Elane Photo


Last week I informed you of a case, arising in Greece, New York, alleging violation of the establishment clause of the First Amendment. Those of you who read that blog, “A Greece Fire,” are aware of my gripping concern that public prayer is at risk throughout the halls of American government. This troubling prospect is, thankfully, not yet a reality, but I believe the Supreme Court’s decision is sure to be close, either way it goes.  

This week the national spotlight has turned from New York to New Mexico, where a couple are alleging violations of their First Amendment rights of free speech and of free religious exercise. It is another case that will, in all likelihood, be decided by the Supreme Court. 

Here are the relevant facts: 

  • Elaine Huguenin (pictured) and her husband Jon, a Christian couple, own and operate a photography studio, Elane Photography, in Albuquerque. 
  • Vanessa Willock requested that the studio photograph the commitment ceremony of her and her same-sex partner. 
  • The Huguenins expressly refused to do so on the religious basis that the ceremony involved two members of the same sex. 
  • Willock filed a complaint with the New Mexico Human Rights Commission, alleging that the studio discriminated against her in violation of the New Mexico Human Rights Act (NMHRA); specifically, the section of the Act that prohibits public accommodations from discriminating against citizens based upon their sexual orientation. 
  • The Commission found in favor of Willock.  The studio requested a trial de novo in district court and lost there on summary judgment. It then took an appeal to the court of appeals, where the judgment of the trial court was affirmed.  It appealed to the New Mexico Supreme Court, where the trial judgment was again affirmed. 
  • The New Mexico Supreme Court considered, in part, whether the studio’s First Amendment rights of free speech and of free religious exercise would be violated by the application of NMHRA.  The Court concluded that, under the statute, any business, which offers its services to the public, must serve  homosexual couples on the same basis as heterosexual ones, precisely as it is obligated to serve couples of different races. The Court further concluded that, since the studio was compelled neither to advance a government-mandated message nor to publish the speech of another, the studio's freedom of speech was not abridged.  Likewise, since the NMHRA is a neutral and generally applicable statute, there was no violation of the free exercise of religion. 
  • This case is almost certain to be heard by the United States Supreme Court, although a writ of certiorari has not yet been granted. If the case is heard, the primary question will be whether citizens who offer public accommodations (in this case, photography services) are free on First Amendment grounds to refuse service to other citizens on the basis of their sexual orientation. 

The leading case of religious free exercise, Employment Division of Oregon Department of Human Resources v. Smith, was decided in 1990, and the majority opinion was written by none other than Justice Antonin Scalia, one of the most conservative members of the Court. In that case, the primary issue was whether the ingestion of a criminally prohibited controlled substance, i.e. peyote, in a religious ceremony is protected by the free exercise clause of the First Amendment. The Court answered in the negative, and explained that an individual’s religious beliefs do not excuse him or her from compliance with a religiously neutral and generally applicable statute, such as those concerning polygamy, Sunday closings, Social Security taxation, and the military selective service system. The Court reasoned that, in a multi-cultural and multi-religious society like this one, to excuse compliance with any law on religious grounds would be courting anarchy. 

Yet – and this is of vital significance -- the Court was also careful to qualify this part of its holding by stating that a religiously neutral and generally applicable statute may not apply to religiously motivated action when the action is of a “hybrid” nature and involves speech or press claims or rights of parents to direct the education of their children. The Court was thinking about Cantwell v. Connecticut (1940), where it upheld against the dictates of an anti-solicitation statute the right of a family of Jehovah's Witnesses to distribute religious materials house to house, and of Wisconsin v. Yoder (1972), where it determined that the application of a compulsory-attendance at school statute violated the right of the Amish to free exercise. 

Elane Photography v. Willock does, in fact, involve a free speech claim. Photography is an art form and, hence, an expressive activity.  Think about the work of photographers such as Dorothea Lange, Robert Capa, Diane Arbus, and Ansel Adams.  Selling photography services cannot really be compared to selling coffee or shoes.  Elane Photography is arguing that forcing it to portray a same-sex marriage ceremony in positive photographic images violates its freedom of expression and Christian values. I would agree.

Also consider the case of Boy Scouts of America v. Dale (2000),  where an assistant scout master’s adult membership in Boy Scouts of America (BSA) was revoked by the organization because he became an avowed homosexual and gay rights activist.  The Court reasoned that, since BSA publicly expresses a system of moral values discordant with a gay lifestyle, Dale could be excluded from the organization, pursuant to its First Amendment right of expressive association. In this case too, the alleged violation was of a state’s public accommodation act. 

I think that the Smith and Dale precedents may weigh heavily in determining what happens in Elane Photography. I also believe that the nature of photography as an art and expressive activity may be a pivotal factor in the Court’s decision. But it should be remembered that we live in a culture that has seen radical changes during the last ten years, and many of them debilitating in my opinion.  The moral consensus has changed.  There are many Americans, including members of the Court, who doubtless think that there is no fair and justifiable reason for one, regardless of the circumstances, to discriminate against homosexuals or same-sex couples. They are convinced that Evangelical Christians are intolerant by refusing to accommodate conduct which they regard as morally reprehensible. 

Regardless of one’s position on the issue raised by this case, most thoughtful people will admit that the way in which it is decided is sure to be of immense consequence in fashioning (or re-fashioning) the moral and spiritual fabric of American society. It is a big thing, which deserves our concentrated attention and fervent prayers.

November 14, 2013