One of the “nightmare scenarios” invoked in the rear-guard action against same-sex marriage is that private businesses who refuse to participate in same-sex marriages will be subject to suit. This is not a bogeyman, it’s quite real. And the case that is usually either first or second on the list of examples of these “nightmare scenarios” just got affirmed today: the New Mexico Supreme Court today affirmed that businesses holding themselves out to the public are indeed subject to anti-discrimination laws. Whether it’s such a nightmare or if it’s really the right result? I have an opinion, but so do you.
I’m breaking down the whole case for you here. While I’ll not conceal my opinions as we go, my aim is to be more descriptive than prescriptive until a few comments towards the end.
(Also, please note an interesting news update as of August 23, 2013.)
1. The Case
Elane Photography is a limited liability company, not a natural person, based in Albuquerque, New Mexico. Its owners, Elaine and Jonathan Huguenin, do much of the business’ work themselves, and they are Christians who believe that marriage is the sacred union of one man and one woman. They created a policy of only offering their services in a fashion that is consistent with their personal religious beliefs. The business holds itself out to the public and actually does engage in most business documenting its customers’ “significant life events,” such as graduations, weddings, and the like.
The business advertises its services to the general public and its advertisements do not contain an explanation of its policy of refusing business inconsistent with its owners’ religious beliefs. Its advertising venues include the phone book and the internet. I have been unable to find pictures of its pre-2006 advertisements to see if they contain a fish symbol, often used by businesses owned by Christians to advertise their religion and presumably in an effort to attract fellow Christians to do business with them.
Vanessa Willock was† involved in a serious romantic relationship with another woman in 2006, and they agreed to a commitment ceremony in lovely Taos. Ms. Willock solicited Elane Photography to photograph the ceremony, and on behalf of the company, Ms. Huguenin declined. Specifically, Ms. Huguenin said in an e-mail that Elane Photography “does not offer [its] photography services to same-sex couples. … Yes, you are correct in saying we do not photograph same-sex weddings.” The next day, Ms. Willock’s partner surreptitiously inquired about a wedding, not mentioning that the was asking about a same-sex ceremony, and was advised by Ms. Huguenin that the company would photograph a wedding, quoting a fee.
Ms. Willock found another photographer for the ceremony, but also filed a complaint about Elane Photography’s refusal to serve her and her partner with the New Mexico Human Rights Commission as a form of sexual orientation discrimination.
New Mexico’s state law was
and still is completely silent about the official status of same-sex relationships (Update: until August 23, 2013, that is). There are no civil unions or domestic partnerships, but there is no ban on them, either; New Mexico’s law is silent about same-sex marriage or recognition of such marriages or quasi-marriages from other states or other nations. Legally, the ceremony was of no significance in New Mexico; socially, it obviously mattered a lot to the people involved.
The applicable New Mexico Statute is NMSA 28-1-7(F):
It is an unlawful discriminatory practice for … any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person’s ability to acquire or rent and maintain particular real property or housing accommodation.
From this, there are three steps to go through. First, is Elane Photography a “public accommodation”? Second, was Elane Photography’s refusal to document the commitment ceremony “because of [Ms. Willock’s] sexual orientation”? Third and most interesting, even if the answer to the first two questions are “yes” and “yes” (which they pretty clearly are), then is there an overriding Constitutional right of free speech or religious practice that trumps the New Mexico Human Rights Act?
2. Religious Identity of a Business Entity
Is Elane Photography a “Christian business”? I say no, because a business entity is as incapable of possessing a religion as it is of practicing one. Elane Photography is not male or female, not white nor black nor Latino, not Christian nor Jewish nor Muslim nor anything else. Its owners are possessed of these and other demographic attributes, but it is devoid of these. It is a business entity.
A church or its cognate like a temple or a mosque might be an inherently religious entity. Such an entity like a church exists for the purpose of promulgating a religion and inducing natural persons to practice that religion.
But a photography company exists for the purpose of enriching its owners through offering a service. The question is not settled, at least as to Federal law — the Third Circuit very recently announced “for-profit, secular corporations cannot engage in religious exercise” in Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs., (3d Cir. July 26, 2013, No. 13-1144, slip op. at 11, not yet published in F.3d) but the Seventh Circuit only a few months previously in Grote v. Sebelius (7th Cir. 2013) 708 F.3d 850, 854 said that “the [plaintiffs’] use of the corporate form is not dispositive of the [free exercise] claim.” I think the Third Circuit got it right, but clearly there are other opinions.
