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The following piece contains general information and does not contain legal advice. Please consult a lawyer about your specific situation.

The SCOTUS let stand a New Mexico Supreme Court ruling that said that a wedding photographer could not refuse to photograph a gay wedding on religious grounds. This means that the movement towards legitimizing gay rights in this country is continuing. The question that I have in light of this ruling is, could a business like Elane Photography, the defendant in the suit, designate themselves as a religious organization in order to exempt themselves from civil rights laws?

In other words, when I walk into a secular business, I expect them to provide services. But if I were to walk into the doors of a Christian ministry, I would expect them to be in existence for the purpose of ministering to conservative fundamentalists and proselytizing nonbelievers. This ruling will force many such businesses to clarify whether they are a secular business or religious organization. The ruling is clear that they can't have it both ways.

The company's owners, Elaine and Jonathan Huguenin, are Christians who oppose gay marriage. Because taking photographs can be seen as a form of speech, the First Amendment protects them from being required to "express messages that conflict with their religious beliefs," their attorneys said in court papers. Elane Photography has previously declined requests to take nude maternity pictures and images depicting violence, its lawyers said.
Another implication will be, can such photographers be forced to take pictures of porn? Violence? Extramarital affairs? One critical difference between yesterday's ruling and the three things mentioned is that being gay is biological, not behavioral. In other words, Elane's could still refuse to do business with someone who wanted them to photograph a Skinhead parade.

The Alliance Defending Freedom represented the studio.

"Only unjust laws separate what people say from what they believe," said Alliance Defending Freedom Senior Counsel Jordan Lorence. "The First Amendment protects our freedom to speak or not speak on any issue without fear of punishment. We had hoped the U.S. Supreme Court would use this case to affirm this basic constitutional principle; however, the court will likely have several more opportunities to do just that in other cases of ours that are working their way through the court system."
On their website, the Alliance Defending Freedom says that the freedom of all professionals -- no matter what they believe -- is in jeopardy.
Photography is Elaine’s artistic lens. She crafts and shapes the moments that become memories through the photo stories she creates. Her art is so much a part of her that there are some stories she just can’t tell.

In 2006, Elaine Huguenin and co-owner husband, Jonathan, of Elane Photography, were asked to help a lesbian couple “celebrate their commitment ceremony” by photographing the event. After wrestling with the request, Elaine respectfully declined to participate, explaining that their Christian beliefs were in conflict with the message communicated by the ceremony. Neither same-sex “marriage” nor civil unions even existed in New Mexico at the time.

They ask the following questions:
Should a photographer in a same-sex relationship be forced by the government to take photos to promote a conservative local church’s marriage conference?

Should a Democrat baker be forced to make a Ronald Reagan cake celebrating the Republican National Convention?

My answer is that there is a big difference between depicting something that is behavioral and something that is biological. The other thing is that it is important to be upfront about what you believe and why you believe it. For instance, in either case, being up front about who you are, what you believe, and why you believe it will prevent most of these conflicts from ever taking place.

The other thing is that these cases reveal that there is a blatant ignorance of science in our society. Unlike those who felt that God quit speaking after the Bible was completed, I feel that God never stopped speaking to us. He left us the Bible and volumes of writings from church fathers who had known the apostles. I think that he wanted us to become a pastoral socialistic society where everyone helped everyone else. Christianity thought up socialism well before Karl Marx did. But I think that after we got it so wrong for so many centuries he saw fit to reveal knowledge through science so that we would see the truth for ourselves about how to live better lives. So based on what we know about science, God made gays they way they are, and the rest of us should respect God's will.

There is still freedom for people to express themselves through their art. The catch is that you have to be upfront about the fact that you're a religious or political organization if that is what you believe. To imply that you're a secular business open to all customers when you're not is a matter of bearing false witness. And that is the cause of most of these conflicts.

From Al-Jazeera:

But Tobias Barrington Wolff, a University of Pennsylvania law professor representing the New Mexico couple, said "no court in the United States has ever found that a business selling commercial services to the general public has a First Amendment right to turn away customers on a discriminatory basis.

