Elane Photography lost another round in court with a New Mexico trial court ruling that the company engaged in illegal “sexual orientation” discrimination when the main photographer declined an invitation to photograph a same-sex commitment ceremony in Taos, N.M. Same-sex “marriage” is not legally recognized in New Mexico. UCLA law professor Eugene Volokh has already blogged about the decision here, here and here, pointing out how the decision fails to protect the First Amendment rights of the photographer and her company.
Earlier, the New Mexico Human Rights Commission had ruled against Elane Photography, the small company in Albuquerque run by a young husband and wife, Jon and Elane Huguenin. The state commission found the company guilty of discrimination and ordered it to pay approximately $6600 in attorneys fees to the lesbian who filed the complaint. Jon and Elaine have religious beliefs and public policy beliefs that marriage is defined only as one man and one woman. ?
The District Court’s opinion found that the business was a “public accommodation” under the New Mexico Human Rights Act, even though Elaine Huguenin uses immense amounts of creative and artistic talent to make the photographs of a wedding ceremony. Usually, “public accommodation” laws apply to businesses that dispense uniform products or services, such as a restaurant or a hotel, not to a business that creates unique products. This is a massive and unwarranted expansion of the concept of “public accommodation.” Not every commercial business is a “public accommodation” like a restaurant, hotel or store might be.
Also, the District Court rejected the claims that the state commission’s actions violated the free speech rights and religious liberty of Elane Photography. The District Court reduced the creative role of the photographer to a mere conduit of photos for the buyer. This severely understates what a photographer does in selecting images from among the many taken, altering their tone and color, cropping them, etc. A couple hires a wedding photographer because of her artistic skills. They are not like an employee behind the counter taking passport photos with a stationary camera.
Also, the District Court rejected the religious liberty claims under the federal and state constitutions. Again, the court diminishes the impact of the state’s actions against the photography company, with its statements that Elane Photography is merely being asked to photograph something for a fee. There is no sense that people can be asked by their customers to do something with their businesses that violate the business owners’ beliefs. A photographer who is a vegetarian might decline to create photos for the promotional materials of a meat packing plant. If New Mexico law made that an act of discrimination, the District Court opinion says that there is no First Amendment protection. That can’t be right, and that is why we will appeal this decision to the New Mexico Court of Appeals.