Twisting the Law to Punish Heretics: Elane Photography v. Willock and the Imposition of “Progressive” Orthodoxy by Judicial Fiat

by Hans Bader on June 6, 2012 · 2 comments

in Legal, Nanny State, Personal Liberty

Judges are supposed to interpret laws narrowly if a broader interpretation would potentially encroach on religious freedom. For example, in NLRB v. Catholic Bishop of Chicago (1979), the Supreme Court refused to apply the National Labor Relations Act to religious schools, even though the NLRA does not expressly exempt such schools, because subjecting them to the Act’s requirements might violate Constitutional religious freedom guarantees.

But the New Mexico Court of Appeals did just the opposite on May 31 in Elane Photography v. Willock. It effectively nullified religious exemptions contained in state law, and expanded the reach of a state gay rights law that bans discrimination in “public accommodations,” in order to uphold an agency’s order that an Evangelical Christian wedding photographer pay $6600 as a penalty for having refused to film a lesbian couple’s “commitment” ceremony.

To do that, it also ignored court rulings recognizing that photography is expression protected by the First Amendment. See ACLU v. Alvarez (2012); Bery v. New York,  97 F.3d 689, 696 (2d Cir. 1996). The First Amendment generally bars the government from either restricting speech, or compelling the creation or dissemination of speech, a principle illustrated by the Supreme Court’s decision in Hurley v. Irish American Gay Group of Boston (1995), a ruling that held that the St. Patrick’s Day parade could not be compelled to include a gay-rights contingent, since parades are speech. (Photography is also treated as inherently expressive for purposes of the copyright laws. See Jewelers Circular Pub. Co. v. Keystone (1922).)

The appeals court is just wrong to claim that Elane Photography can constitutionally be forced to film a ceremony as long as viewers would not perceive its doing so under duress as a “message” by it “of approval for same-sex ceremonies.” As Professor Eugene Volokh, a leading First Amendment scholar, notes, that claim is directly contrary to the U.S. Supreme Court’s decision in Wooley v. Maynard (1977). The fact that Elane Photography is a business — as the appeals court notes — does not eliminate the First Amendment violation, as Professor Volokh explains here. While I have supported gay marriage and the inclusion of gays in the military, I do not think that government officials like judges  should go out of their way to expand the reach of gay rights laws in order to persecute people for not supporting gay marriage or for not equating commitment ceremonies with marriages.

Forcing the proprietor of Elane Photography to participate in a gay commitment ceremony that is contrary to her religious beliefs, by filming it, plainly affects her free exercise of religion, and the appeals court does not argue otherwise. Thus, when the New Mexico Human Rights Commission forced her to pay $6,600 for not doing so, that violated the New Mexico Religious Freedom Restoration Act (RFRA), which expressly states, “A government agency shall not restrict a person’s free exercise of religion unless: A. the restriction is in the form of a rule of general applicability . . . and B. the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.” Neither requirement (A) nor requirement (B) is satisfied here, as I explained long ago. Professor Volokh explains here why the sanctions against Elane Photography do not further a compelling governmental interest. As Volokh notes, Elane Photography “should have a strong” religious-freedom “claim here, especially if there are many other photographers in the area who would gladly photograph a same-sex commitment ceremony, and especially given that the state’s claim that eliminating every instance of sexual orientation discrimination [is a compelling governmental interest] rings hollow given that the state itself discriminates against same-sex commitment ceremonies in its own marriage laws,” which forbid gay marriage in New Mexico.

The New Mexico appeals court did not even address these requirements, because it largely nullified their protections for religious freedom, by holding that the religious-freedom protections of the RFRA do not even apply when a fine or penalties result from a complaint originally filed by a private party rather than a government official acting on his own initiative.