"The New Mexico Supreme Court applied settled law when it rejected the company's argument in this case, and the Supreme Court of the United States was correct to deny certiorari review. The time had come for this case to be over, and we are very happy with the result."

Attitudes toward gay relationships have changed rapidly in the United States in recent years. New Mexico is one of the 17 states where gay marriage is now legal.

Originally posted to Stop the Police State! on Tue Apr 08, 2014 at 07:08 AM PDT.

Also republished by LGBT Rights are Human Rights and LGBT Kos Community.

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Comment Preferences

  •  Tip Jar (11+ / 0-)

    "The cost of liberty is less than the price of repression." - W.E.B. Du Bois Be informed. Fight the Police State.

    by Eternal Hope on Tue Apr 08, 2014 at 07:08:16 AM PDT

  •  It's rather... (1+ / 0-)
    Recommended by:

    offensive to equate photographing a gay wedding to photographing porn, violence or an extramarital affair, isn't it?

    "It's almost as if we're watching Mitt Romney on Safari in his own country." -- Jonathan Capeheart

    by JackND on Tue Apr 08, 2014 at 07:17:13 AM PDT

  •  From where I sit, an enterprise availing itself (5+ / 0-)

    of a public utility, i.e. the conventional currency we distribute for use in exchange and trade, has implicitly signaled itself as engaged in a public enterprise. If a person wants to be private, let them take pictures or perform any other service gratis.  
    If you don't want to be governed by public policy, don't take the public's currency.

    Every dollar is nothing but a certified debt. That is, it is a piece of paper (or a series of electronic digits) which our main political jurisdiction guarantees will be honored. That certainty is worth something -- that the rules of the certifying entity will be followed, at a minimum. And one of those rules, btw, is that a percentage of the dollars issued be returned to the Treasury on a regular basis for accounting purposes and redistribution. We're not redistributing wealth; we're redistributing certificates of debt.

    by hannah on Tue Apr 08, 2014 at 07:23:02 AM PDT

  •  I'm glad this story is getting some press, (3+ / 0-)
    Recommended by:
    fcvaguy, skrekk, AUBoy2007

    but some of the details aren't exactly right.  

    Elane Photography wasn't arguing in its petition for cert that it is a religious organization that gets blanket exemption from certain laws.  That's a sure loser of an argument and one that SCOTUS has rejected every time it has been raised.  

    The argument Elane was making was a lot more nuanced.  Basically, the First Amendment protects your right to free speech—this protects your right to say certain things, but it also protects your right NOT to say something you don't want to say.  The government can't require you to say "I love Obama and he is the greatest" every morning.  

    Elane's argument is that photos of a gay wedding are speech, and telling Elane that they MUST take photos of a gay couple forces them to "create" speech they don't want to create.  Their argument is that, just like the government couldn't force me to carve a statute of George W Bush looking heroic, the government can't force them to take a photo (create art) they don't want to take (make).  

    Nothing in their argument relies on the religious nature of their beliefs.  If they were raging atheists who just hated gays, the argument would still go the same way.  

    •  Yes (1+ / 0-)
      Recommended by:

      In a diary yesterday, I asked the question. And it seems while they originally sued on religious grounds through the New Mexico Supreme Court, their appeal to the US Supreme Court was free speech grounds as a opposed to religous grounds.

      I suppose if they appealed again on their original grounds, religious, this case might become much like the Hobby Lobby case.

      KOS: "Mocking partisans focusing on elections? Even less reason to be on Daily Kos."

      by fcvaguy on Tue Apr 08, 2014 at 08:02:29 AM PDT

      [ Parent ]

    •  True. (0+ / 0-)

      But if she doesn't want to have to photograph gay weddings, then she should set up her business as a religious organization. Not a business that sells services to the general public.

      "The cost of liberty is less than the price of repression." - W.E.B. Du Bois Be informed. Fight the Police State.

      by Eternal Hope on Tue Apr 08, 2014 at 08:08:35 AM PDT

      [ Parent ]

      •  I'm not sure what you mean when you say (2+ / 0-)
        Recommended by:
        AJayne, skrekk

        "set up her business as a religious organization."  She can either make her services available to the public or not—that's the only thing that determines if she has to comply with the law.  

