After reading the New Mexico Supreme Court opinion in Elane Photography v. Willock, I’m now convinced that Vanessa Willock and Misti Collinsworth were prescient about the right wing strategy of redefining religious liberty, and absolutely correct to file their discrimination complaint. I had earlier been somewhat sympathetic to the argument that this sort of conflict is more constructively worked out by the free market, and that the couple was feeding the martyrdom needs of the anti-gay right by pursuing legal action.
The unanimous opinion pushes back against organized efforts to expand the reach of religious liberty well past the point where it might conflict with other equally important constitutional rights. Elane was seized on by the usual anti-gay legal advocacy groups as a precedent-setting case, and in my opinion their arguments did the owners of the business a disservice.
Elane Photography did not contest the fact that it is a public accommodation. Instead, the owners argued that they did not discriminate on the basis of sexual orientation because they would have been willing to provide services to LGBT people under other circumstances…circumstances that apparently do not include anything that would make visible the fact that they are LGBT people:
Elane Photography argues that it would have taken portrait photographs and performed other services for same-sex customers, so long as they did not request photographs that involved or endorsed same-sex weddings. However, Elane Photograph’s owners testified that they would also have refused to take photos of same-sex couples in other contexts, including photos of a couple holding hands or showing affection for each other. Elane Photography also argues in its brief that it would have turned away heterosexual customers if the customers asked for photographs in a context that endorsed same-sex marriage. For example, Elane Photography states that it “would have declined the request even if the ceremony was part of a movie and the actors playing the same-sex couple were heterosexual.”
In other words, they claim, they didn’t discriminate against Willock and Collinsworth because they are lesbians, but because they were behaving like lesbians who are comfortable with who they are.
The court wasn’t impressed either: “Elane Photography’s argument is an attempt to distinguish between an individual’s status of being homosexual and his or her conduct in openly committing to a person of the same sex,” writes Justice Edward L. Chavéz. This is not a novel argument. It sounds to me like yet another version of the one that proclaims “love” for the person “trapped in homosexuality” who is “struggling,” but pointedly ignores the humanity of those who see nothing to struggle about and simply expect to be treated as equal under the law.
Quoting from another case, “a tax on wearing yarmulkes is a tax on Jews,” Chavéz continues,
We agree that when a law prohibits discrimination on the basis of sexual orientation, that law similarly protects conduct that is inextricably tied to sexual orientation. Otherwise we would interpret the [New Mexico Human Rights Act] as protecting same-gender couples against discriminatory treatment, but only to the extent that they do not openly display their same-gender sexual orientation (my emphasis).
And the law states that public accommodations may not offer different services to different classifications of customers, for example, “if a restaurant offers a full menu to male customers, it may not refuse to serve entrees to women, even if it will serve them appetizers.” Seems clear enough.
Elane also argued that the public accommodation law “unconstitutionally compels it to ‘create and engage in expression’ that sends a positive message about same-sex marriage” that it does not wish to send. But Elane Photography itself is not required to recite or display any message, nor is it prohibited from expressing any message of its own choosing. Because it has chosen to operate as a public accommodation,
Elane Photography sells its expressive services to the public. It may be that Elane Photography expresses its clients’ messages in its photographs, but only because it is hired to do so. The NMHRA requires that Elane Photography perform the same services for a same-sex couple as it would for an opposite-sex couple; the fact that these services require photography stems from the nature of Elane Photography’s chosen line of business (my emphasis)
Elane’s Alliance Defending Freedom (formerly Alliance Defense Fund) attorneys must have thought that their ‘freedom of expression’ argument was clever, but they cannot claim that Elane is being compelled to engage in a special kind of expressive conduct when expressive conduct is precisely the defining purpose and function of the business. Elane is not compelled to “include photographs of same-sex couples in its advertisements or display them in its studio,” and it “is free to disavow, implicitly or explicitly, any messages that it believes the photographs convey.”
They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.
Had they done that, any clients seeking services for a same-sex wedding would be informed that Elane was not the best choice for them. No one would knowingly choose a hostile, disapproving wedding photographer. But posting such an honest disclaimer would likely result in Elane offending many of its potential clients and losing business. No, they wanted to have it both ways, letting the public naívely assume that they gladly provide services to everyone, while reserving the right to privately refuse service when it suited them. No deal, said the court.
In a separate concurrence, Justice Richard C. Bosson places the constitutional guarantee of religious liberty in its proper context – not more nor less important than other constitutional rights – and exposes the intellectual dishonesty of claims that discrimination must be tolerated under the rubric of “live and let live.” It is worth reading in its entirety.
There is a lesson here. In a constitutional form of government, personal, religious,and moral beliefs, when acted upon to the detriment of someone else’s rights, have constitutional limits. One is free to believe, think and speak as one’s conscience, or God, dictates. But when actions, even religiously inspired, conflict with other constitutionally protected rights — in Loving the right to be free from invidious racial discrimination — then there must be some accommodation. Recall that Barnette [finding that students could not be compelled to recite the Pledge of Allegiance] was all about the students; their exercise of First Amendment rights did not infringe upon anyone else. The Huguenins cannot make that claim. Their refusal to do business with the same-sex couple in this case, no matter how religiously inspired, was an affront to the legal rights of that couple, the right granted them under New Mexico law to engage in the commercial marketplace free from discrimination..
..On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others..
..In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.