Last week, the California Supreme Court in a 4-3 decision struck down a state law banning same-sex marriages as unconstitutional, saying in part that the capacity to enter into a stable, loving relationship and to “responsibly care for and raise children does not depend upon the individual’s sexual orientation.”  It was a ruling applauded by many commentators as a long-overdue recognition that homosexual couples enjoy the same rights and civil liberties as any other American.  But meanwhile, in nearly New Mexico, another legal clash involving constitutional rights and gay marriage is taking place, with a decidedly different but no less provocative spin on things.

Elaine Huguenin and her husband co-own Elane Photography, an Albuquerque, New Mexico private business that specializes in wedding photography.  Although she occasionally subcontracts some of the work, Ms. Huguenin handles most of the photography herself.  In September, 2006, Vanessa Willock contacted Elane Photography about using their services for her upcoming same-sex commitment ceremony.  She received an email back stating that the business only photographed traditional weddings.  When she wrote back for clarification on what that meant, Ms. Willock says she got a reply from Elane Photography stating “we do not photograph same sex weddings.”  Ms. Willock filed a charge of discrimination with the New Mexico Department of Labor (Human Rights Division), alleging that Elane Photography had violated New Mexico’s Human Rights Act.  This state law forbids discrimination on the basis of race, color, gender, age, religion, national origin, disability or sexual orientation.  In April, 2008, the New Mexico Human Rights Commission ruled in Ms. Willock’s favor holding that Elane Photography had indeed violated this state anti-discrimination law, and directing the business to pay over $6,600 in attorney’s fees and court costs.

Unfortunately, the Commission’s ruling doesn’t shed any light into the reasoning behind the decision.  However, we can safely assume at least two things:  first, that the Commission felt that a refusal to photograph a lesbian commitment ceremony was enough to constitute discrimination on the basis of sexual orientation; and second, that operating a photography business constitutes some form of “public accommodation.”  New Mexico law defines a public accommodation as “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.”  The clearest examples of a public accommodation are hotels and restaurants, and not surprisingly many of the earliest civil rights decisions banning segregation were ones striking down the racially discriminatory practices of hotels and eating establishments.

Even if we assume that a private individual operating a wedding photography business is somehow providing a “public accommodation,” an even greater constitutional problem exists with the New Mexico Human Rights Commission’s decision.  Other constitutional rights are involved here – rights belonging to Elaine Huguenin.  For example, New Mexico’s Religious Freedom Restoration Act protects an individual’s rights to engage in conduct – or, for that matter, refuse to engage in conduct – that is substantially motivated by religious belief.  The Act, which is similar to federal law as well as statutes in place in roughly half of the states, provides that “a government agency shall not restrict a person’s free exercise of religion unless…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.”  Elaine Huguenin’s religion teaches her that homosexuality is wrong, and that marriage is between one man and one woman.  If Elaine Huguenin believes that photographing a same sex commitment ceremony would be contrary to her religious convictions, is she  not entitled to be free from governmental interference with those beliefs?

If one contends that the state of New Mexico is allowed to restrict Elaine Huguenin’s free exercise of her religious beliefs, then it can only be because it is somehow essential to furthering a “compelling governmental interest,” and because the action taken against Ms. Huguenin is the “least restrictive means” of doing so.  But this is a pretty tough case to make.  Even if we assume that allowing people equal access to wedding photography services advances a compelling government interest, it hardly stands to reason that punishing Elaine Huguenin is the least restrictive way of serving that interest.  Presumably, there are lots of other wedding photographers in the Albuquerque area, many of whom likely have no faith-based qualms about covering a same sex commitment ceremony.  And if the state of New Mexico genuinely believes that it has a compelling interest in vindicating the rights of gay and lesbian couples to be free from discrimination based on sexual orientation, then why do the state’s own marriage laws discriminate against same sex couples (to date, only Massachusetts and now California recognize gay marriage, as opposed to domestic partnerships or other unions)?

Besides freedom of religion, there is another constitutional argument to be made.  Photography, even wedding photography, is an art form, as deserving of First Amendment protection as painting, sculpture, or writing.  Long before this controversy, Elaine Huguenin was making choices about what she would or would not choose to photograph – refusing, for example, to take photographs that glorified violence against women, pornography, abortion, or same sex marriage.  Those choices are protected by the First Amendment.  The Supreme Court has held that the government cannot compel people to express views that they do not share, whether it’s saluting the flag (West Virginia Bd. Of Education v. Barnette) or featuring the state slogan “Live Free or Die” on one’s license plate (Wooley v. Maynard).  Despite this constitutional right to exercise her artistic judgment, the state of New Mexico is, in effect, informing Ms. Huguenin that she must create art works that she does not choose to create.  This is like telling a Christian bookstore that it can’t choose to restrict itself solely to Christian themes in what it sells, or telling a freelance writer that he can’t decline an assignment to write something he considers to be offensive or contrary to his beliefs (like writing a Scientologist tract).  I have the freedom to choose what I will write about and which topics I will decline.  Just as a freelance writer cannot be compelled to write advertising copy for an abortion clinic or a brochure for a cruise ship company catering to gay couples, Elaine Huguenin should neither be compelled to provide photography services for a same sex commitment ceremony, not subjected to civil liability for making a choice that is hers as an artist to make.

In the past couple of years, a number of films have been released that are sharply critical of the Bush administration and the war in Iraq.  Could our government decree that filmmakers shall restrict themselves to only positive portrayals of this conflict?  Of course not.  Then why does the state of New Mexico, in the case of Elaine Huguenin, seemingly act as though the First Amendment does not extend to its borders?  Perhaps because, in its rush toward political correctness and its currying of favor with special interest groups, the New Mexico Human Rights Commission forgot that the U.S. Constitution affords rights to all – even these individuals with whom it does not agree.

John Browning is a partner in the Dallas office of Gordon & Rees, LLP.

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