When Rights Clash.

Compelled-Speech-ROH Or, “When The Slippery Slope Slides In All Directions.”

In a much watched case, the New Mexico Supreme Court ruled unanimously that a photographer could not refuse to photograph a committment / wedding ceremony between a gay couple due to the religious beliefs of the photographer.

The case is Elane Photography LLC v. Vanessa Willock .

Vanessa Willock contacted Elane Photography inquiring about pricing and services for her committment ceremony to another woman. The owner of Elane Photography, Elaine Huguenin, informed Willock that due to her religious convictions, she would not be interested in supplying photographic services for the wedding.

Willock filed a complaint in New Mexico claiming Elane Photography had violated New Mexico’s Human Rights Act (NMHRA) which states that it is illegal for….

any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap (emphasis ours

The New Mexico Human Rights Commission ruled in favor of Willock. Huguenin appealed to a District Court and after losing there, appealed to the New Mexico Supreme Court.

While this may seem like a slam dunk case against Huguenin, surprisingly the case has implications for everyone.

Huguenin argued that the photography was a form of expression and that under the First Amendment, the state could neither compel nor restrict expression or speech.

Huguenin felt she had found support in the Supreme Court case of Wooley v Maynard.

In that case, New Hampshire resident Maynard and his wife were devout Jehovah Witnesses whose religious beliefs forbid taking or adhering to any oath such as the state motto of “Live Free or Die” found on automobile license plates. Maynard took to covering the motto up, resulting in his being cited three times, convicted and serving time in prison.

Maynard sued arguing in part the state could not force him to express ideas with which he disagreed. The Supreme Court held:

2. The State may not constitutionally require an individual to participate [p706] in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. Pp. 71717.

(a) New Hampshire’s statute, by forcing an individual, as part of his daily life — indeed, constantly while his automobile is in public view — to be an instrument for advocating public adherence to an ideological point of view he finds unacceptable, “invades the sphere of intellect and spirit which it is the purpose of the First Amendment . . . to reserve from all official control,” Board of Education v. Barnette, 319 U.S. 624, 642. Pp. 714-715.

Noted UCLA law professor Eugene Volokh argued in an amicus brief that Huguenin’s photography was a form of expression and therefore the Wooley decision prohibited the state from forcing Huguenin to create or express herself in a manner mandated by the State of New Mexico.

Volokh then argued one of the many “slippery sloops” of this case saying if allowed to stand, the lower court ruling would mean a professional press release author who was an atheist could be forced to write a press release praising a religion or religious activity. An avowed feminist could be forced to create a release in support of a “men’s only” social club.

(It should be noted that Volokh and others who signed onto the amicus brief support gay marriage. To them this is not about gay marriage but rather a clear violation of the First Amendment.)

Huguenin also argued her refusal to do the job was not based on Willock being gay, but rather Huguenin being asked to photograph an activity (the wedding) with which Huguenin disagreed on religious grounds. Huguenin stated that she would happily take photos of a gay person (such as a portrait) but just not photos that promoted a lifestyle or activity contrary to her religious beliefs.

The New Mexico Supreme Court rejected that argument. In fact, it rejected the argument that a ruling against Huguenin would force an African-American to accept being hired to take pictures of a KKK rally. In rejecting the KKK “sli[pery slope,” the Court said the African Ametican could refuse to be hired by the LKK because they wpuld be rejecting the job because of the activities, and not the race of the KKK members.

It seems to us that is the same argument Huguenin was making – that her rejecting the hire was because of the activity and not because of the sexual orientation of Willock.

Another “slippery slope” argument is that if Huguenin was allowed to turn the gay couple away, it would take us back to a time when blacks could not eat at a lunch counter because of some religious belief. While at first glance that argument seems compelling, eating lunch is not an act of expression. It is not speech.

We, and we would hope all people reading this, agree that we don’t want people turned away from a business because of their race, beliefs, sex, etc. The renting of a hall, apartment, buying a car, etc does not require creative thought or expression.

However, if Huguenin won her case, we can see some misguided people trying to make the argument that their religious beliefs prevented them from renting to a woman, a Jew, etc., and down the slope we go.

In essence, we see this case as a clash between the rights of two people: the right of Willock to be treated equally under the law and the right of Huguenin to hold her religious beliefs as well as her right of free speech.

Typically, when two rights clash, the path of least resistance is taken. This is the path of the easiest and least intrusive accomodation.

For Huguenin, the Court is saying she must put her heart and soul into something that supports something that is contrary to her religious beliefs.

For Willock, the accomodation would be to find another photographer. In that Willock contacted Elane Photography while searching for a photographer (in other words, Huguenin was not contacted because of her reputation) and there are over one hundred other wedding photographers in the area, we would think the least intrusive accomodation is for Willock to find another photographer.

However, that is not what the Court found. Saying that as Elane Photography was in the public sector, Huguenin was the one who had to make the accomodation.

