August 22, 2013 | 1:04 pm
Posted by Brad A. Greenberg
In a long anticipated decision, the New Mexico Supreme Court ruled today that a photographer has not First Amendment protection against a state law that forbids her from refusing service to a potential client on the basis of sexuality. The case is Elane Photography v. Willock, and it's been kicking around since 2006, first with a complaint to the New Mexico Human Rights Commission and then up and down the state courts. And the opinion is going to be seen by conservatives as the next stone on the path to anti-religious tyranny.
You can read the full opinion here. The relevant portion, though, for religious folks is the First Amendment free speech discussion.
There the court focuses on the fact that the law permits a photographer to publicly speak out against same-sex unions and homosexuality -- for example, in a banner headline on their website -- and finds therefore that the law does not compel or restrict protected speech. As I said on Twitter, there are two major problems with this rationale.
The first is that it minimizes the speech component of conduct. It's cliche, but actions do speak louder than words. And First Amendment jurisprudence recognizes this. But the New Mexico Supreme Court overlooks it.
The second is a point that Eugene Volokh, my First Amendment professor, made in an amicus brief: "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." Photographers are expressive -- indeed, they automatically receive copyright protection, which is much narrower in the speech it covers than the First Amendment -- and a photographer's decisions regarding what goes into each photo matter. Not only the arrangement and the lighting, but the subject of each photo. In other words, creating civil liability for a photographer who refuses to shoot a gay ceremony actually does create a speech compulsion.
Ken White at Popehat has a thoughtful post analyzing the opinion. Of particular interest is his discussion of Justice Bosson's concurring opinion, in which the justice says that, despite the pain this result will cause the owners of Elane Photography, "compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people." To that, White responds:
Whether or not you agree with Justice Bosson's conclusion, I think it's important that he is explicitly recognizing that these laws -- like so many others -- involve some sort of intrusion into personal liberty of which we should be aware. You may believe that the intrusion is justified, or you may not, but our discussion of the subject is incomplete and even dishonest without that recognition.
The religion angle here should be obvious.
This is unlike court rulings that have taken prayer out of school, limited the teaching of creation and required interfaith surroundings of a municipal nativity scene. It also unlike courts ruling that a state must recognize same-sex marriage or the U.S. Supreme Court striking down DOMA. (All of which I think reach the right result.) The former opinions protected against the governmental promotion of religion and the latter extended equal protection of the laws to gay and lesbian couples.
But this opinion goes much further. It's about private, not public, actors. And it will be remembered by some as telling people who believe homosexuality is a sin that they need to do more than tolerate other beliefs and actions; they need to actually celebrate them.
"It is," as Justice Bossom wrote, "the price of citizenship."
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