3. Public Accommodation
We know, however, that a business entity inherently engages in commerce. States can and do regulate commerce through law, imposing requirements of non-discrimination on the offering and acceptance of commercial contracts. And it’s well-settled that the state has the legitimate power to do so. If Ms. Willock were marrying someone of a different race than her, and Elane Photography said “No, we have a religious objection to mixed-race weddings,” this would be an easy call, wouldn’t it? As far as New Mexico’s statutory law is concerned, it is every bit as invidious to discriminate based on sexual orientation as it is to discriminate based on race.
Under New Mexico’s state laws, when a claim is made for discrimination, the state agency may make its own finding and did so here. No monetary damages were sought by nor awarded to Willock, although her attorneys won $6,637.94 in attorney’s fees and costs. Elane Photography appealed to the court system, losing at the trial court level and then appealing. The intermediate appeals court in New Mexico also handed Elane Photography a loss too.
So, is Elane Photography a “public accommodation”? This is pretty standardized under anti-discrimination laws at the state level around the country as well as Federal anti-discrimination laws. A “public accommodation” is “any establishment that provides or offers its services . . . to the public, but does not include a[n] . . . establishment that is by its nature and use distinctly private.” NMSA 28-1-2(H). Bona fide private clubs or an “establishment that is by its nature and use distinctly private” are not public accommodations. The New Mexico court was clear: “…a business that elects not to offer its goods or services to the public is not subject to” anti-discrimination laws.
Elane Photography argued that the uniquely expressive and artistic nature of its services ought to exempt it from being considered a public accommodation, but this failed. The court found no exception in the law for artistic businesses. Just because what you do involves a degree of artistic discretion does not mean that you do not offer your services to the general public, and therefore an artist can be a public accommodation. Elane Photography is one of such.
4. Discriminatory Motive
Whether the reason for Elane Photography’s refusal to photograph the event was Ms. Willock’s sexual orientation seems abundantly obvious on the facts. Ms. Huguenin’s e-mails make very clear that if the ceremony is for a same-sex couple, the company would not do it, but when that was not made clear, the company was willing to do it. But the argument was made anyway.
[We] declined [Willock’s] request because [our] company policy and [our] owners’ sincerely held religious and moral beliefs prohibit photographing images that convey the message that marriage can be defined other than the union of one man and one woman. … If, instead, for example, Willock had asked [us]to take portrait photos, the[n we] would have photographed her.
That argument flew like a lead balloon:
This argument … attempts to justify impermissible discrimination by distinguishing Willock’s participating in a same-sex commitment ceremony from her status as a member of a protected class and is without merit. In this context the United States Supreme Court has “declined to distinguish between status and conduct.” Christian Legal Soc’y v. Martinez, ___ U.S. ___, ___, 130 S.Ct. 2971, 2990 (2010); see also Lawrence v. Texas , 539 U.S. 558, 575 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.”). “While it is true that the law applies only to conduct, the conduct targeted by the is law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.” Lawrence, 539 U.S. at 583 (O’Connor, J., concurring); see e.g., Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).
Elane Photography invoked a hypothetical about an African-American photographer refusing to photograph a Ku Klux Klan event, to which the Court said, “… [membership in] the Ku-Klux-Klan is not a protected class. Sexual orientation, however, is protected.” I think the quote from Bray nicely hits the point here.
So that takes us to the part I think is interesting.
5. Claims of Constitutional Protection
The whole point of a legal privilege is that you can say you did something and then say, “So what?” In this case, that means, “I have a right to discriminate against you.” And in some situations, and for some reasons, you do have a right to discriminate against others. You can discriminate for reasons not prohibited by law — you can discriminate on the basis of inability to pay, for instance. And you can discriminate for activities that are protected, like deciding who you want to marry.
But as for who you do business with? That’s something that affects more than you, and that’s something that has long been held to be subject to regulation by the government. Heart of Atlanta Motel, Inc. v. United States (1964) 379 U.S. 241, 256-258.
So — is Elane Photography engaged in some sort of conduct that is protected? I see three possibilities, although only two were raised in the case.
Freedom of expression, otherwise known as freedom of speech, was what undoubtedly seemed most promising to Elane Photography. After all, there is little doubt that there is a substantial degree of artistic discretion and expression that goes in to photography. Photography can be one of the most powerful forms of art out there. So it’s likely beyond debate that photography can be, if not inherently is, a form of speech.
