New Mexico case raises tolerance issues

September 18, 2012


— Elaine Huguenin, who with her husband operates Elane Photography in New Mexico, asks only to be let alone. But instead of being allowed a reasonable zone of sovereignty in which to live her life in accordance with her beliefs, she is being bullied by people wielding government power.

In 2006, Vanessa Willock, who was in a same-sex relationship, emailed Elane Photography about photographing a “commitment ceremony” she and her partner were planning. Willock said this would be a “same-gender ceremony.” Elane Photography responded that it photographed “traditional weddings.” The Huguenins are Christians who, for religious reasons, disapprove of same-sex unions. Willock sent a second email asking whether this meant that the company “does not offer photography services to same-sex couples.” Elane Photography responded “you are correct.”

Willock could then have said regarding Elane Photography what many same-sex couples have long hoped a tolerant society would say regarding them — “live and let live.” Willock could have hired a photographer with no objections to such events. Instead, Willock and her partner set out to break the Huguenins to the state’s saddle.

Willock’s partner, without disclosing her relationship with Willock, emailed Elane Photography. She said she was getting married — actually, she and Willock were having a “commitment ceremony” because New Mexico does not recognize same-sex marriages — and asked if the company would travel to photograph it. The company said yes. Willock’s partner never responded.

Instead, Willock, spoiling for a fight, filed a discrimination claim with the New Mexico Human Rights Commission, charging that Elane Photography is a “public accommodation,” akin to a hotel or restaurant, that denied her its services because of her sexual orientation. The NMHRC found against Elane and ordered it to pay $6,600 in attorney fees.

But what a tangled web we weave when we undertake to regulate more and more behaviors under overlapping codifications of conflicting rights. Elaine Huguenin says she is being denied her right to the “free exercise” of religion guaranteed by the U.S. Constitution’s First Amendment and a similar provision in the New Mexico constitution. Furthermore, New Mexico’s Religious Freedom Restoration Act defines “free exercise” as “an act or a refusal to act that is substantially motivated by religious belief,” and forbids government from abridging that right except to “further a compelling government interest.”

So New Mexico, whose marriage laws discriminate against same-sex unions, has a “compelling interest” in compelling Huguenin to provide a service she finds repugnant and others would provide? Strange.

Eugene Volokh of the UCLA School of Law thinks Huguenin can also make a “compelled speech argument”: She cannot be coerced into creating expressive works, such as photographs, which express something she is uncomfortable expressing. Courts have repeatedly held that freedom of speech and the freedom not to speak are “complementary components of the broader concept of ‘individual freedom of mind.’”

A New Mexico court, however, has held that Elane Photography is merely “a conduit for another’s expression.” But the U.S. Supreme Court (upholding the right of a person to obscure the words “Live Free or Die” on New Hampshire’s license plates) has affirmed the right not to be compelled to be conduits of others’ expression.

New Mexico’s Supreme Court is going to sort all this out, which has been thoroughly reported and discussed by the invaluable blog The Volokh Conspiracy, where you can ponder this: In jurisdictions such as the District of Columbia and Seattle, which ban discrimination on the basis of political affiliation or ideology, would a photographer, even a Jewish photographer, be compelled to record a Nazi Party ceremony?

The Huguenin case demonstrates how advocates of tolerance become tyrannical. First, a disputed behavior, such as sexual activities between people of the same sex, is declared so personal and intimate that government should have no jurisdiction over it. Then, having won recognition of what Louis Brandeis, a pioneer of the privacy right, called “the right to be let alone,” some who have benefited from this achievement assert a right not to let other people alone. It is the right to coerce anyone who disapproves of the now protected behavior into acting as though they approve it, or at least into not acting on their disapproval.

So, in the name of tolerance, government declares intolerable individuals such as the Huguenins, who disapprove of a certain behavior but ask only to be let alone in their quiet disapproval. Perhaps advocates of gay rights should begin to restrain the bullies in their ranks.

— George Will is a columnist for Washington Post Writers Group.    


purplesage 1 year, 6 months ago

Orwell uses flawed reasoning in attempting to equate homosexuality with race. It is not the same thing. And it points out the danger of tryng to equale morality with simple bio-chemical connections in the body, void of a moral sense.

Southern Baptists have an African-American convention president. They are the most ethnically diverse religious body in America. There have been official acknowledgements and apologies for a "racist past."

America is still a racist culture. Only God's kingdom will erase those differences. The Bible makes distinction between belief and unbelief, not skin pigmentation. It does, however, list homosexuality among other sexual sins - including heterosexual sin such as adultery and fornication.


jesse499 1 year, 7 months ago

What about all these stores that have a sign no shirt,no shoes,no service if a owner of a business doesn't have a right to say who he does business with this is bigotry to.


verity 1 year, 7 months ago

So if I just say I have headache, nobody can make me do it?


tange 1 year, 7 months ago

Ok, cait, verity, and bea, turn in your Barney slippers and rainbow tiaras, immediately.


none2 1 year, 7 months ago

I have to say that I too have mixed feelings on this issue.

Forget the whole gay issue, and consider other situations. Lets say you are putting on a banquet, and the menu is to have meat dishes. Your chief gets ill, and you call someone up who you know is a chief, but who you know is either vegan or a kosher chief. If that chief turns you down, is that chief a bigot against non-vegans or non-kosher people whatever the case may be?


jesse499 1 year, 7 months ago

Amazeing the bigotry showing on this page for somebodys religious beliefs bigotry works both ways doesn't it.


Agnostick 1 year, 7 months ago

Even a broken clock is right twice a day. George Will being today's broken clock.

I agree with cait48, as well. Somewhere along the way, we all make persuasive or dissuasive recommendations about businesses--and they're not always based exclusively on the product or service in question.

