Anti-discrimination and the First Amendment: Elane Photography v. Willock

October 16, 2012

On May 31, the New Mexico Court of Appeals ruled in favor of Vanessa Willock, who sued photographer Elaine Huguenin for refusing to photograph Willock’s same-sex commitment ceremony (2012 WL 3756862).  Finding discrimination under the New Mexico Human Rights Act (N.M.S.A. 1978, 28-1-7), the Court ruled that Elane Photography, a “public accommodation” as a service provider, could not use free expression and free exercise of religion as defenses.

 [T]he mere fact that a business provides a good or service with a recognized expressive element does not allow the business to engage in discriminatory practices.

. . . .

While Elane Photography does exercise some degree of control over the photographs it is hired to take… this control does not transform the photographs into a message from Elane Photography.

. . . .

The NMHRA is not directed at religion or particular religious practices, but it is directed at persons engaged in commerce in New Mexico. Therefore, the NMHRA is a law of general applicability. As such, the government need not have a compelling interest to justify the burden it places on individuals who fall under its proscriptions.

 2012 WL 3756862

The New Mexico Supreme Court has granted certiorari (petition, 2012 WL 3923883).

The case highlights the conflict between anti-discrimination laws and First Amendment rights, and will likely draw still greater attention as the Court weighs these politically charged issues.

To view some of the case’s media buzz, try the following search in News on WestlawNext (ALLNEWS on Westlaw Classic):

elane /p willock

Run the same query in Secondary Sources on WestlawNext (TP-ALL on Westlaw Classic) for a number of thoughtful analyses, including “WHAT SAME-SEX-MARRIAGE AND RELIGIOUS-LIBERTY CLAIMS HAVE IN COMMON”, 5 NW J. L. & Soc. Pol’y 206.