Justices may hear gay wedding case
New Mexico studio’s refusal to take photos creates legal tussle
“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.”