        She certainly can't say "hey, I'm a Christian photographer and I only photograph Christians."  In addition to violating NM law, that probably violates federal law as well.  

        •  What about as a tax-exempt religious organization? (0+ / 0-)

          Aren't religious organizations exempt from most civil rights laws?

          "The cost of liberty is less than the price of repression." - W.E.B. Du Bois Be informed. Fight the Police State.

          by Eternal Hope on Tue Apr 08, 2014 at 09:08:38 AM PDT

          [ Parent ]

          •  Businesses owned by religious organizations are (1+ / 0-)
            Recommended by:

            generally subject to the same laws as other businesses.    The only distinction there is in regards to non-clerical vs clerical employees (ie, some religious job function).

            The only way the bigoted photographers could have gotten away with it is to run their business as a private members-only club, like Rush Limbaugh's whites-only country club.

          •  No, not at all. The only exception is where (0+ / 0-)

            religious faith is necessary to do the job.  This is a very limited exception—churches can require that nuns be Catholic, synagogues can require that rabbis be Jewish, but that's about it.  Catholic Charities, for example, can't discriminate on the basis of religion  

            •  OK. (0+ / 0-)

              So can she set her business up as a private member's club?

              "The cost of liberty is less than the price of repression." - W.E.B. Du Bois Be informed. Fight the Police State.

              by Eternal Hope on Tue Apr 08, 2014 at 09:48:46 AM PDT

              [ Parent ]

              •  No, I don't think NM recognizes a "private (0+ / 0-)

                club" exception.  

                Even if it did, you can't just declare yourself a private club.  There are real, actual requirements you have to meet—it isn't just a matter of setting your business up a particular way.  And I'm not even sure how a photography business can be a private club…a golf course or a restaurant I get, but I'm not sure that even works for a photographer.  

                •  Set it up like a ministry, for instance. (0+ / 0-)

                  Promote "traditional family values" and "celebrating the integrity of marriage." People could pay a monthly or annual membership fee and members would get access to services such as photography, for instance. In other words, we don't do services to the general public; we offer services to our paid members. The key, I think, is being upfront about your beliefs and affiliations. For instance, TYT, Beck, Pakman, Coast to Coast, and other such organizations offer bells, whistles, and deals for members that pay set dues each month that they don't offer to the general public.

                  Even though NM doesn't recognize a "private club" exception, that would be the way to go if someone wanted to go that route. But yesterday's ruling means that if push comes to shove, you still have to provide the services if asked at least in NM.

                  "The cost of liberty is less than the price of repression." - W.E.B. Du Bois Be informed. Fight the Police State.

                  by Eternal Hope on Tue Apr 08, 2014 at 11:18:20 AM PDT

                  [ Parent ]

                  •  Even if that would work, that's obviously (1+ / 0-)
                    Recommended by:
                    Eternal Hope

                    going to be a tough business model.  It's a lot easier to sell photography services by advertising in the yellow pages than by pretending to be a private club.  If it was that easy, they would have done it already.  

                    Like I said, NM doesn't have a private club exception, so this is moot.  I'm not sure why you're saying "that would be the way to go if someone wanted to go that route"—it don't think it would accomplish what you think it would.  

                    The point is, antidiscrimination laws have teeth.  This isn't a situation where you can sprinkle some legal holy water and be exempted from the law.  

    •  Which points to the specifics of this case - (5+ / 0-)

      As an artist (sculptor), were one to open a business that offered personalized carving of busts to the general public, one would be within one's rights to say, "I will not sculpt a bust of GWBush looking heroic because, as an artist, that is not how I see the man." (This is being discriminating and opposed to practicing discrimination.)

      Even seeing photos as art (which I do), selling one's services as a wedding photographer while trying to deny that same service to a gay couple is problematic because the photographer advertises the service (and resulting product) as "artistic portrayal of a wedding."

      A wedding is a wedding is a wedding. Artistic portrayal of the event is not inherently different based on the particular characteristics of the participants. Attempting to attach a non-existent difference to a group of people due only to the personal prejudices of the proprietor is blatant discrimination and violates laws that prohibit discrimination against that group.

