When 43 Catholic dioceses, schools, and institutions filed suit against the Obama administration to block the HHS mandate, they reiterated for all Americans the importance of preserving “our first, most cherished liberty”: religious liberty, as guaranteed in the First Amendment. But while national attention lingers on that specific clash, fresh assaults on religious liberty carry on elsewhere.
The latest battleground is New Mexico. In 2008, the New Mexico Human Rights Commission found Elane Photography, an Albuquerque photography studio co-owned by Elaine Huguenin and her husband, Jonathan, guilty of discrimination on the basis of sexual orientation for refusing to photograph Vanessa Willock’s same-sex “commitment ceremony.” The court ordered the business to pay $6,600 in attorney’s fees.
If it was little surprise that the commission found in favor of Willock, it was a shock when, last month, the New Mexico Court of Appeals upheld the ruling. The three-judge panel rejected Elane Photography’s claim that forcing the business to photograph the same-sex ceremony against its conscientious objections constituted “compelled speech” in violation of the owners’ federal and state rights. It also rejected the Huguenins’ claims to protection under the First Amendment’s “free exercise” clause and the New Mexico Religious Freedom Restoration Act.
“I felt like Atticus Finch,” Jordan Lorence, the Huguenins’ attorney, told NRO. “There is so clearly an injustice here.” Lorence is a lawyer for the Alliance Defense Fund, an organization of Christian lawyers specializing in religious-freedom cases.
The court dismissed the appeal that was based on the state’s Religious Freedom Restoration Act as inapplicable in a dispute between “private parties,” apparently failing to recognize that the law should certainly apply to a dispute with the Human Rights Commission, whose ruling and damages Elane Photography was appealing. The court based its decision, in large part, on the technical distinction that a photography studio qualifies as a “public accommodation,” defined in the New Mexico Human Rights Act as “any establishment that provides or offers its services . . . to the public,” such as a shop or a restaurant, “but does not include a[n] . . . establishment that is by its nature and use distinctly private.”
But isn’t a photography studio’s product different in kind from the products of, say, a burger joint or a shoe store? Neither the commission nor the court believed so. While the studio “does exercise some degree of control over the photographs it is hired to take,” the court wrote, “this control does not transform the photographs into a message from Elane Photography.” The court labeled the business, instead, “a mere conduit for another’s expression,” thereby denying it any free-speech protections available under the First Amendment.