As we said, this is a case where there are many slippery slopes. If one agrees with Willock, one believes the government can force people to do something that is against a fundamental right.

If one agrees with Huguenin, one must realize this can lead to other acts of actual intolerance.

It is a difficult case and as the saying goes, “tough cases make bad laws.”

As for us, we believe the fact that accomodations for Willock can be made without trampling on two parts of Huguenin’s First Amendment rights (freedom of religion and speech) leans the case ever so slightly in favor of Huguenin.

And we meanever so slightly.


Well, in part it is because of the last two paragraphs of the opinion:

On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

{92}In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.

It seems to us that the justices are saying that in being “tolerant” of others ideas and beliefs, we must surrender our natural rights.

That is a scary proposition.

If Willock hires another photographer, there is no harm to her. If Huguenin is forced to express herself in a way that is contrary to her beliefs, there is harm to her.

How is it that the Justices demand Huguenin be tolerant of Willock’s beliefs, but Willock does not have to be tolerant of Huguenin’s beliefs?

“Tolerance” is never done at the expense of natural rights.

To demand such an errosion of rights is not part of this country, it is anathema to it.

5 Responses to “When Rights Clash.”

  1. […] Raised On Hoecakes discusses when rights clash […]

  2. Steve Bussey says:

    As a radio talk show host I occasionally had people call the show and allege some private group, club or committee violated their 1st Amendment right of free speech by not letting them speak on a certain issue and I always told them the same thing; it is impossible for a private organization to violate the 1st Amendment, or any amendment, because the Bill of Rights protects us from government and not private individuals or groups. I hate discrimination as much as the next guy but the fact is that all Americans, even those running businesses of public accommodation, have a right to discriminate, politicized court opinions notwithstanding.

    Cases like this are exactly why then Senator Barry Goldwater opposed the Civil Rights Act of 1964, because it set up the possibility of both federal and state unconstitutional overreach.

    One person’s or group’s “rights” cannot take precedence over another’s and nobody in America has a “right” or the power to compel another to provide goods, services or time for any reason.

  3. John Fergus says:

    Mr. Afterwit,

    Mr. Bussey comments that, “One person’s or group’s “rights” cannot take precedence over another’s and nobody in America has a “right” or the power to compel another to provide goods, services or time for any reason.”

    I ask Mr. Bussey, does that mean that I have the right – based on their ethnicity – to refuse to serve a Black, a Jew, or a Hispanic person if I operate a restaurant? Or to refuse to provide accommodations if I operate a hotel? Or to sell them my home?

    I grew up in the days of segregation in the South. I recall the White and Colored restrooms and water fountains I encountered during a family trip to Virginia. I recall when Jews could not purchase a home in our community in New Jersey and Blacks were excluded from the country club.

    If Mr. Bussey believes as a plain reading of his statement suggests, that discrimination based on ethnicity is a right, does that mean he would be willing to return to the days prior to the Civil Rights Act (given human nature and persistent animus among a segment of our society)? Would he be willing to accept the presence of reverse ghettos: communities where Blacks, Jews, Hispanics, Whomever would be denied access to goods and services, effectively excluding them from the community or relegating them to a subservient status?

    If Mr. Bussey hates discrimination as much as the next guy, and had the opportunity to annul the Civil Rights Act, how would he propose ethnic discrimination be addressed so as not to return to conditions as they were prior to that act? I expect today we might even add those with Middle Eastern backgrounds to our list of those excluded.

    If the answer to the last question is to let the free market operate, or to let the states address the issue, then I ask why those mechanisms were ineffective for so long, a century, even in the face of the activism of the decade prior to 1964?

    I ask these questions despite agreeing with your opinion that the court got the balance wrong in the case cited, noting the case did not involve ethnicity.

    Thank you. A thought-provoking piece.


  4. Steve Bussey says:

    What I prefer is a return to freedom with all of its warts and problems because there is no acceptable alternative. I prefer a shift away from government tyranny, despotism and social engineering at the tip of the government sword.

    Sure, there will be discrimination and prejudice – there always is. But freedom means that people are free not to patronize those businesses and I personally believe they should not.

    Freedom can be a very difficult and even dangerous proposition but there is no acceptable alternative and there are no acceptable levels or types of government tyranny and despotism. The ends do not justify the means.

  5. steve bussey says:

    Also what I’m saying is that, like it or not, every single proscription in the Bill of Rights protecting our civil rights is a proscription against government intrusion and not against individual intrusion or infringement. The government at any level simply does not have the authority the State of New Mexico is enforcing.

  6. AAfterwit says:

    Just to let you both know, we have a post expanding on this one going up on August 28.

    Thanks for the civil and interesting discussion.

  7. […] few days ago we wrote a post concerning the New Mexico State Supreme Court decision in the case of Elane Photography LLC v. […]