      •  I think that's a powerful argument, and (4+ / 0-)

        one that I agree with.  People who wants busts of GWB aren't a protected class (while LGBT folks are, at least in New Mexico), so there's no discrimination issue there, obviously.  

        I made this point in another diary, but I think it bears repeating.  You can generally refuse service to anyone for pretty much any reason.  The big exception to this is refusing to serve someone because of race, gender, sexuality, religion, etc.  But if you don't want to serve libertarians, Harvard graduates, doctors, drunks, or Cowboy's fans, you can do that because those groups aren't protected classes.

    •  Except they're not creating.. (1+ / 0-)
      Recommended by:
      Eternal Hope
      Elane's argument is that photos of a gay wedding are speech, and telling Elane that they MUST take photos of a gay couple forces them to "create" speech they don't want to create.'s a service.
      A business selling commercial services to the general public. The photographing service is not a statement or an idea being expressed by or created by the imagination of Elane. The couple getting married were doing the expressing.


      Their argument is that, just like the government couldn't force me to carve a statute of George W Bush looking heroic, the government can't force them to take a photo (create art) they don't want to take (make).  
      ..this is a form of expression

      And to say that Elane wasn't in reality, basing this for religious and discriminatory reasons is incorrect according to this reporting:

      Elane Photography appealed the commission's decision, raising objections under both the First Amendment and a state law protecting religious freedom.
      If the photographer Elane has discriminating tastes about what they want to photograph they should advertise those "refined" attributes.

      Not only a tasteful professional attribute but a real time saver and to avoid confusion in the future. Maybe Elane should advertise and tout that they are a company with 'discerning' professional photographers qualities. it's not for religious or discriminatory reasons right? so there should be no problem..

      Thx Eternal Hope

  •  Photographers' attys distort truth - again (6+ / 0-)
    Another implication will be, can such photographers be forced to take pictures of porn? Violence? Extramarital affairs?
    Buying into this twist that Alliance Defending Freedom is trying to put on this case distorts what is really at play in this case and the others like it -

    The gist of this case, just like that of bakeries and florists, is that the proprietors were asked to provide the exact same product and/or service to a gay couple that they routinely provide to non-gay customers.

    No business person will ever be required to perform a service or provide a product that is outside of the standard line of services/products they routinely offer. What will be required is they provide routinely-offered services/products to everyone without imposing proprietors' personal prejudices on potential customers.

  •  Can't read too much into the denial (1+ / 0-)

    of review.  They don't hear most cases, and while the petitioners described it as a first amendment challenge, the law in question was not a federal statute, so they were less interested, and the High Court has already said states can include sexual orientation in the realm of antidiscrimination laws.  I don't think even petitioners expected the court to hear it; they probably wanted it to be denied so they could cry victim.

    Difficult, difficult, lemon difficult.

    by Loge on Tue Apr 08, 2014 at 08:10:03 AM PDT

  •  "Let stand" does not mean "uphold". (5+ / 0-)

    The Supreme Court has a choice of what cases it takes; declining to take a case is not a precedent and means nothing beyond the fact the court didn't want to take this case for some reason.

    The dossier on my DKos activities during the Bush administration will be presented on February 3, 2014, with an appendix consisting an adjudication, dated "a long time ago", that I am Wrong.

    by Inland on Tue Apr 08, 2014 at 08:25:51 AM PDT

    •  IANAL but (2+ / 0-)
      Recommended by:
      AJayne, Eric Nelson

      I think letting the lower court decision stand establishes it a a precedent, meaning that it can influence later cases. Is this correct?

      You fell victim to one of the classic blunders, the most famous of which is "Never get involved in a land war in Asia".

      by yellowdog on Tue Apr 08, 2014 at 08:32:42 AM PDT

      [ Parent ]

      •  The NM ruling is binding in NM courts (1+ / 0-)
        Recommended by:

        (and is able to influence later cases) on the issue that was before it, namely, does the first amendment trump NM statute?    

