Today the Supreme Court turned down the opportunity to rule on a case about same-sex wedding photography that fulfills every nightmare religious conservatives in America have about our new era of gay rights. The state of New Mexico had ruled that if you are in the wedding-photography business, you must be willing to take photographs of weddings involving same-sex couples—even if your own religion opposes such weddings.
By declining to hear the petition, the Court allowed that ruling to stand. Op-ed writers are free to fulminate about how innocent souls are forced to set their religion aside in the name of treating gay people as if they're full human beings.
In 2006, New Mexico wedding photographer Elaine Huguenin refused a job. Vanessa Willock had emailed to ask if Huguenin's business, Elane Photography (no explanation on the dropped "I" there), would photograph her commitment ceremony to her lesbian partner. Huguenin refused on the grounds that she was a devout Christian who only photographed "traditional marriages."
Willock, a former equal employment opportunity officer at the University of New Mexico, complained to the New Mexico Human Rights Commission. The New Mexico Human Rights Commission found for Willock under New Mexico's "public accommodation" law.
Public accommodation laws stem from the civil rights era. They hold that a merchant—a restaurant, say, or a florist—can't decline to serve someone based on their race, religion, or other specified characteristics., regardless of the merchant's personal beliefs or preferences. New Mexico includes sexual orientation on the list of what's protected.
These laws exist because segregation operated, in part, by allowing such individual acts of discrimination to add up to a system imposed on the general public. But they do get tricky where customer service blends into personal expression.
Wedding photography is a terrifyingly demanding business. People are fixated on the notion that the wedding must absolutely no matter what OK must be THE Best Day of Their Lives. And you, the wedding photographer, may inadvertently reveal the truth that lies beneath their aspiration by hitting that button at just the moment when a hair is out of place or a flicker of doubt crosses someone's brow. Susan Sontag did once liken photography to murder, after all.
Is the resulting work a mere commercial service to be rendered, or is it an act of individual creativity? As the First Amendment scholar Eugene Volokh has pointed out over the life of this case, in certain avenues of business—such as photography—public accommodation laws allow the government to compel someone to "speak" in favor of gay marriage. By taking pictures that show the joyous and uplifting features of a wedding, for instance.
Elane Photography has misunderstood this issue. It believes that because it is a photography business, it cannot be subject to public accommodation laws. The reality is that because it is a public accommodation, its provision of services can be regulated, even though those services include artistic and creative work. If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography's choice of whom to photograph or not. The difference in the present case is that the photographs that are allegedly compelled by the [New Mexico Human Rights Act] are photographs that Elane Photography produces for hire in the ordinary course of its business as a public accommodation. This determination has no relation to the artistic merit of photographs produced by Elane Photography. If Annie Leibovitz or Peter Lindbergh worked as public accommodations in New Mexico, they would be subject to the provisions of the NMHRA.
No one wants to deny that there is art and skill and judgment involved in wedding photography. But most people are not looking for essential acts of self-expression from their photographers. The happy couple hopes to see their happiness itself reflected in the photograph. They are hiring the photographer in the hope that he or she will find it at the right time on the right day. The photographer's artistic sensibility is an add-in.
The New Mexico Supreme Court suggested to Elane Photography that it simply put a disclaimer on its website instead, saying that the photographers didn't agree with gay marriage, but that of course it would comply with all anti-discrimination laws.
The Supreme Court of the United States didn't give its reasoning today, in declining the appeal of that ruling. But here's one guess: It declined in case that disclaimer solution totally solves the matter. What kind of couple, looking to have someone record their Special Day, would insist on hiring a company that fundamentally believes their wedding is an act against God?
[Photo via AP, from a 2004 gay wedding in Massachusetts.]