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New Mexico Court: Go Into Business, Lose Your First Amendment Rights

In Elane Photography v. Willock, the New Mexico Supreme Court ruled yesterday that a wedding photographer violated the New Mexico Human Rights Act by not agreeing to photograph a lesbian couple's same-sex commitment ceremony (gay marriage was not legal in New Mexico at the time, nor were civil unions, so, ironically, the state of New Mexico insists that private citizens treat gay unions as marriages even when it itself hypocritically refuses to do so).  It rejected free-speech, freedom-of-religion, and other civil-liberties arguments against forcing the photographer to do this (the First Amendment forbids compelled speech, as the U.S. Supreme Court has repeatedly noted, and photography is a form of protected speech, as federal courts have ruled).  The ruling seems plainly wrong, for the reasons I previously discussed at this link, explaining why an earlier ruling against the photographers by lower courts in New Mexico conflicted with both Constitutional free-speech and freedom-of-religion guarantees, and other provisions in New Mexico law.

More worrisome for businesses -- or anyone who works for a living -- is the New Mexico Supreme Court's argument that being required to photograph someone is not compulsion that triggers serious First Amendment scrutiny if it is imposed by the government as a condition of working as a photographer, since no one forced you to go into the photography business (which the state curiously defines as a "public accommodation"). As law professor and gay-marriage advocate Dale Carpenter notes, the court wrongly "argued that the photographer has the choice not to be in the business of taking pictures at all, but if it offers services to the public it must do so on the antidiscrimination terms mandated by the state."

To make that argument, the New Mexico Supreme Court's decision made absurd, counterintuitive distinctions to try to rationalize away the coercion of forcing Elaine Huguenin to photograph what she did not want to. It claims that there is no coercion here, unlike in the Supreme Court's 1977 Wooley v. Maynard decision (which held that a state could not prevent motorists from covering up the state's "Live Free or Die" motto on their license plates), because being a photographer for public events is a voluntary choice.  State law, the court says, "does not even require Elane Photography to take photographs" in the first place, but only attached conditions to its choice to do so.

But operating a motor vehicle is also a voluntary choice.  No one forced the Maynards, who won a free-speech ruling in their favor from the U.S. Supreme Court in the 1977 Wooley case, to drive or operate a motor vehicle, but they still successfully challenged a state law preventing them from covering up a state motto on their license plate that offended them.   Indeed, driving is a far more voluntary choice than a photographer pursuing her livelihood.  Working is less voluntary than driving.  (No court has ever held there is a constitutional right to drive a car, but the Supreme Court has held that there is a constitutional right to pursue "any of the the common occupations of life").  For most people, and small businesspersons like Elaine Huguenin, working is not really a "choice" (if you don't work, you go broke; but if you don't drive, you may get by just fine). I could give up driving if the government forced me to drive with an odious license plate I vehemently objected to, but I could not give up my professional license (as a lawyer) without enormous cost.  The Washington Post cartoonist Herblock never learned to drive and had a successful and lucrative career. But he would never have given up his free-speech right to draw the cartoons of his own choosing at work.  Lawyers are among the most tightly-regulated professions, due to their special government-conferred privileges as officers of the court, but even lawyers are generally protected against compelled speech that is made a condition of their "voluntary" choice to be a lawyer and get a license to practice law, as the Supreme Court's Keller decision illustrates.

The New Mexico Supreme Court's decision also absurdly ruled that state Religious Freedom Restoration Acts (like New Mexico's), which expressly protect religious liberties against the "state," do not protect against acts by the "legislature" or the judiciary (how convenient for the New Mexico judiciary to exempt itself from civil-liberties safeguards!), even though the legislature and judiciary constitute two of the three branches of state government.  Thus, it concluded that the New Mexico Religious Freedom Restoration Act leaves bullying of religious minorities unremedied if it occurs at the hands of the legislature or judiciary. As Professor Carpenter notes, "this is a rather stingy statutory protection of religious liberty against governmental burdens since government can burden rights by acting on its own or by making its court system and enforcement apparatuses available for others to do in its stead." Never mind that other religious-liberties provisions like the First Amendment clearly limit even legislative or judicial action that violates the freedoms of speech and religion. See Snyder v. Phelps (2011) (tort of intentional infliction of emotional distress created by courts was invalid as applied to protest speech by extremist church); Hustler v. Falwell, 485 U.S. 46 (1988) (common law tort invented by judiciary could not restrict parody aimed at public figure); New York Times v. Sullivan, 376 U.S. 254 (1964) (defamation award by judiciary was invalid under First Amendment); Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963) (legislative investigation violated First Amendment); cf. Meltebeke v. B.O.L.I., 903 P.2d 351 (Or. 1995) (discriminatory harassment penalty for religious proselytizing invalid under state constitution's freedom-of-religion guarantee).

As someone who used to bring civil-rights lawsuits for a living, I think that the New Mexico Supreme Court got it wrong, and that its decision merits review by the U.S. Supreme Court (even though I agree with the complainants in the Elane Photography case that gay marriage is a good thing).