Bench Memos

Eviscerating Religious Liberty in New Mexico

Speaking of New Mexico: Last Thursday, an intermediate appellate court ruled that a commercial photographer who refused, on religious grounds, to offer her services for a same-sex commitment ceremony violated the New Mexico Human Rights Act. Among other things, the court ruled that the New Mexico Religious Freedom Restoration Act (the state version of the federal Religious Freedom Restoration Act) did not provide the photographer any protections in litigation between private parties.

But, as Eugene Volokh spells out, “that can’t be right.” The photographer was appealing the New Mexico Human Rights Commission’s order requiring her to pay the same-sex couple more than $6000 (in attorney fees and costs). New Mexico procedural rules evidently didn’t require that the Human Rights Commission be a named party in the appeal. But that doesn’t alter the fact that it was a state agency, plainly subject to the state RFRA, that imposed the penalty.

(The court also rejected the photographer’s claim that the Human Rights Commission’s order violated her First Amendment right against compelled expression. Volokh separately writes in support of the photographer’s First Amendment defense.)

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