"Joe's Auto fixed my car again, but I'm tired of that one mechanic staring at my breasts or looking down my blouse every time I go in there."

"Sure, the food's good--but the place smells like an ashtray, even though they've been non-smoking for five years!"

"I used to enjoy going there for a drink on the weekends, but that new bartender is always telling racist jokes. I told the owner about it, but it's still going on..."

If the photographer doesn't want to cover a same-sex wedding ceremony, they shouldn't have to. They shouldn't be required to photograph Ku Klux Klan ceremonies, either... or some guy who wants explicit photos of he and his wife having sex with another woman. Let her pick and choose her own clients--and let those dollars find their way into another photographer's pockets.

This case started five years ago. I'll bet Willock and her partner, upon sharing their frustrations, were probably deluged with offers from other nearby photographers who were eager, willing, and happy to make some money.


uggadyboogadyboo 1 year, 7 months ago

Does anyone remember the shakers..........NEXT

I support gay contracts, not marriage. I believe they have a right to be as miserable as the rest of us.

"They say that all men have homosexual fantasy . So I'm sittin around the house one day and I realized theres no way I could have a homosexual fantasy " Sam Kinison.......

..Google this , its funny. ... sam Kinison and rock hudson you tube


consumer1 1 year, 7 months ago

Great article pointing out hypocracy.


beatrice 1 year, 7 months ago

The photographers are independent contractors, not a "public accomodation." Building contractors have a right to turn a job down a construction job if it isn't right for them, and I agree with the photographers' right to turn down a job. If I were a photographer, I wouldn't want to photograph a white supremacist wedding. On this one, I side with the photographers.

Not that I am comparing gay marriage with the white supremacist movement. I just picked something I find objectionable. For some reason, others find gay marriage objectionable. So be it.

Besides, who would want to force a photographer to take a job? Talk aobut adding to your chances of pictures in which everyone is out of focus with their heads chopped off.


Kathy Getto 1 year, 7 months ago

The constitutional interest of public access more often than not outweigh the liberties of the individuals. Pretty cut and dried IMHO. I would suggest that the practice of religion not be involved in a business venture.


jafs 1 year, 7 months ago

"The Huguenins are Christians, who for religious reasons, disapprove of same-sex unions."

Bigot: A person obstinately or intolerantly devoted to his or her own opinions and prejudices. Bigotry: 2. Acts or beliefs characteristic of a bigot.

Certainly seems to me that believing in your religious opinions so intolerantly and acting on them by refusing to photograph somebody's commitment ceremony qualifies as bigotry, based on the above definition.

But, this is in general an interesting and grey area for me - religious freedom is a foundational principle of our system, but at the same time there are other rights that we have, and have developed over time. When these things conflict, it's not always easy to sort them out.

If we decide that gay and lesbian people have the right not to be discriminated against, how do we at the same time protect the right of religious folks to practice their religion, which may involve decisions like this one?


jhawkinsf 1 year, 7 months ago

If you are going to engage in interstate commerce in this country, you're going to have to follow the rules.


verity 1 year, 7 months ago

While I think that Mr Will's particular brand of snark leaves something to be desired and tends to put me off, this does seem to be a gray area and is deserving of honest discussion.

My first reaction was to agree with Cait, but as I think about it, I'm not sure. Would it have been illegal for them to refuse to photograph a ceremony between two different races if they disapproved? While same-sex marriage is not legal in New Mexico, apparently same-sex commitment ceremonies haven't been outlawed.

As a semi-professional photographer, I can imagine being asked to photograph any number of things I find offensive. Should I be compelled to photograph an execution?

That said, there are battles that need to be fought and those that just seem to be vengeful and even counter productive. I don't think this one furthered anybody's cause.


geekin_topekan 1 year, 7 months ago

But the have no problem photographing those free-for-all orgies known as Christian weddings? Why the double standard?

LJWorld publicly invites us to approve those filthy orgies in their Marriage section every Monday AM.


MrsPeenman_IV 1 year, 7 months ago

"The Huguenin case demonstrates how advocates of tolerance become tyrannical."

Nailhead, meet hammer. We've had a heapin' helpin' of this and get used to it.


rockchalker52 1 year, 7 months ago

Same-sex marriage should be legal, but the photogs got hosed.


just_another_bozo_on_this_bus 1 year, 7 months ago

They were asked to shoot a commitment ceremony, not a lesbian orgy. So, yes, they are bigoted.

But I agree that they should have the right to turn down any job they don't want to do. However, that does beg the question of where the line gets drawn on discriminatory behavior. If they ran a public hall that regularly does weddings, should they be allowed to discriminate in such a way?


Cait McKnelly 1 year, 7 months ago

I'm going to say something that may make the jaws of a number of people on this board drop. I actually agree with George Will. At least in this instance.
This is not the same as denying someone the right to education, housing or employment. Nor is it the same as publicly refusing to seat someone in a restaurant or rent them a hotel room. This was an attempt to privately contract someone for a service and if they didn't want to do it then so be it. Who cares what their reason was? Go find someone else.
Over the years I have found the biggest deterrent to bigotry, hatred and fear is education, not the law. People like this photo business will eventually find themselves on the wrong side of history and, if nothing else, the opinion of society will force them to do the right thing or they will lose their business. So no, I don't agree with suing them. On the other hand, making it publicly known what bigoted jerks they are is an entirely different matter. Go for it.


Armstrong 1 year, 7 months ago

Here we go, popcorn anyone ?


Orwell 1 year, 7 months ago

Right, George... and the good Southern Baptists who didn't approve of mixing races at their lunch counters should have been left alone, eh?


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