Howard Friedman, Religion Clause
In Elane Photography, LLC v. Willock, (NM Ct. App., May 31, 2012), a New Mexico state appeals court held that a photography firm’s refusal to provide its services to photograph a same-sex commitment ceremony violates the New Mexico Human Rights Act’s prohibition on discrimination in public accommodations on the basis of sexual orientation. According to the court:
Elane Photography’s owners are Christians who believe that marriage is a sacred union of one man and one woman. They also believe that photography is an artistically expressive form of communication and photographing a same-sex commitment ceremony would disobey God and the teachings of the Bible by communicating a message contrary to their religious and personal beliefs.
Rejecting Elane Photography’s free expression arguments, the court held:
the mere fact that a business provides a good or service with a recognized expressive element does not allow the business to engage in discriminatory practices…. While Elane Photography does exercise some degree of control over the photographs it is hired to take… this control does not transform the photographs into a message from Elane Photography.
The court also rejected Elane Photography claim that applying the Human Rights Act to it would violate its free exercise of religion protected by the U.S. and New Mexico constitutions. It held that the statute is a neutral law of general applicability. Finally it rejected a claim under the New Mexico Religious Freedom Restoration Act, concluding that it applies only to suits in which government agencies are the adverse parties, not to suits against a private individual or business. Volokh Conspiracy has an extensive discussion of this aspect of the case, as well as a posting on its more general holding.
Judge Wechsler filed a concurrence in the case, arguing that the New Mexico constitution’s free exercise clause is broader than that in the First Amendment, but also concluding that Elane Photography had not properly preserved that issue for appeal. WND reports on the decision.