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Supporter of New Mexico Couple at Center of SCOTUS Challenge Buys Website, Attacks 'Queers'

6a00d8341c730253ef01901ef3deb8970b-800wiRecently, the debate over marriage equality--at least in the realm of state legislatures--has included lots of talk about religious exemptions, or which individuals and organizations are allowed to refuse to recognize same-sex marriages because of their religious beliefs.  

For example, while houses of worship and clergy members are free to refuse to solemnize a gay union--protected, of course, by the First Amendment--businesses such as wedding planners are bakers are not.  In most states, this is because of already-existing public accommodations laws which prohibit any business that is open to the public from discriminating on the basis of sexual orientation.

6a00d8341c730253ef0192acb2d4d9970d-300wiOne such state with a public accomodations law is New Mexico, where Elaine Huguenin, a photographer and opponent of marriage equality, last month suffered a unanimous defeat at the hands of the state supreme court, which ruled that "[W]hen Elane Photography refused to photograph a same-sex commitment ceremony, it violated the [New Mexico Human Rights Act] in the same way as if it had refused to photograph a wedding between people of different races." Huguenin, along with her husband John, are taking their case to the Supreme Court.

The Huguenin case is bound to be an interesting one, since the New Mexico couple is in fact basing its challenge not on grounds of religious liberty, but rather on free speech protections, arguing that the taking and arranging of photographs is a form of artistic and personal expression protected by the First Amendment.  As Adam Liptak, the Supreme Court reporter for the New York Times, wrote today, that makes the case a difficult one for both sides:

There are constitutional values on both sides of the case: the couple’s right to equal treatment and Ms. Huguenin’s right to free speech. I asked Louise Melling, a lawyer at the American Civil Liberties Union, which has a storied history of championing free speech, how the group had evaluated the case.

Ms. Melling said it had required difficult choices. Photography is expression protected by the Constitution, she said, and Ms. Huguenin acted from “heartfelt convictions.”

But the equal treatment of gay and lesbian couples is more important than the free speech rights of commercial photographers, she said, explaining why the A.C.L.U. filed a brief in the New Mexico Supreme Court supporting the couple whose commitment ceremony Ms. Huguenin had refused to photograph.

“This is a business,” Ms. Melling said. “At the end of the day, it sells services for photographing weddings. This is like putting up a sign that says ‘Heterosexual Couples Only.’”

The Huegenins have some unlikely allies, of sorts: the libertarian Cato Institute, along with law professors Eugene Volokh and Dale Carpenter--all supports of marriage equality--told the New Mexico Supreme Court to side with the photographers, writing, "Photographers, writers, singers, actors, painters and others who create First Amendment-protected speech must have the right to decide which commissions to take and which to reject."

It would seem, however, that not all of Elane Photography's supporters are quite so well-spoken.  Jeremy Hooper reported yesterday that "an enterprising supporter of the business'[s] right to discriminate went rogue and created his own site on the ElanePhotography.us domain."  The results aren't too pretty:

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It would be a big step for the U.S. Supreme Court to take up a case where a state high court had unanimously ruled on an issue of state law, and would almost certainly mean a majority of justices was leaning towards reversing the New Mexico ruling.  If they choose to do so, though, we can only hope that whoever's behind the ElanePhotography.us page doesn't suddenly decide to submit a friend-of-the-court brief on behalf of the photographers. Then again, maybe we should hope they do just that.

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Comments

  1. 58% of Americans agree that the photographers in this case should be reserved the right to discriminate. Most Libertarians are for it and we know Republicans are. Most Americans think it's OK to discriminate against our community on religious grounds. That's just the way it is. Anyway, if this case is overturned, then you cane expect to see the right-wing really aggressively target discrimination cases, and non-discrimination laws in general.

    Posted by: Francis | Nov 19, 2013 8:42:07 AM


  2. Technically, the issue now before the Supreme Court is not "an issue of state law." The Supreme Court cannot hear and decide issues of state law. It is an issue of federal law -- whether the First Amendment to the United States Constitution protects Elane Photography's right to discriminate, and whether this federal constitutional protection trumps state nondiscrimination law. The Supreme Court is required to take the state-law issue as the New Mexico Supreme Court decided it, and thus, must start from the assumption that New Mexico's nondiscrimination law does, in fact, prohibit Elane Photography's discrimination.

    Posted by: Anonymous | Nov 19, 2013 8:48:06 AM


  3. I experienced a landlord change the price of a vacant apartment when he saw the "couple" were both male. A realtor stopped showing a house when we clarified we were not brothers, the exact words, "I'm not selling a house to people like you." While this was not right, why would I want to force people like this to take my money? Is there only one photographer in New Mexico? A court action to force someone to hide the bigotry? It's not going to change the way people think. If a service provider is bigoted,make it public. I am glad they show it up front so I can avoid giving even a dime of business. Didn't we learn anything from the shopping scene in Pretty Woman?

