Can a photography business be forced to photograph a same-sex commitment ceremony?

This is the issue in an important, ongoing case for religious liberty.  In New Mexico, Elane Photography is owned by a husband-and-wife team.  The wife, Elaine Huguenin, is the chief photographer.  In 2006, she refused to photograph a same-sex commitment ceremony.  In a series of lawsuits, New Mexico courts and boards have ruled against Elane Photography, and found that refusing to take such photos is against state anti-discrimination laws.  The New Mexico Supreme Court will hear the case; Eugene Volokh has a fine summary at his blog, the Volokh Conspiracy.

In December, 2009, the New Mexico Human Rights Commission held that her refusal violated the state’s antidiscrimination law. The photography company was ordered to pay attorney’s fees and court costs.  Elane Photography’s lawyers then appealed the case to the New Mexico Court of Appeals.  The Federal Religious Freedom Restoration Act does not apply to state laws, but New Mexico is one of a few states that has a state Religious Freedom Restoration Act.  This case will prove a key test for state RFRAs.

In late May of 2012, the New Mexico Court of Appeals held that Elane Photography would be required to photograph the same-sex commitment ceremony, or face legal liability.  The Alliance Defense Fund, representing Elane Photography, appealed the case to the New Mexico Supreme Court.

Elane Photography has two principal arguments.  First, they believe that forcing Elaine Huguenin to photograph a same-sex ceremony is equivalent to compelled speech, in that it compels one to produce expression that is protected under the First Amendment.  Second, they believe that they have a religious exemption to the state anti-discrimination law under New Mexico’s RFRA.

The New Mexico Court of Appeals ruled that the state RFRA does not apply in this case, because it is a case between two civil parties.  Volokh has a comprehensive analysis of why the court is wrong in this finding.  The same court ruled that requiring Elane Photography to take the photos was not compelling expression violating the First Amendment.  Volokh has another fine analysis of why the court is wrong in this finding.

The New Mexico Supreme Court will rule on the case.  As Volokh notes, the court will decide if:

(1) holding a wedding photographer liable for refusing to photograph a same-sex commitment ceremony violates New Mexico’s statutory ban on sexual orientation discrimination, and

(2) even if it does violate the statute, whether the photographer is nonetheless immune from punishment because

(a) requiring her to create photographs that she doesn’t want to create is a speech compulsion, in violation of the Free Speech Clause,

(b) she is entitled to an exemption under the federal or state Free Exercise Clauses, and

(c) she is entitled to an exemption under New Mexico’s Religious Freedom Restoration Act.

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