July 9th, 2014

Why a Corporation Got a Religious Exemption, But a Photographer Didn’t

After the Supreme Court issued its ruling in the Hobby Lobby case, granting a corporation an exemption to a federal law on the grounds that the law “burdens the exercise of religion” of the company’s owners, we wondered: Why did the Supreme Court grant a religions exemption to a corporation, but decline to give a hearing to a New Mexico wedding photographer who refused to photograph a same-sex wedding for religious reasons?

In 2006, Elane Photography of Albuquerque declined to photograph a same-sex wedding ceremony because of owner Elaine Huguenin’s religious objections. Elane Photography was found  in violation of New Mexico’s anti-discrimination law, which explicitly bars discrimination on the basis of sexual orientation. Elane Photography was ordered to pay more than $6,000 in attorneys fees and costs to Vanessa Willock, who filed the discrimination complaint.

After exhausting her appeals in New Mexico state courts, Huguenin tried to appeal her case to the US Supreme Court, which declined without explanation in April to hear her case. Two months later, on June 30, the Supreme Court ruled that Hobby Lobby was exempt from a requirement under the Affordable Healthcare Act to provide employee health insurance coverage for certain types of  contraceptives because the requirement “substantially burdened” the company owners’ exercise of religion.

Did Hobby Lobby simply make a better legal argument for a religious exemption than Elaine Huguenin did? Could some other wedding photographer now win an exemption from photographing same-sex weddings for religious reasons by arguing that if Hobby Lobby got a religious exemption, then it’s only fair that a small business owner should get one, too?

It turns out that the cases are quite different. Hobby Lobby, a federal case, would have been no help to Elaine Huguenin, who broke a state law. Photographers opposed to shooting same-sex weddings, but who are subject to anti-discrimination laws, can’t invoke the Hobby Lobby decision to make religious freedom arguments, at least not in cases involving state laws.

“The Hobby Lobby [decision] doesn’t apply to state laws,” says Andrew Koppelman, a law professor at Northwestern University who has analyzed the Elane Photography case. He also emphasizes that the Hobby Lobby decision didn’t address an issue of constitutional law, which would trump state law. “Hobby Lobby was an interpretation of [federal] statute and it only modifies other federal statutes. It doesn’t modify state statutes.”

The court reached the Hobby Lobby decision on the grounds of the Religious Freedom Restoration Act (RFRA). That law, passed in 1993, prohibits the federal government from taking any action that substantially burdens the exercise of religion–unless the action is the least restrictive means of serving a compelling government interest. The Supreme Court said there were less burdensome ways to provide the disputed insurance coverage to Hobby Lobby employees than to make Hobby Lobby provide it against the owners’ religious beliefs.

In the decision on the final Elane Photography v. Willock appeal, handed down last August, the New Mexico state supreme court upheld lower state court rulings against Elane Photography for discrimination. The court rejected Huguenin’s religious freedom and free speech arguments.

She had argued that under the New Mexico Religious Freedom Restoration Act (NMRFRA)–the state’s version of the federal law–her religious beliefs should be accommodated. But New Mexico’s high court ruled that the NMRFRA doesn’t apply to private disputes; a government entity has to be a party to the dispute, and that wasn’t the case in Elane Photography v. Willock.

Moreover, the court said, the wording of the NMRFRA bars state government agencies from restricting a person’s free exercise of religion; it doesn’t bar the New Mexico legislature from passing generally applicable laws, as long as they don’t directly discriminate against religion. For instance, a law that applies to everyone, but doesn’t interfere with the exercise of religion, is legal under New Mexico state law, even if some people have religious objections to the law.

Koppelman wrote in his analysis of the Elane Photography case, “After the loss in New Mexico…there was no hope of bringing the religious liberty claim to the Supreme Court. Huguenin lost her case under a [state] law that did not target religion, and the [US Supreme] Court has held that the Free Exercise clause does not create an exemption from neutral laws of general applicability.”

In other words, Huguenin couldn’t appeal to the US Supreme Court on the grounds that her constitutional rights of Free Exercise had been violated by the New Mexico anti-discrimination law; the state law passed muster according to an earlier Supreme Court ruling (Employment Div. v. Smith, 1990).

In response to that 1990 ruling, politicians of all stripes were outraged, so Congress passed the federal Religious Freedom Restoration Act [RFRA] to restore protections of individual religious freedom from infringement by other federal laws. But even if Hobby Lobby had successfully invoked the RFRA before New Mexico courts found Huguenin in violation of state anti-discrimination laws, the Hobby Lobby decision wouldn’t have helped Huguenin because the RFRA has no effect on state laws.

In addition to rejecting Huguenin’s religious freedom claims, the New Mexico  supreme court also rejected her free speech claims. The state supreme court said, “The United States Supreme Court has made it clear that the First Amendment permits [anti-discrimination] regulation by states,” and that the New Mexico anti-discrimination law didn’t deprive Huguenin of her rights to free speech.

Huguenin tried to appeal to the US Supreme Court on Free Speech grounds, not Free Exercise grounds, but the Supreme Court declined without explanation to hear her case. Koppelman asserted in his article that the court rightly rejected the case because the New Mexico anti-discrimination law is “not a serious burden on free speech.”

It’s worth pointing out that the Elane Photography v. Willock decision applies only in New Mexico. Wedding photographers in about 30 other US states can refuse to photograph same-sex weddings for whatever reason–religious or otherwise–without consequence. That’s because federal law doesn’t bar providers of goods and services from discriminating on the basis of sexual orientation, and those 30 or so states also have no laws barring such discrimination. New Mexico just happens to be one of the 20 or so states where discrimination on the basis of sexual orientation is now illegal.

Related:
US Supreme Court Declines New Mexico Wedding Photographer’s Discrimination Case
Photographer Who Refused to Shoot Same Sex Wedding Loses Another Appeal
NM Wedding Photogs Can’t Discriminate Against Same-Sex Couples, Court Confirms
Photographer Loses Bid to Refuse Same Sex Wedding Jobs (PDN subscription required)

August 28th, 2013

Ruling on Wedding Photog’s Refusal of Same-Sex Couple Explains How Law Applies to Annie Leibovitz

Last week, in their ruling that wedding photographers in New Mexico can’t refuse on moral or religious grounds to provide services to same-sex couples, the state supreme court justices were careful to note that state anti-discrimination law does not apply to commercial or fine-art photographers. The justices said the level of a wedding photographer’s artistry doesn’t matter, and referenced the work of Annie Leibovitz and Peter Lindbergh as a hypothetical example to make the point.

The appellant in the case, Elane Photography, was asking the state’s high court to overturn a ruling by a lower court that said Elane Photography had violated the law by refusing to photograph a commitment ceremony of a same-sex couple.

In rejecting Elane Photography’s appeal, the high court noted that the ruling applies only to photographers who offer their services to the general public:

“The reality is that because [Elane Photography] is a public accommodation [ie, a business offering services to the general public], its provision of services can be regulated, even though those services include artistic and creative work. If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography’s choice of whom to photograph or not,” the court said in its decision.

“This determination has no relation to the artistic merit of  photographs produced by Elane Photography. If Annie Leibovitz or Peter Lindbergh worked as public accommodations in New Mexico, they would be subject to [the state's anti-discrimination laws].”

The full story about the case is at PDNonline.com.

June 6th, 2012

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.