The Supreme Court of the United States on April 7 rejected an appeal filed on behalf of Elaine and Jonathan Hugenin of New Mexico who had refused to take photographs at the same-sex commitment ceremony of two women. The Hugenins, who own a photography business, claimed in Elane Photography v. Willock that by refusing to provide the service, they were exercising their right to free speech as guaranteed by the U.S. Constitution.
Hailing the decision, an article penned by John Gallagher of Queerty – an online news service providing news “Free of agenda, except that gay one” – declared “Right-wing activists had championed the case and used it as the basis for pushing “religious liberty” laws in multiple state legislatures, including Arizona.” Some observers are heralding the deferral as a victory for gay rights. “The Supreme Court of the United States today has paved the way for robust enforcement of non-discrimination laws,” said Sarah Warbelow, a senior legal advisor at the Human Rights Campaign, a gay rights advocacy group. “When businesses open their doors to the public, they must abide by the law and not expect special treatment based on personal beliefs.”
It was in 2006 that Elaine and Jonathan Huguenin were asked by Vanessa Willock and Misti Collinsworth to photograph the commitment ceremony. The Huguenins argued in the case that providing the service would “require them to create expression conveying messages that conflict with their religious beliefs.” The human rights commission of New Mexico ruled that the Huguenins violated nondiscrimination protections. That ruling was upheld by the state Supreme Court.
Alliance Defending Freedom, a nonprofit law firm that argued in favor of the Hugenins in Elane Photography v. Willock, issued a statement following the high court’s decision to hold off on deciding whether it will review the case. According to ADF, the case involves “a New Mexico photographer punished for declining to use her creative talents to communicate a message with which she disagrees.” A statement on the ADF website quoted its senior counsel Jordan Lorence regarding the court’s action. “The fact that the justices took no action today means that, under the Supreme Court’s rules, the justices are actively considering the case. Most likely, the court will consider the case again on Friday. We hope that the justices will take the case and rule that the government cannot force people to express ideas they do not support.”
Some observers believe that in refusing to take up the Hugenins’ appeal, the Supreme Court is actually deferring to a case in heard in February, in which the Hobby Lobby store chain’s citing of religious teachings about contraception would allow an exemption from provisions of the Affordable Care Act, otherwise known as ‘Obamacare.’
According to ADF, the Hugenins were contacted via email in 2006 from a woman asking if they would photograph the “commitment ceremony” joining her to her same-sex partner. The email inquired also whether Elaine Hugenin would be “open to helping us celebrate our day….” Ms Hugenin declined. The woman who contacted the Hugenins, Vanessa Willock, found another photographer for the ceremony at a lower rate. Willock subsequently filed a complaint with the New Mexico Human Rights Commission.
The ADF website said, “After a one-day administrative trial in 2008, the commission ruled against the Huguenins and ordered them to pay $6,637.94 in attorneys’ fees to Willock. The case then made its way through the New Mexico state court system, and the New Mexico Supreme Court upheld the ruling. In a concurrence accompanying the court’s opinion, one of the justices wrote that the Huguenins “now are compelled by law to compromise the very religious beliefs that inspire their lives,” adding “it is the price of citizenship.””
ADF Senior Counsel Lorence expressed disappointment with the court’s deferral of the case, while signalling that the court may have other opportunities to address the issue in other cases it is now considering. Saying that “unjust laws” separate people from their beliefs, Lorence said “The First Amendment protects our freedom to speak or not speak on any issue without fear of punishment.”
ADF cited polling data to show that there is public support of the Hugenins’ refusal to provide services to the same-sex couple. According to ADF, a July 2013 Rasmussen poll found that 85 percent of Americans believe a Christian photographer has the right to refuse to take pictures at a same-sex ceremony that conflicts with the photographer’s religious beliefs.
The Elane Photography case focused only on the 1st Amendment and freedom of speech. ADF lawyers argued that state anti-discrimination law in New Mexico would compel Elaine Hugenin to “create expression” in violation of her religious beliefs. Critics called the law a form of "compelled speech." The ADF appeal argued that New Mexico’s law, when applied broadly, would “require individuals who create expression for a living -- like marketers, advertisers, publicists and website designers -- to speak in conflict with their consciences.”
UCLA law professor Eugene Volokh and the libertarian Cato Institute’s Ilya Shapiro filed a separate brief urging the court to hear the case. They argued that First Amendment protections apply to writers, singers, actors or artists whose work involves expression, but such protection is limited and should not lead to “denials of service by caterers, hotels, limousine service operators and the like.”
Ruling against Elaine Hugenin, the New Mexico Supreme Court refused “to draw the line between ‘creative’ or ‘expressive' professionals and all others.” For example, its judges said, like bakers of wedding cakes, a “flower shop is not intuitively ‘expressive’, but florists use artistic skills and training to design and construct floral displays.” The court added, “Courts cannot be in the business of deciding which businesses are sufficiently artistic to warrant exemptions from anti-discrimination laws.”
Related cases wending their way through other jurisdictions include: Ingersoll v. Arlene’s Flowers, Craig v. Masterpiece Cakeshop, and Baker v. Hands On Originals.