We previously wrote about the Employment Non-Discrimination Act (ENDA), which would ban private-sector employment discrimination based on sexual orientation, and how the bill’s requirements regarding “conditions of employment” could restrict free speech rights. The Blade says that Congress will likely take up the ENDA bill in 2008, although a final vote may be delayed until 2009 to avoid a possible veto or filibuster.
U.C.L.A. Law professor Eugene Volokh discusses a free speech controversy over a ruling imposed under New Mexico’s gay-rights law, which has been cited by ENDA supporters as an example of a growing consensus in favor of banning sexual orientation discrimination. A photographer was ordered to pay $6,600 by the New Mexico Human Rights Commission for refusing to take pictures of a civil-commitment ceremony planned by a lesbian couple. That seems hypocritical on the part of the State of New Mexico, since it itself does not recognize gay marriage, or treat civil-commitment ceremonies as being analogous to marriage, yet it punishes wedding photographers who likewise do not treat gay civil-commitment ceremonies as being the same as marriages.
The ruling raises two interesting questions. First, does the ruling violate the free speech or freedom of religion of the photographer, given that taking photographs has long been regarded as expression that is original and copyrightable and that wedding photographs are often very distinctive and involve content-based choices and artistic judgment? Professor Volokh believes that it does violate freedom of speech and freedom of religion, and I agree that it violates both the First Amendment and the New Mexico Religious Freedom Restoration Act, based on cases like Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995).
Second, is the ruling even based on a reasonable reading of New Mexico’s gay-rights statute, given that that law bans discrimination based on customers’ sexual orientation, not based on the type of ceremony they wish to promote? After all, there is no evidence that the photographer refused to serve gay clients in general, only that she would not take pictures of a civil-commitment ceremony, i.e., promote a particular message. That is not discrimination based on a customer’s sexual orientation anymore than it would be discrimination based on a customer’s religion for a gay photographer to refuse to photograph a religiously-motivated anti-gay demonstration by a reactionary minister like Fred Phelps, or discrimination against blacks or women for a photographer to refuse to videotape a feminist or Nation of Islam event. (Arlington County, Virginia, recognized that fact in rejecting sexual-orientation discrimination charges against a business that refused to duplicate gay-rights videos).
It is common for wedding photographers to turn down certain types of weddings for reasons unrelated to discriminatory animus towards a customer. And a civil-commitment ceremony isn’t legally analogous to a wedding, since it doesn’t create the same binding commitments as a marriage, so photographing weddings but not civil-commitment ceremonies is not itself discrimination. Thus, the New Mexico Human Rights Commission’s ruling against Elaine Huguenin and Elane Photography and in favor of complainant Vanessa Willock should be reversed.
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To overcome the photographer’s freedom of religion and free speech rights, the New Mexico Human Rights Commission would need, among other things, to show a compelling interest in restricting her speech. But it cannot.
The only possible interest it could rely on is the state’s interest in eradicating sexual orientation discrimination.
But that interest is not compelling, for two reasons.
First, it cannot be treated as compelling for purposes of this case because the state of New Mexico itself discriminates based on sexual orientation in a number of contexts (not just in not treating civil-commitment ceremonies as being analogous to marriages, assuming arguendo that that is discrimination), so it is barred from arguing that eradicating discrimination based on sexual orientation is a compelling interest. That’s what the Supreme Court made clear in its Lukumi decision, where it held that a local government could not treat an important interest as compelling where it inconsistently failed to advance that interest, even when in contexts where doing so would have cost nothing in terms of First Amendment rights. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546-47 (1993) (”Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling”). (This point is developed at length in the briefs in two court cases, Thomas v. Anchorage Equal Rights Commission and Lutheran Church v. FCC.)
So holding Elane Photography liable can’t be justified under the strict scrutiny mandated by the First Amendment and the New Mexico Religious Freedom Restoration Act.
Second, eradicating sexual-orientation discrimination is simply not a compelling state interest outside the employment context. See Curran v. Mt. Diablo Council of Boy Scouts of America, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (boy scouts were protected by First Amendment freedom of expressive association against being forced by California public accommodation and gay-rights laws to include gay people as members and leaders, since being forced to do so did not serve a compelling state interest), aff’d, 952 P.2d 218 (Cal. 1998).
Moreover, there is an additional, alternative First Amendment defense that applies here, unrelated to freedom of religion: freedom from compelled speech. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).
The anti-discrimination statute is being applied by the Commission in a very peculiar way. (I say that as an attorney who used to help adjudicate discrimination cases at the U.S. Department of Education, Office for Civil Rights). And the First Amendment defense is straightforward.
Photography is expressive; most businesses (say, selling hot dogs) are not. Ruling in favor of the photographer is not only consistent with the statute (which forbids discrimination based on customers’ sexual orientation, not based on the ceremony they wish to capture on film), but even if that were not the case, ruling in favor of the photographer would not carve out a big exception to the statute’s reach or vitiate any important state interests.
Since the photography is expressive, the case should be governed by the U.S. Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), which held that a state’s gay-rights law and public-accommodation law could not be used to force an expressive activity (a parade, in that case) to embrace a message of support for gay causes, because doing that violated the First Amendment.
Not only is the photography itself expressive, but the choice of who to do business with is likewise expressive. By requiring Elane to photograph whoever wishes to pay for her services, she is prevented from using her choice of who to serve from conveying her approval or disapproval.
Lawyers, for example, can build such a reputation that simply the fact that a particular lawyer chose to take your case can speak volumes to the public. Why should Elane be denied that power?