court « Jeremy's (almost) Daily Musings Says:

    [...] PDNPulse, image by Ludovic Bertron on [...]

  18. Cliff Says:

    So under this ruling, if the Westboro wackos approach an event photographer to shoot their next “event” then that photographer couldn’t refuse?

    This is crazy really. Especially with photography. Why in the world would anyone want to hire someone who isn’t absolutely enthusiastic to shoot the event? Really, how much energy would you put behind a project you were forced to take under threat of lawsuit?

    One other point. The US Supreme Court has ruled that corporations do have first amendment protections when it comes to freedom of speech. By saying that they don’t have freedom of religion, then the courts are saying that religion is a lesser right than speech even though they are both covered in the first amendment of the constitution.