Mirror of Justice

Continuing in the threats to conscience vein ....  Eugene Volokh reports:

Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane's work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock's same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney's fees and costs.

Eugene goes on to discuss Elane's legal objections to this sanction.  One is the First Amendment's right against compelled speech (Board of Education v. Barnette), based on the argument that the photographer is compelled to use her artistic talent to present positive images of an event she opposes.  Another is the New Mexico state Religious Freedom Restoration Act, which requires that the state justify any substantial burden it imposes on religion as "essential to further a compelling governmental interest" and as the "least restrictive means of furthering" that interest.  Statutes like this, also in force for the federal government and about a dozen other states, provide legal authority for giving weight both to religious conscience and to governmental interests in particular contexts.  In this case it's the photographer's interest in freedom of conscience against government sanctions, versus -- and let's put it in the strongest light -- the couple's interest in carrying out their conscientious decision to make a public commitment to each other with the assistance of various commercial services that one expects to be able to make such events memorable.

It seems very likely than in Albuquerque, the couple can go the next wedding photographer in the phone book or online and secure its services.  To help the couple can avoid this inconvenience, the state proposes to drive out of the wedding-photography business anyone who won't participate in commemorating same-sex marriages or commitment ceremonies.  I would think that the effect on the photographer (who has probably made some investment in that business) is typically much greater than the effect on the couple who can usually obtain another photographer easily.  Thus this seems like one of the many cases in which an exemption preserves the ability of the people on both sides to follow their consciences.

As Eugene notes, though, antidiscrimination plaintiffs and state antidiscrimination agencies argue that each act of discrimination itself violates a compelling interest in nondiscrimination, so the availability of other services (photographers or whatever) is irrelevant.  This argument has basically been accepted in the case of race discrimination, where exemptions are almost always refused even if done by a few isolated entities (think, for example, the Bob Jones University case).  But as Rob and others have  argued, the prohibition on race discrimination in commercial activities came after a long national debate (with just a few battles and protest marches along the way) out of which an overwhelming consensus emerged about the wrongness of racial discrimination.  We are much, much earlier in the process of debating the legitimacy of same-sex marriage.  Giving conscience serious but sensible protection includes leaving room for that debate to happen before the government throws its weight in by sanctioning those who carry their belief (on one side or the other) into their work lives.

It's especially silly, of course, that the state should punish private citizens for doing the very thing that the state itself does: refuse to recognize or participate in a same-sex marriage.  That certainly undercuts any allegedly compelling nature of the state's interest here; and it dramatizes how misguided it is for the state to try to pressure people on the same-sex marriage issue at this stage in the debate (when the state isn't even willing to take the step itself), unless same-sex couples are really unable to get services.  Even if or when the state recognizes same-sex marriage, the photographer's conscience should be protected when other photographers are available; but the state's coercion of conscience at this point in time is even more unwarranted.

Tom