Supreme Court declines to intervene in NM photographer's SSM objection

Can an artist be forced to perform for a ceremony that goes against their religious beliefs? In New Mexico, they can if they are engaging in commercial enterprise — and the Supreme Court apparently agrees. The justices denied certiorari for Elane Huguenin in her attempt to overturn the state Supreme Court decision finding her guilty of illegal discrimination:

The U.S. Supreme Court has declined to take up an appeal from a photographer who refused to shoot a same-sex commitment ceremony.

The court’s action leaves a lower court ruling in place, finding that the photographer violated a state anti-discrimination law.

Though the photographer, Elane Huguenin of Albuquerque, refused to photograph the ceremony on religious grounds, her appeal was based on a claim that her right of free expression as a creative artist allowed her to reject a client if the assignment would compel her to express an idea she opposes.

The issue in Elane Photography v Willock hinges on New Mexico’s public accommodation law, which keeps businesses from engaging in discrimination based on protected statuses. The state court ruled that the individual right of free speech and association did not transfer to their commercial business — even if it was just the event in question (a “commitment” ceremony, as New Mexico did not allow for same-sex marriage at the time) and not specifically the customers’ orientation. In fact, Vanessa Willock’s successful argument to the court emphasized that customers pay to have their own message expressed no matter what the event is, not the company’s.

That means that any businesses in the wedding industry must service any kind of wedding or commitment ceremony, even with the RFRA in place at the federal level. Unlike bakers objecting to servicing such events, though, photographers have to attend the entire event in order to fulfill their commercial obligations. The only option for Elane Photography in this case to keep with their religious practices in that regard would be to contract with another photographer to perform the work — which would be a reasonable accommodation, perhaps, but that won’t be much comfort for bakers and florists.

As I recall, it only takes four justices to vote to grant certiorari in appeals, and Elane Photography couldn’t get that with its claim of corporate speech protection under the First Amendment. Gabriel Malor warns people not to read too much into this, though:

We’ll see. It does say something about the limits of corporate-speech protection, though.