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Photographer Who Refused to Shoot Same-Sex Wedding Loses Another Appeal

by David Walker



Wedding photographers in New Mexico are legally barred from discriminating against same-sex couples by refusing to provide them with wedding photo services, the state's highest court has ruled.

The ruling upheld three previous discrimination rulings against Elane Photography of Albuquerque. The studio's owner, Elane Huguenin, was held liable for discrimination in 2008 by the New New Mexico Human Rights Commission (NMHRC) for refusing to photograph the commitment ceremony of plaintiff Vanessa Willock. Huguenin first appealed the ruling first to a New Mexico district court, and then to the New Mexico Court of Appeals. Both courts upheld the NMHRC ruling.

In the latest decision in the case, which was handed down last week, New Mexico State Supreme Court justice Edward L. Chávez wrote: "A commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the anti-discrimination provisions of the [New Mexico Human Rights Act] and must serve same-sex couples on the same basis that it serves opposite-sex couples." 

Like the lower courts, the state supreme court rejected Huguenin's arguments that the NMHRA violated her First Amendment rights. Justice Chávez reasoned that the NMHRA doesn't compel Elane Photography "to either speak a government-mandated message or to publish the speech of another."

He also noted that businesses that choose to operate as public accommodations are not obliged to give up their First Amendment rights under state anti-discrimination laws. "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 anti-discrimination laws."

The case arose in 2006, when Willock contacted Elane Photography about photographing her commitment ceremony. Elane Huguenin responded to Willock by e-mail, saying, "We do not photograph same-sex weddings." 

Willock's partner, Misty Pascottini, sent an e-mail to Elane Photography the next day, asking if the studio would photograph her wedding in Ruidoso, New Mexico. Pascottini did not identify herself as Willock's partner. Huguenin responded that she would be willing to travel to photograph Pascottini's wedding, and sent her pricing information.

Willock filed a discrimination claim with the NMHRC in December 2006. She sought attorney's fees, but no other damages. The NMHRC finally ruled in Willock's claim in January 2008, and subsequently ordered Elane Photography to pay $6,637.94 in attorney's fees.

One of the central issues of Elane Photography's appeals has been whether New Mexico's anti-discrimination laws force Elane Huguenin, as a business owner, to provide photographs expressing a client's messages even though those messages run counter to Huguenin's beliefs.

Much of Chávez's decision is dedicated to picking away at that argument. He noted that all public accommodations--including florists, cake bakers, and other wedding vendors--are also barred from discriminating against same-sex couples in New Mexico.

Chávez went on to say in his decision that Huguenin had freely chosen to be a wedding photographer, offering her services to the general public--she wasn't forced into it. If she felt too compromised by anti-discrimination laws affecting public accommodations like wedding photo businesses, the judge suggested, she should become a different kind of photographer. 

"If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography’s choice of whom to photograph or not," Chávez wrote.

He also noted Hugeunin wasn't forced to post pictures she shot of same-sex weddings on her web site, or to use them in advertising. And he wrote,  "Reasonable observers are unlikely to interpret Elane Photography’s photographs as an endorsement of the photographed events. It is well known to the public that wedding photographers are hired by paying customers and that a photographer may not share the happy couple’s views on issues ranging from the minor (the color scheme, the hors d’oeuvres) to the decidedly major (the religious service, the choice of bride or groom)." 

Chávez said that if Huguenin's arguments for a First Amendment exception to public accommodation laws were to prevail, wedding and portrait photographers could "freely discriminate against any protected class." For example, a photographer who was a member of the Ku Klux Klan could "refuse to photograph an African-American customer’s wedding, graduation, newborn child, or other event if the photographer felt that the photographs would cast African-Americans in a positive light or be interpreted as the photographer’s endorsement of African-Americans," he said.

Huguenin was represented by the Alliance Defense Fund. Responding to the New Mexico Supreme Court ruling against Huguenin, ADF attorney Jordan Lorance told The Deseret News of Salt Lake City: "Government-coerced expression is a feature of dictatorships that has no place in a free country." 

He added, "Americans are now on notice that the price of doing business is their freedom. We are considering our next steps, including asking the U.S. Supreme Court to right this wrong."

Related:

NM Wedding Photogs Can't Discriminate Against Same-Sex Couples, Appeals Court Affirms

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