by David Walker

A New Mexico wedding photographer who refused on freedom of speech and religion grounds to photograph a same-sex commitment ceremony in 2006 has lost her anti-discrimination appeal.

Photograph Elaine Huguenin was challenging a 2008 ruling by New Mexico's Human Rights Commission(NMHRC). Last month, a state court judge affirmed the commission's finding that Huguenin had violated New Mexico's Human Rights Act by discriminating on the basis of sexual orientation.

The case arose after Vanessa Willock of Albuquerque contacted Huguenin's business, Elane Photography, about photographing her commitment ceremony. Elaine Huguenin told Willock by e-mail "we do not photograph same-sex weddings," but gave no explanation.

The next day, Willock's partner, Misty Pascottini, asked Elane Photography via e-mail if the studio would photograph her wedding in Ruidoso, New Mexico. Pascottini didn't 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 in December 2006 with the New Mexico Human Rights Commission. She sought attorney's fees, but no other damages. The NMHRC finally heard Willock's claim in January 2008, and handed down its decision against Elane Photography in April, 2008.

Under the state's Human Rights Act, it is discriminatory (and illegal) for "any person in any public accommodation to make a distinction in offering or refusing to offer its services" on the bases of race, religion, color, sex, sexual orientation and several other factors.

Elane Photography appealed the HRC ruling to the state court. The court concluded that Elane Photography was a "public accommodation" (a business offering services to the public) and that its owners had readily admitted to discriminatory policies. The court also rejected Elane Photography's defenses one after another.

Most significantly, attorneys for Elane Photography argued that the HRC ruling violated the studio owner's rights to freedom of expression and freedom of religion.

They argued that because photography is a form of expression, any attempt to control it is a violation of freedom of expression. They also argued that Huguenin's work implicitly endorses the messages conveyed in every image, and that Huguenin doesn't wish to convey that a marital relationship can exist between two people of the same sex.

But the court rejected those arguments on the grounds that non-discrimination laws such as the New Mexico HRA don't target speech, infringe freedom of expression, or dictate the content of speech; they instead prohibit 'the act of discriminating against individuals in the provision of publicly available  goods, privileges and services."

The court also noted that Elane Photography wasn't being forced to represent the government's position or alter its message. Her message, the court explained, "is not and has never been about same sex marriages. Rather, its message is fine photography of special moments...[Elane photography] is conveying its client's message of a day well spent."

Elaine Huguenin's freedom-of-religion argument was that the HRA ruling forces her to attend a religious ceremony that violates her conscience, and to express messages contrary to her religious beliefs.

But the court said the state's anti-discrimination law doesn't force her to participate in or defend someone else's beliefs. The only requirement is that she attend in order to photograph the event. "This is no different from the caterer or florist attending the ceremony in order to provide its commercial service," the court said.

The court also noted that the HRC ruling had not prevented Huguenin from practicing or adhering to her religious beliefs.  “At most," the court said, "[Elane Photography and its owner] have been directed to respect [Willock's] belief system and religious observation” and photograph it for a fee "in the ordinary course of their business."

Citing other cases, the court addressed the conflict between the interests of states and personal beliefs of individuals in discrimination cases. It concluded, "There is no doubt that the state of New Mexico has a compelling interest in reducing, if not eradicating, acts of discrimination, even assuming that results in a burden upon [Elane Photography]."

Neither side responded immediately to a request for comment. According to several reports, Elane Photography will appeal.