    Posted by: Christopher | Nov 19, 2013 8:56:21 AM


  4. I think this case is one of principle, more so than it is about money.

    Posted by: Francis | Nov 19, 2013 9:00:54 AM


  5. Cake makers will now be kitchen artists, and chauffeur services will be automobile artists, and hotels will become venue artists wherein all their business activities are an expression of...something. Look, when a photographer snaps photographs of the family of a wedded couple for money, it is a business transaction. They are simply performing a service. Now, they can perform their service well or poorly, and create beautiful or ugly photographs, but in doing this it remains a service industry. If some photographer does photographs where he is not hired to perform the service, then I will allow that what they are doing may be considered a form of "speech."

    Posted by: blaine.d | Nov 19, 2013 9:01:13 AM


  6. The First Amendment argument is a bit flimsy, especially when set up against the non-discrimiation law. I don't think the Supreme Court will choose to weigh in on the case either.

    Posted by: Jack M | Nov 19, 2013 9:04:23 AM


  7. No one is restricting anyone's right to express themselves through photography. The "free-speech" issue is clearly a subterfuge.

    The issue is whether a business—having agreed that they will perform a service for a fee—is free to do that for only certain preferred classes of people.

    Posted by: Vint | Nov 19, 2013 9:05:51 AM


  8. Christopher: You won't see the point of this at all. It's not a question of force anyone, it's a question of not having the right to discriminate based on your religion.

    People who live in big cities have a lot of shops to make the shopping, this is not the case of people who live in small villages. If the owners of that shops have the right to discriminate they'll be forced to search for the things they wanted in other village, and they could face the same problem in that village.

    I frankly doubt the couple really want Eleine to take the pictures of their wedding now they know she is a bigot, but that doesn't make what she did right

    Posted by: jjose712 | Nov 19, 2013 9:06:17 AM


  9. No offense intended to any photographers here, but taking photographs of a wedding reception is not a form of artistic and personal expression. If Ms. Huguenin believes her party photos are art, then she should take them not for a fee but with the aim of perhaps seeing them in an art gallery. She is not producing art, she is providing a service with her craft.

    Posted by: Sam | Nov 19, 2013 9:41:52 AM


  10. If bigots get their way and religious views are a legal basis for discrimination then it will only be a matter of time before they refuse to serve Jews.

    Let's see if that gets to the Supreme Court. I imagine certain members will twist themselves into pretzels trying not to look like Hitler in a black robe.

    Posted by: Slippery Slope, Anyone? | Nov 19, 2013 10:14:25 AM


  11. Have to agree with Sam. Are prom pictures art? How about framing photos? Can the frame shop refuse to frame my photo if it 'offends' him? Can an art gallery refuse to sell to me because she doesn't want her art in 'that' kind of home?

    Posted by: Christopher | Nov 19, 2013 10:15:28 AM


  12. An artist subjugates their "free expression" once they contract with an employer. Just as reporter has "freedom of the press" on their side, their employer still dictates what they will report on.

    As "artists" for a fee, these photographers give up their "free expression" to the will of those paying their fee. Period.

    Posted by: Phoenix Justice | Nov 19, 2013 10:25:59 AM


  13. Baseline truth: She operates a BUSINESS that sells a service to the public so therefore all anti-discrimination rules apply.

    Does SHE pay models to pose for her "artistic" photographs? No. THEY pay her for services rendered and her religious beliefs have fvck-all to do with it.

    Now, while I agree that I'd never WANT to hire this fundie nutball and give her any of my money, if she puts out a shingle and wants to sell her goods or services to the PUBLIC then she needs to abide by the laws that govern such things. It would be no different than if she'd refused to take photos of a Jewish, Muslim, or interracial couple.

    Posted by: Caliban | Nov 19, 2013 10:30:05 AM


  14. There are sick bigots in the world and always will be. We do not however have to accept their sickness as the norm.

    The attempts to paint a celebration as anything less and withhold benefits we are entitled to through marriage will fail. Doubly so if being organized by the minds behind elanephotography.us .

    Posted by: Hey Darlin' | Nov 19, 2013 10:32:12 AM


  15. Yes, photography is an artistic expression but that couple's use of photography was for commercial profit and not for artistic expression. That should be obvious to anyone. SCOTUS will deny them.

    Posted by: jamal49 | Nov 19, 2013 10:49:37 AM


  16. Wedding photographers are not really artists. They don't pick their own models and and motives, but just shoot standard poses and events.

    Posted by: Steve | Nov 19, 2013 10:51:08 AM


  17. And isn't a burning cross just an 'incendiary sculpture'?

    Posted by: Hansel Currywurst | Nov 19, 2013 11:11:42 AM


  18. Please stop with the, "Why would I want to force people like this to take my money?" It's on every thread like this, and it completely misses the point. The point is, non-discrimination laws exist for a reason. If you give some people a pass (and it's always the religious who seek a pass), why bother having the laws? @Christopher, is your real estate agent still discriminating against gay couples because no one has taken action against him?

