Tuesday, June 5, 2012

New Mexico Photographers Cannot Refuse Same Sex Wedding Work - They Just Like the Cable Guy

It's pretty amazing that in New Mexico State Courts  the Elane Photography case is still around. I suspect with some appeals that I think will be successful it might indeed be around a while longer.

The New Mexico Court of Appeals ruled that Elane Photography could be held liable for refuse too gives their services to a same sex wedding.

Volokh Conspiracy has two good posts on the case. See Wedding Photographer May Be Required (on Pain of Legal Liability) to Photograph Same-Sex Commitment Ceremonies , and Do Religious Freedom Restoration Acts Apply When Courts Enforce Civil Causes of Action?

I agree with the writer that it seems the Mexico Appeals Court is wrong headed on both accounts. I find the argument that a photographer is more like a cable operator serving  as a conduit for speech and is not a speaker itself wrong. It seems common sense the a person's artistic ability often plays a critical role in capturing the moment at events ( DITTO ON WEDDINGS ) , and does not seem akin to a person's ability to get the cable tv running.

As he notes :

 Second, the reason people pay lots of money to hire wedding photographers is precisely that photography, including commercial wedding photography, involves a substantial degree of artistic judgment and expression on the photographer’s part. Elane Huguenin doesn’t create the things she photographs, but she stages the scenes, chooses the angles and lighting, and decides how to best create an artistic representation that is beautiful, and that properly celebrates the event being photographed. That is why photography is protected by copyright, which protects only creative expression; and even if she surrenders the copyright, or never exploits it, she will still have engaged in the creative expression that is protected by copyright — and by the First Amendment .


SJ Reidhead said...

I disagree. I've been writing about this since it first appeared. The photographer, who belongs to one of those 'we hate gay' churches was quite pointed in refusing to photograph a gay commitment ceremony. In New Mexico, this sort of discrimination is illegal.

The New Mexico Human Rights Act, N.M.S.A. § 28-1-7(F) is very specific in this.

Contrary to what is being reported, the ruling is that the service offered is like that of a restaurant, etc.

"...The Albuquerque Journal (http://bit.ly/JSAdE5) reports the court agreed on Thursday with a previous ruling, ruling the photo studio is considered public, similar to a restaurant or store..."

If you are open for business in the state of NM, where it is very difficult to be in business because of rules/regulations, then you follow the rules.

All these jerks needed to do was say they were booked. But - they had to do this huge anti-gay thing. It was done on purpose, to make a religious statement. I guess they have a right to refuse service, but it is like refusing service to someone because of race.

They refused to photograph a lesbian couple because they were "Christian". If you are a Christian, and Christ is Love, then you treat everyone decently with Christ's love. They blew it. Christ is about redeeming sinners. You don't do that by treating them like dirt.

The Pink Flamingo

James H said...

I think there can be a huge debate over motivation here. But in the end does that matter?

I do think the First Amendment Freedom of artistic expression issue is here. I am not sure how it can be contained.

I am not sure if it was ever the intent of these accomadation laws to go into places like this.

Further you do have the "religious" question. If a person thinks that the Sacrament is confected by the agreement of the parties and consent then being mandated to participate can get problematic.

We are seeing this problem with Judges ( that play I will admit a more direct role than Country Clerks or Photo people here)in the ceremony.

I guess my question is where does this stop. Can one be ordered to commission a painting? What about performing music if that is their business,

I bring that up because it seems a lot of this Court opinion hangs on the idea she is not really like any of those things I mentioned and more like the Cable guy .

Anonymous said...

How is race like behavior?

Anonymous said...

Aren't Cable Guys pretty easy to find? Why THIS Cable Guy ?