The government may no more compel speech from someone who does not wish to speak than it can silence someone who does wish to speak. West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624. It also protects people from being compelled to support someone else’s speech with which that person does not agree. Abood v. Detroit Board of Education (1977) 431 U.S. 209. Is not compelling Elane Photography to offer its services where it does not wish to provide them the same thing as compelling speech? Well, it turns out that the compelled speech doctrine only applies to political speech and does not apply to commercial speech. Glickman v. Wileman Bros. & Elliot (1997) 521 U.S. 457. But that’s my research.
But the kind of speech that Elane Photography is engaged in, to the extent it is engaged in any speech at all, would be “work for hire,” which means that Elane Photography is not itself expressing anything, but rather it is being used as a means by which its clients are expressing themselves. So just like a newspaper or a television station has limited, and regulated, discretion about what kinds of advertisements it can or cannot accept, so too is Elane Photography subject to regulation in the kinds of speech it offers to make “for hire.” As a conduit for the speech of others, not a speaker in its own right, Elane Photography’s actions rather than its speech are being regulated, so there is no First Amendment violation.
The analogy was made to law schools which resisted having military recruiters in protest to the exclusion of gays from military service policy back when I was a law student, Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (2006) 547 U.S. 47: a law school (that accepts Federal student loan money) submitting to a legal requirement to allow the military’s JAG offices to recruit students is not being asked to approve of the military’s policy and indeed it is free to make clear its objection to particular policies. But it must still do what the law requires of it. See also Runyon v. McCrary (1976) 427 U.S. 1960 (private school must provide equal educational opportunity to all students regardless of race but may continue to officially advocate segregation).
So here too, Elane Photography (or rather, its owners) must provide services as a public accommodation to anyone willing to pay in the public, but they remain free to say that they think marriage is a sacred union between only one man and only one woman.
I like my own reasoning better — work for hire is inherently commercial speech, and whatever free expression rights are in question belong to the hirer, because that is the person who is actually expressing an idea. But I digest these things so y’all can dig in to them and decide for yourselves.
The second argument where Elane Photography put weight was the idea that it was engaged in a religious activity. As I noted above, I dismiss this out of hand because we’re talking about a regular for-profit business, not a church and not a natural person.
To the extent that the business as a practical matter is executed by the Huguenins themselves, and they as individuals do have Free Exercise rights, the New Mexico court used reasoning paralleling my own. They found a good cite in United States v. Lee (1982) 455 U.S. 252, 253 & 261:
When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes [that] are binding on others in that activity. … [E]very person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs.
I also see an issue because in their own description of their religious beliefs, the owners of Elane Photography do not describe themselves as being under a duty to object to a same-sex union — only that they believe marriage is between one man and one woman and therefore two women cannot have a religiously valid marriage.‡ So based on their own description, I don’t see a conflict between the individuals’ beliefs and the service they were asked to render.
The New Mexico court reasoned that the state anti-discrimination law is one of general applicability and that it had been drafted neutrally with regard to people like the Huguenins. So under Employment Division v. Smith (1990) 494 U.S. 872 and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) 508 U.S. 520, a lower standard of review than strict scrutiny applies, meaning that the state need only offer a rational basis for the anti-discrimination law, which it clearly can do.
I confess I’m unhappy with this reasoning — while I like the result, I think that the confluence of the Lee, Smith, and Lukumi Babalu cases too readily dismisses the strength of the religion clauses. If the invocation was of an infringement on free exercise, the test from Sherbert v. Verner (1963) 374 U.S. 398 could and should have been used:
1. Does the individual claimant have a sincere religious belief? (Almost always “yes,” and no reason to even suggest otherwise with respect to the Huguenins, although as I note elsewhere, a business entity is not capable of having religious beliefs at all.)
2. Does the state law substantially burden that religious belief? (Questionable here, as the challenge here another photographer could have been hired for the ceremony, and the ceremony did not actually implicate the religious belief asserted.)
3. If the first two questions are answered in the affirmative, does the state have a compelling interest that the law advances? (It’s not clear to me whether an antidiscrimination law is “compelling” on the same order as the preservation of human life, although the regulation of economic activity is clearly within the core functions of a state’s government.)
4. Has the law been crafted in the manner that is the least burdensome to the exercise of religion? (This may or may not be the case here, and I can see arguments either way.)
But this test was found by the Supreme Court not to apply because there was no direct challenge to the state anti-discrimination law, and since the state of New Mexico was not party to the dispute, to the extent that a statute incorporated this test (see NMSA 28-22-3), that was irrelevant.
