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.