As Professor Volokh notes, this claim ignores U.S. Supreme Court precedents holding that the First Amendment and religious-freedom guarantees limit liability even in lawsuits brought by private parties.  As Volokh notes,

The text of the statute covers all “the state or any of its political subdivisions, institutions, departments, agencies, commissions, committees, boards, councils, bureaus or authorities.” That includes the New Mexico Human Rights Commission, which initially found Elane Photography liable, and ordered it to pay over $6600 in attorney fees, and it includes the New Mexico courts — which are surely “institutions” of “the state” of New Mexico. Indeed, the proceedings were initiated by a private person, Vanessa Willock. But Willock asked “the state” to order Elane Photography to pay money, and that’s what the state did. Under the text of the New Mexico RFRA, Elane Photography has the right to argue that imposing liability on it violates RFRA, and to “assert that violation as a … defense in a judicial proceeding and obtain appropriate relief against a government agency,” which would include a judicial determination that the “government agency” (the Commission or a court) may not hold Elane Photography liable.

The U.S. Supreme Court has ruled that the First Amendment limits liability in lawsuits brought by private parties, even absent any participation by a state civil-rights agency.  See Snyder v. Phelps, 131 S.Ct. 1207 (2011) (First Amendment barred tort liability against anti-gay church); Boy Scouts v. Dale, 530 U.S. 640 (2000) (First Amendment overrode gay scoutmaster’s public-accommodations discrimination claim against the Boy Scouts under New Jersey’s gay-rights law). And other state supreme courts have recognized that state religious-freedom guarantees limit fines and penalties for “discrimination” even in cases initiated by private party complaints. See Meltebeke v. B.O.L.I., 903 P.2d 351 (Or. 1995) (overturning fine for religious harassment of private employee that violated state religious-freedom guarantees).

Putting aside religious freedom and the Constitution, the ruling is not based on a reasonable reading of New Mexico’s gay-rights statute, given that that law only bans discrimination in “public accommodations,” not in all contracting.  It is strange to label a wedding photographer as a “public accommodation,” a term usually reserved for impersonal, non-selective businesses that take all comers, like movie theaters, hotels, and museums. The California Supreme Court refused to treat the Boy Scouts as a public accommodation in Curran v. Mt. Diablo Council of Boy Scouts (1998), even though though the Boy Scouts are a relatively large and impersonal entity with some commercial operations; in their concurrences, Justices of that court noted that doing so was supported by the principle that statutes should be read narrowly to avoid potential constitutional problems.

Moreover, the statute’s text only bans discrimination based on customers’ sexual orientation, not based on the type of ceremony they wish to have filmed (the lesbian couple’s commitment ceremony versus a wedding). The photographer did not want to take pictures of the commitment ceremony, i.e., promote a particular event. Discrimination based on the type of event is not automatically discrimination based on the would-be customer’s sexual or racial category: it would not constitute discrimination based on a customer’s religion for a gay photographer to refuse to photograph a religiously motivated anti-gay demonstration by a gay-hating minister like Fred Phelps, not would it constitute discrimination against blacks or women for a photographer to refuse to videotape a feminist or Nation of Islam event. (Even liberal Arlington County, Virginia, recognized this 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, illustrating how unlike traditional “public accommodations” they truly are. And a 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 commitment ceremonies is not itself discrimination.

The clash with the First Amendment and religious freedom resulting from a ban on private-sector sexual orientation “discrimination” is not unique to New Mexico, but has occurred in many of the other states that have laws banning private-sector discrimination based on sexual orientation. (Although the clash in some of those states resulted from the anti-discrimination statute itself, rather than — as in New Mexico — judicial activism stretching the reach of the statute.)  For example, the Wisconsin courts punished women who wanted a roommate of the same sex and sexual orientation, see Sprague v. City of  Madison (1996), even though a federal appeals court in a different part of the country later ruled in Fair Housing Council v. Roommate.com that roommate choices like that are protected by the First Amendment’s freedom of intimate association. The New Jersey courts ordered the Boy Scouts to include as an assistant scoutmaster a gay activist who disagreed with the Boy Scouts’ teachings, forcing the Boy Scouts to run up millions in legal bills before they managed to obtain a narrow victory in the U.S. Supreme Court by a razor-thin 5-to-4 vote. This ongoing clash between the First Amendment and private-sector laws forbidding sexual-orientation discrimination is something to keep in mind as Congress weighs the Employment Non-Discrimination Act, a proposed federal ban on private discrimination based on sexual orientation, which is the subject of a June 12 committee hearing in the Senate entitled “Equality At Work: The Employment Non-Discrimination Act.”

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