Gay Rights vs. Free Speech Rights?

We previously wrote about the Employment Non-Discrimination Act (ENDA), which would ban private-sector employment discrimination based on sexual orientation, and how the bill’s requirements regarding “conditions of employment” could restrict free speech rights.  The Blade says that Congress will likely take up the ENDA bill in 2008, although a final vote may be delayed until 2009 to avoid a possible veto or filibuster.

U.C.L.A. Law professor Eugene Volokh discusses a free speech controversy over a ruling imposed under New Mexico’s gay-rights law, which has been cited by ENDA supporters as an example of a growing consensus in favor of banning sexual orientation discrimination.  A photographer was ordered to pay $6,600 by the New Mexico Human Rights Commission for refusing to take pictures of a civil-commitment ceremony planned by a lesbian couple.   That seems hypocritical on the part of the State of New Mexico, since it itself does not recognize gay marriage, or treat civil-commitment ceremonies as being analogous to marriage, yet it punishes wedding photographers who likewise do not treat gay civil-commitment ceremonies as being the same as marriages.    

The ruling raises two interesting questions.  First, does the ruling violate the free speech or freedom of religion of the photographer, given that taking photographs has long been regarded as expression that is original and copyrightable and that wedding photographs are often very distinctive and involve content-based choices and artistic judgment?  Professor Volokh believes that it does violate freedom of speech and freedom of religion, and I agree that it violates both the First Amendment and the New Mexico Religious Freedom Restoration Act, based on cases like Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995).

Second, is the ruling even based on a reasonable reading of New Mexico’s gay-rights statute, given that that law bans discrimination based on customers’ sexual orientation, not based on the type of ceremony they wish to promote?  After all, there is no evidence that the photographer refused to serve gay clients in general, only that she would not take pictures of a civil-commitment ceremony, i.e., promote a particular message.  That is not discrimination based on a customer’s sexual orientation anymore than it would be discrimination based on a customer’s religion for a gay photographer to refuse to photograph a religiously-motivated anti-gay demonstration by a reactionary minister like Fred Phelps, or discrimination against blacks or women for a photographer to refuse to videotape a feminist or Nation of Islam event.  (Arlington County, Virginia, recognized that fact in rejecting sexual-orientation discrimination charges against a business that refused to duplicate gay-rights videos).

It is common for wedding photographers to turn down certain types of weddings for reasons unrelated to discriminatory animus towards a customer.  And a civil-commitment ceremony isn’t legally analogous to a wedding, since it doesn’t create the same binding commitments as a marriage, so photographing weddings but not civil-commitment ceremonies is not itself discrimination.  Thus, the New Mexico Human Rights Commission’s ruling against Elaine Huguenin and Elane Photography and in favor of complainant Vanessa Willock should be reversed.