A First Amendment Dilemma...Or is it?

This is a very interesting first amendment/ discrimination case that involves the ability of a photographer to select whom she photographs and the ability of a same-sex couple to find a business to photograph their ceremony.

Elaine Huguenin is the co-owner of Elaine Photography in New Mexico. In September of 2006, Vannessa Willock approached Elaine Photography to inquire about her services to photograph Willock's wedding ceremony, which was to be a same-sex marriage ceremony. Huhuenin responded that she only photographed traditional marriages and would not be able to capture the event. When Willock inquired about the meaning of "traditional marriage," Huhuenin responded that we (her and her husband) d0 not "photograph same-sex marriages."

After having her request denied, Willock then filed a complaint under New Mexico Human Rights Act and the New Mexico Human Rights Commission held that this action by Huhuenin violated the act. The photographer was fined $6,637.94 for refusing services.


Now, there are a few competing issues involved with this case.

First, is this a case of discrimination whereby a business, Elaine Photography, refused a customer because the business did not like a characteristic of the customer, which is in a protected class. If your business refused on the account of race, you would face a penalty for this. If a larger business were to deny this, they may not be able to get away with this or even for a family portrait. If you were to apply certain analogies, business and hotels would not be able to deny services based on sexual orientation so why would this photography studio: because it is a smaller business or because its business relates to artistic expression?

Second, do the facts of this case suggest that the photographer has a first amendment right and that no one should be able to force her to accept a job just as no one would be able to force her to write something she did not choose to or speak about something she did not choose? This follows the liberty of conscience argument, which if the first amendment is to mean something, it should mean this. Photographs are artistic expressions, even the mind-numbing wedding photos. While there is no clear precedent for this, if the government cannot make children salute the flag or say the pledge of allegiance, then it would not be unreasonable to suggest that the government cannot force you to take pictures via the New Mexico Human Rights Act. Or is this like the Boy Scouts controversy where the group refused to allow a homosexual to be a troop leader?

Further complicating this is that same-sex marriages are not recognized in New Mexico. This may provide an out for the photographer.

There are clear points at which the analogies break down, such as children are compelled to go to school. While business restrict the speech of employees and business can limit the speech of customers (as malls can kick people out because it is private, not public, ground), there is no precedent to suggest that a business can deny services to a customer based on the views of the business.

While I know photography, such as the works of Ansel Adams or our Iconic images, constitutes art, is the claim that wedding photography is art diminished by the fact that the work is commissioned? John Berger in Ways of Seeing would argue that wedding photography, just liking paintings in the 16th & 17th centuries, would not be art.

Third, there is a very delicate balancing argument between competing legal claims, artist expression and legal discrimination. Which is more important, the art or the commerce? If this goes to a court and side with the photographer, do you strike the law down as being unconstitutional or just provide a narrow decision, hoping this issue will not resurface. This will become a court case and wonder through the legal system, most likely to the 9th circuit. If it reaches there, it may reach the Supreme Court because of the contrasting ideologies between the 9th Circuit and the Supreme Court.

Fourth, if the photography studio in question uses other employee or sub-contracts out some of the jobs, could this be one of those jobs? This way, the business does not discriminate but the Elaine does not have to violate her liberty of conscience.

Fifth, if you are the person who contacted the photography studio, would you even want the photographer to work your wedding? If the photographer does not believe in same-sex marriages, do you want someone who may work under conditions of bad faith?

I am quite unsure of what I think in this case. For some reason I think that there may be a distinction between the photography studio and a hotel or restaurant. However, every time I try to rationalize that distinction, my arguments do not stand. Maybe this is just my draw to my position on the first amendment. However, in this case, I am unable to state that a business activity, even photography, is "speech" where I can argue that campaign donations constitutes speech. The analogy would be if Willock did not choose Elaine Photography because of her views rather than Elaine Photography not considering to offer services to Willock because of the Studio's position.

Pragmatically, I hesitantly think four and five are the best positions. I think that the photographer in question is discriminating and, further, is not being smart with her business. If she opposes same-sex marriage, see if you can contract it out or have another employee work the wedding. If she refuses, then she should face some repercussions over her actions, especially social protests. If you run a business, which Elaine Photography is, then the person should not be able to discriminate as she would not be able to if an interracial couple inquired about services or she would not be able to if she ran a hotel or restaurant.

Additionally, if I am Willock, there is no reason why I would want this photographer at my wedding and a complaint against them seems slightly vindictive though deserved because of the discrimination. If I find someone who wants to discriminate against me, I do not believe I could trust them to do high quality work.

How do others see this case?

Thanks to the Volokh Conspiracy for the inspiration for this post.