I support any two consenting adult’s right to engage in a relationship. If those two people fall in love and decide to get married that’s fine too. I’ve discussed in detail all the reasons I believe this before.
That leads me to the incident that happened in New Mexico last year where a gay couple sued a photography company for refusing to photograph their marriage ceremony – and won. And while I support a same sex couples right to get married I do not support the Government’s assertion that it is legally justifiable to force a business to participate in such a ceremony. According the New Mexico supreme court summary the ruling was as follows:
“The district court upheld the NMHRC’s [New Mexico Human Rights Act] determinations that Elane Photography was a “public accommodation” under the NMHRA and that Elane Photography violated the NMHRA by discriminating against Willock based upon her sexual orientation…the district court also rejected Elane Photography’s constitutional and statutory arguments based upon freedom of speech, freedom of religion, and the NMRFRA.” [source]
Can a company “discriminate” against a certain group of people based on something they perceive violates their religious beliefs? To answer that question I think it is helpful to think about the past.
There was a time not so long ago that people could legally discriminate against African Americans. And for various reasons (religion, culture, history) the law upheld those traditions. Eventually, with a lot of fighting and a lot of controversy, enough people decided that discriminating against black people was immoral and various state and federal civil rights laws were created.
At the time some people claimed that it was their constitutional right to refuse service to whoever they so chose (and maybe it was), but looking back it is pretty clear what they were doing was wrong. Is this another case of civil rights abuse?
Not so cut and dry:
Though I do not support any form of discrimination I do wonder if the nature of a wedding ceremony adds complexity to the situation. And since the same sex couple contacted Elane Photography to photograph a ceremony that they (Elane Photography) found specifically religious in nature it seems her decision not to photograph the ceremony should have been protected by the constitution.
Imagine Elane Photography was owned by a Hindu that refuse to photograph a beef barbecue cookout or Rodeo. Since Hind’s consider the cow “sacred” in a religious context they should not be forced to participate in an event they find spiritually offensive.
In either case – Hindu or Christian – the individual performing the photography service was justified by their religious beliefs to refuse service and should be protected by the constitution. Right?
Why Elane Photography lost in court:
The big question is why the court ruled in favor of the same-sex couple when it seems so obvious (at least to me) that Elane Photography should have been protected under the constitution. Let’s examine:
The court ruled:
“The fact that some photography qualifies as expressive conduct entitled to First Amendment protection does not mean that any commercial activity that involves photography falls under the umbrella of the First Amendment…the threshold question is whether Elane Photography’s conduct is predominantly expressive…we [the court] are unpersuaded by Elane Photography’s argument that a photographer serves as more than a mere conduit for another’s expression…Elane Photography serves as a conduit for its clients to memorialize their personal ceremony. Willock merely asked Elane Photography to take photographs, not to disseminate any message of acceptance or tolerance on behalf of the gay community.” (pages 9 – 12)
I asked my wife (an artist who supports same-sex marriage) about this and she disagrees with the courts ruling. She had this to say:
“Anything an artist does says something about what they believe or what they represent. A lot of professional painters refuse or avoid certain jobs because it’s not something they want in their portfolio and they don’t want to put out a certain image to future clients about their work. So, it’s crazy to think a photographer isn’t attached to her images.”
I agree with my wife.
Freedom of Religious Exercise
Elane Photography also argued for the non-constitutionality of the NMHRA due to “religious rights”, but lost on that front too. The court ruled the following:
“The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)…the case at bar is generally applicable and neutral; it does not selectively burden any religion or religious belief. The NMHRA applies generally to all citizens transacting commerce and business through public accommodations that deal with the public at large, and any burden on religion or some religious beliefs is incidental and uniformly applied to all citizens…The NMHRA is not directed at religion or particular religious practices, but it is directed at persons engaged in commerce in New Mexico.” (p. 12-15)
Wedding Photography is not expressive and not religious. I humbly disagree. I think the court was wrong on this one.