        The dossier on my DKos activities during the Bush administration will be presented on February 3, 2014, with an appendix consisting an adjudication, dated "a long time ago", that I am Wrong.

        by Inland on Tue Apr 08, 2014 at 08:37:59 AM PDT

        [ Parent ]

      •  Not really...If I were writing a brief (0+ / 0-)

        in support of a similar state law somewhere else, I'd cite this case and note that SCOTUS denied cert, but that probably doesn't mean much.  

        SCOTUS hears only a tiny fraction of the cases that come to it, and it's difficult to try and read the tea leaves and figure out why any particular case was denied cert.  It certainly shouldn't be taken as strong approval of the NM court's decision.    

        •  It is interesting, though (0+ / 0-)

          that it took the SCOTUS three conferences to decide not to grant cert (it had been listed for the last three Fridays). It's also interesting that the oral arguments in Hobby Lobby and Conestoga fell in between the last two conferences.

          Unfortunately when smart and educated people get crazy ideas they can come up with plausibly truthy arguments. -- Andrew F Cockburn

          by ebohlman on Tue Apr 08, 2014 at 07:00:24 PM PDT

          [ Parent ]

      •  Denial of certiorari has no precedential effect. (1+ / 0-)
        Recommended by:

        While the New Mexico Supreme Court decision of course is binding precedent in New Mexico, elsewhere it has only persuasive effect.

        The denial of certiorari by the U.S. Supreme Court has no precedential effect. Hopfmann v. Connolly, 471 U.S. 459, 461 (1985) (per curiam), citing Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 919 (1950) (opinion of Frankfurter, J.). In the latter case, Justice Frankfurter explains (at 917-919):

        This Court now declines to review the decision of the Maryland Court of Appeals. The sole significance of such denial of a petition for writ of certiorari need not be elucidated to those versed in the Court's procedures. It simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter ‘of sound judicial discretion’. Rule 38, paragraph 5, Rules of the Supreme Court, 28 U.S.C.A. A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result. This is especially true of petitions for review on writ of certiorari to a State court. Narrowly technical reasons [918] may lead to denials. Review may be sought too late; the judgment of the lower court may not be final; it may not be the judgment of a State court of last resort; the decision may be supportable as a matter of State law, not subject to review by this Court, even though the State court also passed on issues of federal law. A decision may satisfy all these technical requirements and yet may commend itself for review to fewer than four members of the Court. Pertinent considerations of judicial policy here come into play. A case may raise an important question but the record may be cloudy. It may be desirable to have different aspects of an issue further illumined by the lower courts. Wise adjudication has its own time for ripening.
        * * *

        . . . It becomes relevant here to note that failure to record a dissent from a denial of a petition for writ of certiorari in nowise implies that only the member of the Court who notes his dissent thought the petition should be granted.

        *919 Inasmuch, therefore, as all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.

        The one thing that can be said with certainty about the Court's denial of Maryland's petition in this case is that it does not remotely imply approval or disapproval of what was said by the Court of Appeals of Maryland.

        Shalom v' salaam; peace and wholeness

        by another American on Tue Apr 08, 2014 at 09:44:51 AM PDT

        [ Parent ]

  •  the "should a democrat baker be forced to (3+ / 0-)

    bake a ronald reagan cake" is the STUPIDEST thing I ever heard.

    If I were a baker, I absolutely would bake a fucking ronald reagan cake, and it'd be fucking delicious too, because unlike them, my "conscience" is an ADULT conscience, not one of a bratty-ass little snotrocket child. These people need to grow the entire fuck up.

    Dawkins is to atheism as Rand is to personal responsibility. uid 52583 lol

    by terrypinder on Tue Apr 08, 2014 at 09:08:57 AM PDT

    •  The law doesn't even require this. A (0+ / 0-)

      democratic baker absolutely could decline to make a Reagan cake.  The statute doesn't reach that situation at all.  If I'm a baker and I don't want to make cakes of any kind for anyone who is a registered Republican, I can do that under the NM law.

    •  Since there is no Democrat (sic) Party.... (0+ / 0-)

      It was an asshole's press release. THere was no reason why they didn't properly say the DemocratIC Party. Regardless of what they used, it was a specious argument since it is not a protected class under NM public accommodation laws.

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