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Topics In the News
Supreme Court Declines to Review Discrimination Case
Posted by: Claude J. Summers on 04/07/14
Last updated on: 04/07/14
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On April 7, 2014, the United States Supreme Court announced that it has declined to review Elane Photography v. Willock, a challenge to New Mexico's Human Rights Act, which prohibits discrimination on the basis of sexual orientation in public accommodations. The case was brought by a photography business after they were successfully sued for refusing to photograph a same-sex commitment ceremony.

The Court had considered a petition for certiorari (or review) over several conferences before announcing that the justices had officially denied the petition. The denial of certiorari means that the unanimous New Mexico Supreme Court decision of August 22, 2013 is upheld.

In an eloquent decision authored by Justice Edward L. Chávez, the New Mexico Supreme Court rejected all the arguments proffered by Elane Photography.

The photography business contended that its refusal to photograph same-sex weddings or commitment ceremonies was 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 argued, 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 New Mexico Court 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 New Mexico 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 was 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."

The New Mexico Supreme Court ruling, along with other rulings concerning florists and bakers who have refused to provide services for same-sex weddings, have prompted a number of attempts to carve out large "religious freedom" exemptions from non-discrimination laws in several states.

The opinion may be found here.

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