Monday, June 4, 2012

Elaine Photography Punished For Failure To Photograph Same-Sex "Commitment Ceremony"

Now, keep in mind that New Mexico does not recognize same-sex marriages--but because a photographer politely refused to photograph a same-sex "commitment ceremony," she is being fined more than $7,000 by the New Mexico Human Rights Commission.  This has now been upheld by the New Mexico Court of Appeals:

{3} This case arose when Willock, who was involved in a same-sex relationship, emailed
Elane Photography to inquire about photography for her upcoming commitment ceremony.
Willock indicated in the email that this would be a “same-gender ceremony.”  Elane
Photography quickly responded, thanking Willock for her interest but explaining that Elane
Photography photographs “traditional weddings.”  Unsure what Elane Photography meant
by “traditional weddings,” Willock sent a second email asking Elane Photography to clarify
whether it “does not offer [its] photography services to same-sex couples.”  Elane
Photography responded affirmatively, stating, “[y]es, you are correct in saying we do not
photograph same-sex weddings,” and again thanked Willock for her interest in Elane
{4} Partner, without disclosing her same-sex relationship with Willock, sent an email to
Elane Photography the next day.  The email mentioned that Partner was getting married but3
did not specify whether the marriage was same-sex or “traditional.”  Partner also asked Elane
Photography whether it would be willing to travel for a wedding.  Elane Photography
responded that it would be willing to travel and included pricing information.  Elane
Photography also offered to meet with Partner to discuss options.  When Elane Photography
did not hear back from Partner, it sent a follow-up email to determine if Partner had any
questions about the offered services.
Clear enough?  Elaine Hugenin has a moral objection:
Elane Photography’s owners are Christians who believe that marriage is a sacred union of one man and one woman 
Willock would have had no problem finding a photographer who would have felt honored to photograph this.  (This isn't 1950--half the country supports same-sex marriage.)  Pure and simple, this is an attempt to use the power of the state to force everyone to smile stupidly and pretend approval.  This fascist tendency is part of why I went from being quite liberal about homosexuality in the 1970s and 1980s to wishing that "the love that dares not speak its name" would shut up.

Freedom.  Homosexuality.  Pick one.


  1. This is the exact same reason I've gone from fairly liberal on homosexuality to anti-gay marriage. And these human rights commisions are a joke. How can these things be legal? Hey, lets make up random human rights that have never been human rights and fine people who disagree with us.

  2. The state has pretty wide discretion in its use of power. I'm not thrilled about it, but it is probably constitutional. Yet another reason to stay out of New Mexico.

  3. It's hard to sustain this under free speech jurisprudence under /West Virginia State Board of Education v. Barnette/ or /Miami Herald Publishing Co. v. Tornillo/ -- there's a very clear First Amendment right to not be compelled to speak or be forced to act as a conduit for other's speech. The court here tried to dance around that by claiming there was no speech involved at all, but that pretty ridiculous on inspection. /Dale/ might be relevant, too, although courts aren't likely to take that at risk of invalidating other discrimination laws.

    Of course, that doesn't help for matters where there's no expressive content.

    On the gripping hand, I do beg to differ on the point about freedom versus homosexuality. I've seen you bring this up in other contexts a number of times, and while it's a fun catch phrase, it doesn't survive much scrutiny. I can go both ways, and still find things like this case -- or a wide variety of other 'best interest' government actions infringing on freedom of speech or contract -- both misguided and terribly ineffective. A good variety of straight people have no problem supporting laws this offensive to liberty or worse, and few really oppose them all; you've justified (and reasonably so) anti-discrimination laws against African-Americans that'd touch on similar grounds after that goofy Rand Paul dustup. Indeed, these laws can only pass because a lot of straight people like them: the self-identified LGBT community makes up less than 5% and probably less than 2.5% of the US population.

    The problem's not homosexuality. The problem's not even that people are making the same calculus you did. It's that they're in a situation and environment where they can't do that calculus evenly, or even give the most limited amount of respect to other beliefs -- often, anything to the point of dismissing without reading anything they can attribute to 'straight, white, old guys', who 'of course' will pay the whole price.

    The catch phrase is far less interesting to the general public than the thought that they, someday, will be The Man forced to put up with an offensive and irritating customer or coworker because that person is in vogue that day.

  4. Josh, you make a good point about why these laws enjoy enough support to get passed. Most Americans are easily manipulated into supporting such laws because they don't want to seem discriminating (a word that used to mean something positive).

    My use of this phrase is because homosexual activists (and obviously, not all homosexuals) have become especially obnoxious in demanding that the government oppress others so that they can feel good about themselves. You would hope for a little understanding from them of what it is like to be a minority that does not agree with the majority.

    You are right that this is a free speech argument as well. One of the commenters over at Volokh Conspiracy defending such laws was quite honest about the goal: "Forcing bigots to go on the down low is one of their purposes." In short, to suppress dissent.

  5. Ok, take the contract, charge them a butt load of money and deliver a beautiful photo album full of pictures of the back of peoples heads, blurry images of people dancing, shots of the ceiling, the floor, the congregation's ears, crooked pictures of the cake, group portraits with the top of everyone's heads cut off, etc.

    They may believe that they can make a business accept a customer they find objectionable, but they can't make you use your talent wisely. Sure word of mouth may cost them a little business, but the same word of mouth may bring in more customers who don't agree with what they were forced to do.

  6. Discrimination suit, because straight couples didn't get such lousy service, and they would certainly win. Even worse: now they are unable to recreate the event with a photographer prepared to do them justice.

  7. Problem here is, the photo studio in question is a business and has the right to refuse business from anyone it chooses. The first round of emails to them mentioned a same-sex union, and they refused, which is their right. The second round of emails, in an attempt at subterfuge, did not mention this and the photographers assumed it was for an opposite sex wedding (for lack of a better description). There was no human rights violation here, only a violation of the photograph studios right to accept or refuse business from anyone it chooses. This case has less to do with same or opposite sex unions, and more to do with a state over using its power to force people into complicity. Understand, I do believe same sex couple have the right to enter into civil unions, however, I also believe the business has the right to serve or not serve anyone it chooses for whatever reason it sees fit.

  8. Unfortunately, once you open the door by offering a service to the public, you lose the right to refuse service, at least based on whatever criteria the government chooses to impose.

    I think there's a good case for distinguishing a business that is open to the public (a storefront) and a professional service, but I doubt that there will be any such distinction that the courts will uphold. Some groups are so "special" that the courts will not sympathize with those who would prefer not to do business them. Other groups (the heavily tatted and pierced) are another matter.