Recently, 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.
One 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:
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.