    When you are a business (a public accommodation), you are expected to abide by the public accommodation laws of your state. If those laws specify that you cannot target a group you don't like (for whatever reason) for discrimination--in other words, hang out a NO _ ALLOWED sign--you are expected to treat your potential customers equally, without personal prejudice. If you can't do this, you should not operate a business.

    And it is very much a stretch to say that wedding-photography-for-profit is a form of artistic expression rather than a business. Could they also argue they find a particular race artistically objectionable and refuse to take any clients of that one race?

    Posted by: Ernie | Nov 19, 2013 11:21:09 AM


  19. Does the wedding photographer hire the bride and groom so he/she can take their photo? Does the photographer pick the dress the bride is wearing? Does he/she pick the color of the tux? How the brides hair is done? The bridesmaids dresses? Does the photographer own the photos and then sell them one by one to the bride and groom or are they paid upfront to TAKE photos?

    Seem the idea that its 'artistic expression' is being stretched, especially when the photographer is a hired gun.

    What's next, someone who walks into an establishment owned by a gay man or woman uses their service and then refuse to pay on religious grounds because they don't want to encourage the owner's "lifestyle"? We've already seen bigots refusing to tip people they believe to be gay (why can't they print these people's names???)

    In this case, it's very clear, it's a business, a craft at best but certainly not art. And if you're running a business in this state you don't get to discriminate.

    Posted by: Bart | Nov 19, 2013 11:38:53 AM


  20. Vint - The first Amendment is much more than freedom of speech. Implicit is the Freedom Of Association. The gay community is built upon defining ourselves apart from society as a whole while being part of the whole of society. Absent the ability to create "gay spaces" and places where gay people gather or work towards a common goal, then it would be impossible to generate gay political power or equality.

    We do not surrender our rights to the government to further the social agenda of the government or some part of that government. The right to Freedom Of Association is also reciprocal: straight people can exclude us and we can exclude them.

    We have no right to use the force of government to compel a photographer to take our picture, or a baker to cook for us. They have no right to demand that we do their hair, or sell them a plate of noodles.

    Please get this people. It's important. You think you are doing the right thing in "fighting for equality" but what you are fighting for is government control. Do you really want the government deciding who you must associate with?

    Posted by: Endorado | Nov 19, 2013 12:05:10 PM


  21. The owner of the website is one Tom Alciere (easily found using whois). His facebook page is riddled with nutjob posts, including a few ramblings about how the drinking age laws are more of a hate crime than anything done against homosexuals. He's a real winner, this one.

    Posted by: DarrenW | Nov 19, 2013 12:06:10 PM


  22. Endorado, who is actually Rick, routinely goes out of his way to defend bigots with his own homophobia/republican views. He's so interested in small government that he's willing to sell out the freedoms and happiness of his fellow LGBT peoples. Strangely he used really inoffensive language to make his point. Endorado was crated specifically to post extremely offensive comments. So just you guys wait for this pathetic troll to show his true colors.

    Posted by: Tyler | Nov 19, 2013 1:19:55 PM


  23. @ Endorado; I guess according to you I can refuse to serve anyone wearing a cross/crucifix, anyone who mentions they are a member of the unholy Abrahamic Triumvirate, anyone at all really. Yes? I suppose all gay hairstylists, makeup artists, wedding planners, party planners, home decorators, realtors, lawyers, whatever, can refuse to serve anyone for any reason.
    Reminds me of the movie "Fight Club", when Brad Pitt gives a warning to a guy on the ground something to the effect, 'We take out your garbage, we do your taxes; do-not-f-with-us..."
    Gays are everywhere. Do you really want us to start refusing service to people we perceive to be against us en-masse?

    @ Tyler; It really doesn't matter if Endorado is also Rick or not. Anti-gay commenters are part of a symbolic hydra-headed snake type thing. Sometimes the hate comes from different heads, sometimes it's many hateful voices coming from the same head. It's all discourse from the same basic beast, however.

    Posted by: Boner | Nov 19, 2013 2:50:26 PM


  24. I don't understand the statements in the article that suggest this is a tough case. It's not. These are not photographers indulging their own individual artistic vision and then hoping to sell the final product as "art." They are commecial, for-hire photographers, documenting other people's events or portraits. As such, their own free speech rights are not at issue. If they want to create their own self-expressive works, they are free not to create photographs ot two men or two women in love. As photographers who hire themselves out to others, they must comply with nondiscrimination laws.

    Posted by: ajax28 | Nov 19, 2013 5:11:36 PM


  25. Boner - Yes, I support your right to refuse service to anyone for any reason in your own place of business. If you work for the government, you must treat everyone equally.

    Let me ask you this: What is slavery? You might say that it's work for no compensation, but that is not true. Slaves got compensation: food, clothing, shelter, and often an allowance. So what made them slaves? Because they were required to do what someone else told them to do or they would be punished. Right?

    So tell me again what you want to see happen to a photographer who refuses to work for gay people. You want her fined? You want her business seized? You want her whipped? Is she your slave?

    Posted by: Endorado | Nov 19, 2013 5:18:37 PM


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