Court: New Mexico Court of Appeals; August 16, 2012; New Mexico; State Appellate Court
Elane Photography, LLC, owned by Elaine and Jonathan Huguenin, refused to photograph a commitment ceremony for Vanessa Willock and her same-sex partner, citing a policy against photographing events that contradict their religious beliefs about marriage. The owners believe that marriage should be between one man and one woman and view photography as an expressive art form that conveys their beliefs. Willock initially inquired about photography services for a same-gender ceremony and received a clear response that Elane Photography does not cater to same-sex weddings. Following a formal complaint, the New Mexico Human Rights Commission (NMHRC) found Elane Photography to be a public accommodation that violated the New Mexico Human Rights Act by discriminating against Willock based on her sexual orientation. The NMHRC ordered the company to pay Willock $6,637.94 in attorney fees and costs, although she did not seek monetary damages. The district court's decision in favor of Willock was affirmed.
Elane Photography appealed the district court's ruling, seeking a review of the New Mexico Human Rights Commission’s (NMHRC) decision, which classified it as a 'public accommodation' under the New Mexico Human Rights Act (NMHRA) and found it had discriminated against Willock based on her sexual orientation. The appeal raised concerns regarding violations of the First Amendment rights to freedom of speech and religion, as well as claims under the New Mexico Religious Freedom Restoration Act (NMRFRA). Both parties submitted motions for summary judgment, with the district court denying Elane Photography's motion while granting Willock’s, thereby upholding the NMHRC's determinations.
Elane Photography contends that Willock did not demonstrate a violation of the NMHRA, asserting that applying the NMHRA in this case infringes on constitutional and statutory rights. It argues specifically that it does not qualify as a 'public accommodation' under NMHRA definitions and that its actions did not constitute discrimination based on sexual orientation. The NMHRA prohibits discrimination in public accommodations based on various characteristics, including sexual orientation. The definition of 'public accommodation' excludes establishments that are distinctly private. Elane Photography references precedent to argue that it does not fit within the traditional categories of public accommodation.
The Supreme Court of New Mexico previously addressed the definition of 'public accommodation' within the context of the New Mexico Human Rights Act (NMHRA) in the Regents case, which examined a specific higher education scenario. Elane Photography asserts that Regents is the only relevant case on this issue and advocates for a broad interpretation of its findings. It argues that traditional public accommodations offer essential and standardized services, while its own services are unique and discretionary, thus not fitting the traditional definition. However, this broad interpretation conflicts with the Supreme Court's narrow holding in Regents, which stated that the University’s administration of its nursing program did not qualify as a public accommodation under the NMHRA. The Court emphasized that the legislative intent behind the NMHRA’s expansion was not to automatically include all historically excluded establishments. It limited its ruling, leaving open the question of whether the University could be considered a public accommodation under different circumstances and did not provide guidance on how the expanded NMHRA might apply to non-traditional businesses. Consequently, lower courts are not bound by the Regents decision in future cases, and each case must be evaluated independently, considering relevant authorities and federal civil rights adjudication for interpreting the NMHRA.
The Supreme Court's analysis in Regents is deemed narrow and not directly applicable to this case. The focus shifts to the NMHRA statute's language to define its current scope. The plain language serves as the primary guide for discerning legislative intent, and the agency's administrative interpretations carry persuasive weight. Statutory interpretation aims to understand and implement legislative intent, using the ordinary meanings of words unless ambiguity is present. If the statute's language is clear and unambiguous, it must be given effect without further interpretation.
Elane Photography does not argue that the language in Section 28-1-2(H) is ambiguous; rather, it seeks a determination that photography does not qualify as an essential service under a more restrictive definition of 'public accommodations' or requests an exception for businesses with creative, expressive, or artistic elements protected by the First Amendment. The court emphasizes that it will not insert language into a statute that is not present. It agrees with Willock that the NMHRA's expansive language extends protections to various commercial activities beyond traditional definitions of public accommodation. The Legislature has amended the statute to broaden its definition, replacing specific places of accommodation with a general description that encompasses any establishment providing services, facilities, or goods to the public, with only one inapplicable exception. The court will also consider precedents from other jurisdictions that have evolved since the Regents decision to assist in interpreting the NMHRA's broader language.
Cases interpreting public accommodations statutes with broad language have contributed to a national trend that redefines what constitutes a 'public accommodation.' The U.S. Supreme Court in Roberts highlighted Minnesota's functional definition of public accommodations, which encompasses various public and quasi-commercial activities, reflecting the evolving American economy. The Court stressed that the civil rights objective is to address the degradation of personal dignity linked to unequal access to public entities. Similarly, New Jersey's Superior Court underscored that a hallmark of public accommodation is the invitation extended to the public at large.
