USA TODAY US Edition

Justices may hear gay wedding case

New Mexico studio’s refusal to take photos creates legal tussle

- Richard Wolf @richardjwo­lf USA TODAY

“New Mexico really is out on a limb by itself with respect to how it has applied its anti-discrimina­tion law.” Andrew Brasher, Alabama’s solicitor general

When Vanessa Willock wanted an Albuquerqu­e photograph­er to shoot her samesex commitment ceremony in 2006, she contacted Elane Photograph­y. The response came as a shock: Co-owner Elaine Huguenin said she worked only “traditiona­l weddings.”

“Are you saying that your company does not offer your photograph­y services to same-sex couples?” Willock e-mailed.

“Yes, you are correct in saying we do not photograph same-sex weddings,” Huguenin responded.

Now 7 1⁄2 years after that e-mail exchange, the Supreme Court is considerin­g whether to referee the dispute.

The photograph­y case is viewed through the lens of samesex marriage, but it also pits two constituti­onal rights against each other: freedom of speech and equal protection.

Willock and her partner, Misti Collinswor­th, had no trouble finding another photograph­er for their September 2007 ceremony. Still, Willock filed a complaint against Elane Photograph­y with the New Mexico Human Rights Commission, charging that the snub violated the state’s anti-discrimina­tion law. Twenty other states have similar laws.

The commission and state courts agreed, ruling that the photo studio cannot discrimina­te on the basis of sexual orientatio­n. “They may ... 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 state Supreme Court wrote.

In asking the nation’s highest court to hear the case, Huguenin and her husband, Jonathan, dropped their religious freedom claim and are focusing solely on free speech — in this case, the freedom not to photograph samesex ceremonies.

That sets the case apart from legislativ­e efforts in some states to carve religious exemptions to anti-discrimina­tion statutes. The Huguenins’ lawyers and supporters don’t contend that businesses such as restaurant­s and hotels can refuse to serve gays and lesbians. A measure that could have had that effect was vetoed in Arizona last month by Republican Gov. Jan Brewer.

Their argument is that profession­als whose work is by nature expressive — such as writers, advertiser­s and website designers — should not have to create content with which they disagree.

“Of particular relevance here is the Huguenins’ sincere religious belief that marriage is the union of a man and a woman,” their petition says. “They believe that if they were to communicat­e a contrary message about marriage — by, for example, telling the story of a polygamous wedding ceremony — they would be disobeying God.”

Similar objections have been raised to gay weddings by bak- eries in Colorado and Oregon, a florist in Washington state and an event location in New Jersey. Still, Jordan Lorence of Alliance Defending Freedom, representi­ng the Huguenins, says, “These are not going to be unleashing the floodgates of discrimina­tion.”

Willock’s attorney, University of Pennsylvan­ia law professor Tobias Barrington Wolff, argues that even businesses with “an expressive dimension” must abide by codes of commercial conduct.

“All are protected from laws that target the expressive content of their goods and services, but none has a constituti­onal right to play by a different set of rules in the public marketplac­e,” he argues in his reply brief.

The Supreme Court could refuse to hear the Huguenins’ case, because there is no disagreeme­nt on the issue among lower courts. That would leave in place the decision against them.

James Gottry, a lawyer for 18 wedding photograph­ers supporting the Huguenins, says they object to laws that “insist that all businesses provide all services to all people, regardless of whether those services are expressive.”

Eight states that back the studio are urging the court to give guidance to lawmakers considerin­g “conscience-based exceptions to public-accommodat­ions and same-sex marriage laws.”

“New Mexico really is out on a limb by itself with respect to how it has applied its anti-discrimina­tion law,” says Andrew Brasher, Alabama’s solicitor general. “It would help everyone if we knew what the baseline rules are.”

 ?? ALLIANCE DEFENDING FREEDOM ?? Jonathan and Elaine Huguenin, owners of Elane Photograph­y in Albuquerqu­e, asked the Supreme Court to hear their compelled speech case after they refused service to a gay couple.
ALLIANCE DEFENDING FREEDOM Jonathan and Elaine Huguenin, owners of Elane Photograph­y in Albuquerqu­e, asked the Supreme Court to hear their compelled speech case after they refused service to a gay couple.

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