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Topics In the News
New Mexico Epicenter of Gay Rights Battle
Posted by: Claude J. Summers on 08/23/13
Last updated on: 08/24/13
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The flag of the State of New Mexico.

During the third full week of August 2013, New Mexico has unexpectedly emerged as the epicenter of the American struggle for equal rights. In a matter of days, the New Mexico Supreme Court issued a major ruling upholding the state's nondiscrimination statute that prohibits discrimination on the basis of sexual orientation; a courageous Las Cruces clerk of court began issuing marriage licenses to same-sex couples, and the Attorney General announced that he would not oppose the action; and then, on August 22, a district judge ordered the clerk of court of Sante Fe County to issue marriage licenses to same-sex couples, and on August 23, the clerk announced that she would happily comply.

On August 19, Lynn Ellins, County Clerk of Doña Ana County, announced that his office had begun issuing marriage licenses to same-gender couples. Soon after his announcement, the first couple to receive a marriage license wed on the lawn of the county government center in Las Cruces. Since then about 90 other same-sex couples have flocked to the university city in the southern part of the state to receive marriage licenses.

Attorney General Gary King, who had earlier issued an opinion that New Mexico's marriage law was likely unconstitutional, announced that he had no plans to attempt to stop County Clerk Ellins from issuing the licenses, though he cautioned that the question had not yet been decided by the New Mexico Supreme Court, which recently declined to issue a ruling sought by attorneys for same-gender couples seeking marriage licenses from the county clerks in Bernalillo and Santa Fe counties. Instead, the Supreme Court sent these matters back to the lower courts for an initial review on the merits, but said that the plaintiffs could ask for an expedited consideration.

However, on August 22, New Mexico District Judge Sarah Singleton ordered Santa Fe County Clerk Geraldine Salazar to begin issuing marriage licenses to same-sex couples. The order came as a result of a lawsuit filed by two Santa Fe men. State Representative Brian Egolf, a lawyer representing the couple, is quoted in an Associated Press story as saying that this represents the first time a New Mexico judge has ruled that gay and lesbian couples can be married.

In her order, Judge Singleton said Salazar must grant the marriage licenses or appear in court on September 26 to tell her why that should not occur.

In response, on August 23, Salazar released a statement to the Santa Fe New Mexican saying that she will happily comply with the order and would begin issuing marriage licenses to same-sex applicants on Friday afternoon.

"I am a fervent supporter of same-sex marriage in New Mexico and have always believed that the restrictive and antiquated statutes in our State must fall to principles of equal protection embodied in our Constitution. I have been frustrated recently wanting to issue licenses but being confronted with long-standing statutes that do not permit it. Now that Judge Singleton has ordered me to issue a license to Messrs. Hanna and Hudson on constitutional grounds, I intend to do so and to issue a license to any same-sex couple who desires one and are otherwise qualified. By complying with the Judge's order, we will be issuing licenses legally and will not continue to use limited county resources on further litigation," Salazar said.

As though these developments, which portend a successful resolution of the quest for marriage equality in the Land of Enchantment, were not enough excitement for a single week, on August 22, the New Mexico Supreme Court released a unanimous and unambiguous ruling in a closely watched case challenging the state's Human Rights Act, which forbids discrimination on the basis of sexual orientation in public accommodations.

The case, Elane Photography v. Willock, involves a lesbian couple who wanted their commitment ceremony photographed by a business in the state. The couple filed a complaint with the New Mexico Human Rights Commission when a photography studio that specializes in weddings refused to photograph their ceremony.

Elane Photography argued that its refusal to photograph same-sex weddings or commitment ceremonies is not discrimination on the basis of sexual orientation because they would take photographs of gays and lesbians and perform other duties for gays and lesbians. Rather, they contended, the case was really about religious freedom since photographing same-sex weddings would violate their religious beliefs.

Noting that there is no basis to distinguish a person's sexual orientation from behavior affirming that orientation, the Court in an eloquent decision authored by Justice Edward L. Chávez said, "The [state's anti-discrimination law] does not permit businesses to offer a 'limited menu' of goods or services to customers on the basis of a status that fits within one of the protected categories. Therefore, Elane Photography's willingness to offer some services to Willock does not cure its refusal to provide other services that it offered to the general public. Similarly, it does not help Elane Photography to argue that it would have turned away heterosexual polygamous weddings or heterosexual persons pretending to have a same-sex wedding. Those situations are not at issue here, and, if anything, these arguments support a finding that Elane Photography intended to discriminate against Willock based on her same-sex sexual orientation."

The Court also rejected arguments that the anti-discrimination law violates freedom of speech and the free exercise of religion. It pointed out that the government is not compelling Elane Photography to produce any particular message, nor is Elane Photography prohibited from speaking out against same-sex marriage. It is compelled only to offer its business services without discriminating against potential customers on the basis of sexual orientation and the other classes protected by the Human Rights Act.

In addition, the Court summarily dismissed the argument that a photography business is not a public accommodation since it involves expressiveness: "If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography's choice of whom to photograph or not. The difference in the present case is that the photographs that are allegedly compelled by the NMHRA are photographs that Elane Photography produces for hire in the ordinary course of its business as a public accommodation. This determination has no relation to the artistic merit of photographs produced by Elane Photography. If Annie Leibovitz or Peter Lindbergh worked as public accommodations in New Mexico, they would be subject to the provisions of the NMHRA."

The Court's bottom line is that "a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the [New Mexico Human Rights Act] and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, 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."

In a fascinating concurrence, Justice Richard Bosson evoked the U.S. Supreme Court ruling that declared bans on interracial marriage unconstitutional, pointing out that a Virginia trial judge had argued in favor of anti-miscegenation laws by citing his religious beliefs, as well as challenges to the Civil Rights Act of 1964.

In his elegant conclusion, he addressed directly the couple who own Elane Photography.

"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."

In Justin Snow's report on the ruling at MetroWeekly Louise Melling, deputy legal director of the American Civil Liberties Union, explains the Court's ruling as follows: "When you open a business, you are opening your doors to all people in your community, not just the select few who share your personal beliefs. The Constitution guarantees religious freedom in this country, but we are not entitled to use our beliefs as an excuse to discriminate against other people."

The opinion may be found here.

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