Today the Supreme Court announced that it had declined to hear the appeal of an Albuquerque, New Mexico wedding photography studio which had refused to provide services to a same-sex couple that attempted to hire them for a wedding ceremony and reception:
The Supreme Court declined on Monday to consider whether a New Mexico photographer had a free-speech right to refuse service to a same-sex couple who wanted her to record their commitment ceremony.
Without comment, the court said it would not review a decision by the New Mexico Supreme Court that the denial of service violated the state’s public accommodations law, which bans discrimination by those offering their services to the public.
The New Mexico decision had prompted some states, such as Arizona, to propose laws that would protect companies and individuals who say providing some services to same-sex couples would violate their religious beliefs.
The case at the court came from Elaine and Jonathan Huguenin, whose company, Elane Photography, refused service for the 2007 commitment ceremony of a lesbian couple, Vanessa Willock and Misti Collinsworth.
The Huguenins said they would “gladly serve gays and lesbians” by taking portraits. But photographing same-sex marriages or commitment ceremonies would “require them to create expression conveying messages that conflict with their religious beliefs,” according to their petition to the court.
The state human rights commission found that the Huguenins violated the New Mexico Human Rights Act, and the state supreme court unanimously upheld the decision.
“When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races,” the court said.
In their petition, the Huguenins and lawyer Jordan W. Lorence of the Alliance Defending Freedom mentioned religion frequently. But their plea did not cite constitutional protection of their right to freely exercise their religion. Instead, they rely on another part of the First Amendment: their right to free speech.
Elaine Huguenin’s work is artistic expression, the petition said, and she cannot be forced to “communicate messages antithethical to her religious beliefs . . . through government coercion.”
As I’ve noted in the past, trying to guess why the Supreme Court decided not to take a case is an exercise fraught with the probability of error. At the most, all we can really say here is that there were not four Justices who voted in favor of accepting the case since that is all that is required for the Court to grant a Writ of Certiorari. What those reasons might have been is something that, in the end, only the Justices themselves could tell us, and they most likely never will. The most common conclusion people reach is that one side or the other of the Court’s ideological balance did not want to take the case for fear that they’ d be on the losing side, while the other side was not sufficiently motivated to accept the case for one reason or another. More often than not, though, there is often some much more esoteric or technical reason for the denial of an appeal, especially in a case that at least at a glance seems like it has the potential to be a high profile case. There may be something about the procedural posture of the case that makes ruling upon it problematic from the Court’s point of view, or perhaps something in the record of the case that leads to the same conclusion. In this particular case, the fact that the underlying ruling being appealed, from the New Mexico Supreme Court, is based almost entirely on state rather than Federal law. While the appeal does raise issues of Federal law, it may be the case that the Justices decided that it was better to defer to the state courts in this particular case.
Whatever the reason for the denial may be, it seems fairly clear that this is an issue that the Court will have to deal with at some point in the future. With same-sex marriage quickly becoming the law of the land, there are liable to be additional legal clashes like the one in New Mexico coming in the future. We’ve already seen some of it this year with efforts in Arizona and Mississippi to give businesses broader protections for religious objections to state discrimination laws and that’s likely to be only the beginning. It’s important to note, however, that the New Mexico case was not strictly about religious beliefs, at least not by the time it got to the Supreme Court. Instead, the appeal to the nation’s highest court had adopted the freedom of speech arguments made by two proponents of same-sex marriage in a “friend of the court” brief filed in the New Mexico Supreme Court last year:
Note well that the libertarian Cato Institute and prominent law professors Eugene Volokh and Dale Carpenter — all supporters of same-sex marriage — had filed a friend of the court brief on behalf of the photographers, arguing that artists must not be compelled by the state to use their talent in ways that violate their conscience. There is simply no way not to see photography as an art. The New Mexico court disagreed. New Mexico does not have same-sex marriage; the ruling was not on marriage law, but anti-discrimination law. Still, the importance of this ruling is that it’s another example of courts establishing in jurisprudence that homosexuality is exactly like race for purposes of non-discrimination — that is, that the only reason to discriminate against homosexuals is irrational animus, as the US Supreme Court has been holding.
I would have granted First Amendment protection to an artist wishing to discriminate on the basis of race, or any other protected category. To compel a writer, photographer, painter, composer, or what have you, to put her talent into the service of something that violates their conscience is a serious wrong. If a gay photographer believed in good conscience that he could not photograph the wedding of Christian fundamentalists, then I think he absolutely should have the right to refuse, on First Amendment grounds.
The problem that the appellants faced in this particular case, of course, is that the Freedom of Speech issue wasn’t fully litigated in the courts below, and that is likely the reason the the Supreme Court declined the appeal in the end. At some point, however, the Court will have to rule on this issue and it strikes me that it makes as little sense to say that a photographer is required to take photographs they’d rather not take as it does to say that a painter should be required to paint a portrait they don’t want to paint.
