Disclaimer and Notice

THIS BLOG SITE IS INTENDED AND DESIGNED FOR INFORMATION PURPOSES ONLY, AND DOES NOT CONSTITUTE EITHER LEGAL ADVICE OR THE FORMATION OF AN ATTORNEY-CLIENT RELATIONSHIP.

Monday, December 31, 2012

Right to Gay Wedding Photography Protected by HRA

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I am keenly interested in legal cases of first impression involving family and home issues.  In a case involving the intersection of competing personal rights, the New Mexico Court of Appeals recently concluded that a professional wedding photographer's refusal--on personal and religious grounds--to photograph a same-sex commitment  ceremony constitutes a violation of NMSA 1978, Section 28-1-7(F) (2004) of the New Mexico Human Rights Act" (NMHRA or HRA).  See Elane Photography, LLC v. Willock, 2012-NMCA-086, cert. granted. Aug. 16, 2012, No. 33,687.

Willock first filed a discrimination claim against Elane Photography with the Human Rights
Commission.  The Commission concluded that Elane Photography is a "public accommodation" under the HRA, and that Elane discriminated against Willock based on Willock's sexual orientation.  The Commission ordered Elane Photography to pay Willock $6,637.94 in attorney fees; Willock did no seek monetary damages. Elane Photography appealed to District Court, which granted Willock summary judgment, and Elane Photography then appealed to the Court of Appeals.  

Elane Photography argues that the Commission's interpretation of the HRA violated (1) Elane Photography's federal and state constitutional rights to freedom of expression, (2) Elane Photography's federal and state constitutional rights to the free exercise of religious, and (3) Elane Photography's rights under the NM Religious Freedom Restoration Act, NMSA 28-22-1 et seq.  Elane Photography also argues that it is not a public accommodation, and that it did not make any distinction based on sexual orientation in refusing its services to Willock.

Addressing the statutory arguments first, the Court of Appeals rejected Elane Photography's arguments that "public accommodation," 28-11-2(H), involves either "essential services" or excludes "any business that includes a creative, expressive, or artistic component."  The Court noted:

"Today, services, facilities, and accommodations are available to the general public through a variety of resources.  Elane Photography takes advantage of these available resources to market to the public at large and invite them to solicit services offered by its photography business ... It does not participate in selective advertising ..., nor does it in any way seek to target a select group of people for its internet advertisements ... We conclude that Elane Photography is a public business and a commercial enterprise [and] ... constitutes a public accommodation under the NMHRA."  As such, it "cannot discriminate against any class protected by the NMHRA."

As to the alleged discrimination, Elane Photography argued that "it did not decline photography services to Willock because of her sexual orientation," but rather because "company policy and its 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."  The Court rejected this argument, pointing out that it impermissibly distinguishes between protected status and conduct inherently associated with that class. 

The Court then addresses and dismissed each of Elane Photography's constitutional and other statutory claims:
(a) Wedding photography, although expressive, is not intended to express any particular message from Elane Photography itself, and the NMHRA as a neutral regulation of commercial conduct, "does not infringe upon freedom of speech or compel unwanted expression."
(b) This application of the HRA does infringe on Elane Photography's religious beliefs, only its commercial conduct, and there is no showing of a religious belief that requires it to engage in this particular business.  Moreover, Elane Photography is free to tell Willock what they think about same-sex relations and same-sex ceremonies--it just "may not discriminate in its commercial activities against protected classes at the basis for expressing its religious opinion."
(c) The New Mexico Religious Freedom Restoration Act is inapplicable as a matter of law to this case because its scope is limited "to cases in which a 'government agency' has restricted a person's free exercise of religious," which the Court implicitly concludes does not mean the Court itself in enforcing the HRA in this case.




If you are interested in domestic relations mediation, or mediation for any dispute regarding matters of "heart and home,"  please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.