I’m not sure that’s right at all. Just because a state is not party to a suit does not mean it cannot weigh in — a state’s Attorney General and the United States of America generally always have a right to intervene or participate as amici curiae in any case they choose. Now, most states and all Federal courts have elaborate procedures in place to address constitutional challenges to statutes, and those were probably not done here (although I’m not 100% clear about that from the opinion) but I would hesitate to restrict the ability of any litigant to invoke the Constitution while still being careful about finding a conflict between the Constitution and the application of a law. And while the New Mexico statute embracing the Sherbert test may not apply to the legislature or the courts (see today’s slip opinion at paragraph 77) the First Amendment certainly does.
The antidiscrimination law can and probably would survive a Sherbert analysis. This kind of sidestepping lays a dangerous foundation for more pernicious sorts of cases in the future.
The third issue, apparently unraised by Elane Photography on appeal, is yet another First Amendment right — the right to freely associate with others. Again in the commercial context this right is substantially restricted as compared to the right of intimate association (the creation of a family) or a right of political association (the creation of a political advocacy group). Still, it would have been worth noting that Elane Photography would have had to have associated with people with whom the Huguenins have significant disagreement and that they would probably have been quite uncomfortable at the commitment ceremony.
The Supreme Court went a little bit out of its way to call out Elane Photography’s lawyer for failing to preserve and adequately brief issues on appeal, which I always hate to see even if I don’t like the lawyer or the position being argued.
6. Justice Bosson’s Concurrence
One of the Justices on the Court, Richard Bosson, wrote a special concurrence. I single out two excerpts from that opinion for your perusal, first paragraph 86:
In a constitutional form of government, personal, religious, and moral beliefs, when acted upon to the detriment of someone else’s rights, have constitutional limits. One is free to believe, think and speak as one’s conscience, or God, dictates. But when actions, even religiously inspired, conflict with other constitutionally protected rights—in Loving the right to be free from invidious racial discrimination—then there must be some accommodation. Recall that Barnette was all about the students; their exercise of First Amendment rights did not infringe upon anyone else. The Huguenins cannot make that claim. Their refusal to do business with the same-sex couple in this case, no matter how religiously inspired, was an affront to the legal rights of that couple, the right granted them under New Mexico law to engage in the commercial marketplace free from discrimination.
And then the headline-grabber, paragraphs 92 and 93:
On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.
In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship. I therefore concur.
That Justice Bosson seemed to take more seriously the Constitutional claims asserted by Huguenins speaks well of him. The grand question of various rights and social goods having to be balanced against one another is, my opinion, indisputable — but whether he struck the right balance or not is a question I leave to you.
The result seems legally inescapable, as demonstrated by the fact that Elane Photography has lost at every phase of the litigation, on the exact same grounds, every time. The question is not whether the decision is legally valid; the question is, has the law done us a disservice? Ought the law require this result?
I can see consistency with saying that the result here is bad if you’re also willing to argue that business owners should be able to invoke some kind of First Amendment right to do business with whoever they please for whatever reason they please. While sexual orientation isn’t the same thing as race, this state’s law affords it equal status, so if you’re going to say that Elane Photography ought to be allowed to not do business with Ms. Willock under the shield of its owners’ religious beliefs, then you necessarily are also saying that Elane Photography ought also to be able to refuse to do business with an African-American, precisely because she is an African-American, under the same aegis of a First Amendment right (association, expression, and/or religion).
In other words, to condemn this result, you must condemn the basic premise of laws prohibiting all forms of discrimination in private economic activity. I suppose you can do that if you wish, but I’m not willing to do that. Invidious discrimination in public accommodations has a tangible effect on commercial activity (that is to say, discrimination depresses economic activity, although my legal analysis would be the same if discrimination actually stimulated economic activity), and therefore is properly the subject of legal regulation.
It was legally and morally the right result. I just wish the whole court had taken on the Constitutional claims head-on the way Justice Bosson’s concurrence did.
† The intermediate New Mexico court’s opinion repeatedly refers to Ms. Willock’s relationship in the past tense, and does not identify her partner by name, although the Supreme Court opinion was not so coy.
‡ Even if they did say that they had a religious duty to object and obstruct the wedding, it wasn’t a wedding. For me, that disposes of the religious objection in this case entirely, but of course the same situation could easily arise with an actual same-sex wedding elsewhere. The New Mexico Supreme Court conflated the two terms, overtly using the terms “wedding” and “ceremony” interchangeably. Yet more proof, it seems, that “marriage” is a mark of social prestige which has no “separate but equal” cousin and thus to the extent a state is involved with conferring that social prestige, it must be evenhanded in so doing.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.