On the Case: Issue 1

Same sex marriage and religious freedom collide in New Mexico

Early in April 2004, the United States Supreme Court refused to consider an appeal from a decision of the New Mexico Supreme Court which addressed the intersection between same sex marriage legislation, anti-discrimination legislation and religious freedom. In this first edition, Professor Michael Quinlan, Dean of the School of Law, Sydney looks at that Supreme court of the State of New Mexico decision: Elane Photography LLC v Vanessa Willock.¹

In brief

In this case wedding photographers, who refused to photograph a same-sex wedding because of their strong religious convictions, were found to be in breach of the New Mexico Human Rights Act (the NMHRA).

The facts

Vanessa Willock emailed Elane Photography to determine whether it would be available to photograph her wedding to another woman. The owners of Elane Photography, Jonathan and Elaine Huguenin, were devout, practising Christians and they believe, as a matter of faith, that the Bible prohibits same-sex marriage and that that command is not open to secular interpretation but was to be obeyed. Mrs Huguenin thanked Ms Willock for her email and informed her that “we do not photograph same-sex weddings.” Ms Willock filed a discrimination complaint against Elane Photography with the New Mexcio Human Rights Commission alleging that the company had discriminated against her on the basis of her sexual orientation in violation of section 28-1-7(F). This complaint was upheld by that Commission and upheld on appeal by the Second Judicial District Court and this decision was an appeal from that Court’s decision.

The legislation

Section 28-1-7(F) of the NMHRA makes it unlawful for “any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap." (emphasis added).

The decision

Elane Photography argued that:

(i) it did not violate the NMHRA because it did not discriminate on the basis of sexual orientation when it refused service to Willock;

(ii) by compelling Elane Photography to accept clients against its will, the NMHRA violated the First Amendment;

(iii) the NMHRA violated Elane Photography’s rights to freely exercise its religion under the First Amendment and by Section 28-22-3 of the New Mexico Religious Freedom Restoration Act (NMRFRA).

Elane Photography argued that it was happy to photograph Ms Willock and her partner in a context which not involve or endorse same-sex weddings. It also argued that it would refuse to photograph anyone in photographs which effectively endorsed same sex marriage whatever their sexual orientation might be. The Court rejected these arguments as “an attempt to distinguish between an individual’s status of being homosexual and his or her conduct in openly committing to a person of the same sex.”²

The Court found that same sex marriage is conduct which is “so closely correlated with sexual orientation” and that to allow discrimination of the type proposed by the Hugenins “would severely undermine the purpose of the NMHRA.”³

The Court also rejected the argument that by compelling Elane Photography to accept clients against its will, the NMHRA violated its freedom of speech as protected by the First Amendment. Elane per Chavez J at {16}  3ibid

Photography argued that by being forced to take photographs of same sex weddings it was being forced to publicly endorse them.

The Court found that not to be so because Elane Photography was free to state that it opposed same sex-marriage⁴ and to select the photographs that it displayed in its advertising and on its website.⁵

The Court also rejected the arguments based on freedom of religion on the basis that the NMHRA was “a valid and neutral law of general applicability.”⁶ In Justice Richard C. Bosson’s view: “The Huguenins…refusal to do business with the same-sex couple in this case, no matter how religiously inspired, was an affront to the legal rights of that couple, the right granted them under New Mexico law to engage in the commercial marketplace free from discrimination.”⁷ Bosson J noted that the Huguenins “now are compelled by law to compromise the very religious beliefs that inspire their lives” and that he found that result “sobering.”⁸ Whilst for Bosson J the Huguenins were “free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead”⁹ if they wished to conduct a public photography business they had to compromise “to accommodate the contrasting values of others.”¹⁰

Why this case is worth knowing about

Proponents of same sex marriage often argue that permitting people of the same sex to marry will impact only those people who chose to do so and that it should be no concern of anyone else. This case demonstrates that that has not been the experience overseas where such legislation has been enacted. Whilst all of the draft legislation, which has been produced in Australia so far, and the ACT legislation which passed on 22 October 2013, has included exemptions for Churches and such that members of the clergy would not be obliged to officiate at such ceremonies if to do so would be contrary to their religious beliefs, none have provided any conscience or religious freedom protections for members of the general public. Whist the case turns on the law of New Mexico, unless express exemptions are included, if same sex marriage legislation were enacted in any State or Territory or Federally in Australia anti-discrimination legislation operating in those jurisdictions would almost certainly produce the same result.

¹ Elane Photography LLC v Vanessa Willock, Supreme Court of the State of New Mexico, Docket No.33,687

² per Chavez J at {16}

³ ibid

⁴ per Chavez at {47}

⁵ per Chavez at {42}

⁶ Employment Division , Department of Human Resources of Or v Smith, 494 US 872,879 (1990) as quoted by per Chavez at {60}

⁷ Bosson J at {86}

⁸ Bosson J at {90}

⁹ Bosson J at {91}

¹⁰ Bosson J at {91}