Elane Photography contends that these expansive definitions overlook the unique artistic nature of its services. However, it fails to recognize that its photography business operates within the modern commercial landscape, offering services to the general public. Willock counters Elane Photography's argument by citing numerous jurisdictions that have adopted broad definitions of public accommodations, including businesses that serve the general public without recognizing exceptions for artistic or discretionary services. Notably, jurisdictions acknowledging broader definitions reflect the changes in modern commerce, and Elane Photography actively markets its services widely, utilizing various platforms without selective targeting.
Elane Photography is classified as a public business and commercial enterprise under the New Mexico Human Rights Act (NMHRA), which aims to extend anti-discrimination protections to most public commerce establishments. Consequently, Elane Photography is deemed a public accommodation and is prohibited from discriminating against any protected class under the NMHRA.
In assessing whether Elane Photography discriminated against Willock based on sexual orientation, the key issue is whether its actions were motivated by impermissible discrimination. The complainant bears the burden of establishing a prima facie case of discrimination, which can be proven through direct or indirect evidence. Summary judgment is appropriate when no genuine material facts exist.
Elane Photography contended that its refusal to photograph Willock's same-sex commitment ceremony was not based on her sexual orientation but rather on its policy and the owners' religious beliefs regarding marriage. It argued that it would provide photography services to Willock in other contexts, asserting that the refusal was based solely on the message conveyed by the same-sex ceremony.
However, this rationale was deemed insufficient as it attempts to separate Willock's participation in the ceremony from her sexual orientation, which the law does not permit. The U.S. Supreme Court has previously indicated that distinguishing between status and conduct in discrimination cases is inappropriate, particularly when the conduct in question is intrinsically linked to being homosexual. Thus, the refusal to provide services based on the context of the event constitutes discrimination against Willock as a member of a protected class.
Elane Photography presents a hypothetical scenario involving an African-American photographer who refuses to photograph a Ku-Klux-Klan rally, arguing that it would be unreasonable to find discrimination based on race in this context. However, the court counters that once a service is offered publicly, it must be provided without discriminatory exceptions. The court emphasizes that the Ku-Klux-Klan is not a protected class, unlike sexual orientation. Willock successfully demonstrates that Elane Photography intentionally discriminated against her based on her sexual orientation, as evidenced by the company's categorical refusal to photograph same-sex weddings, which constitutes direct evidence of discrimination under the New Mexico Human Rights Act (NMHRA). The refusal is highlighted in communications where Elane Photography explicitly states its discriminatory policy against same-sex weddings, indicating a violation of the NMHRA. Willock's inquiry and the differing responses to same-sex versus unspecified wedding inquiries further support the claim of discrimination. The court affirms the district court's denial of Elane Photography’s motion for summary judgment and the grant of Willock's motion, establishing that Elane Photography's refusal was based on impermissible criteria. Additionally, the court considers whether enforcing the NMHRA infringes on Elane Photography's freedom of expression under the First Amendment, as the company argues that its wedding photography is a form of artistic expression entitled to protection.
The First Amendment's protection of freedom of expression encompasses not only verbal and written forms but also expressive conduct and artistic expression, including photography with communicative intent. However, while photography may qualify for First Amendment protections, commercial activities involving photography do not automatically receive such protections. The key issue is whether Elane Photography's actions are predominantly expressive. The Supreme Court has emphasized that First Amendment protections are limited to conduct that is inherently expressive, and not all activities, even if they contain a kernel of expression, qualify for protection. For instance, conduct without an intended message, such as marching without purpose, does not warrant First Amendment coverage. Laws that regulate conduct rather than expression do not infringe on First Amendment rights, as illustrated in Rumsfeld v. Forum for Academic Inst. Rights, where a law requiring equal access for military recruiters was upheld as regulating conduct. Elane Photography's argument that its services involve inherently expressive activities does not justify discriminatory practices, as established in Hishon v. King & Spalding, which ruled that professional conduct cannot be excused under First Amendment claims. Furthermore, while Elane Photography exercises control over its photographic work, this does not elevate its services to the level of expressing its own message.
The Supreme Court's decision in Hurley clarified that compelling a parade to include certain groups would force it to convey a specific message, as parades are not seen as neutral expressions. In contrast, Rumsfeld determined that a law school's treatment of military recruiters was only expressive due to accompanying speech, highlighting that observers cannot infer a school's stance merely from recruiters' presence. Similarly, the New Mexico Human Rights Act (NMHRA) regulates Elane Photography's commercial conduct, not its speech regarding same-sex relationships. Taking photographs for hire is not inherently expressive, as an observer could misinterpret the nature of Elane Photography's services without any explicit endorsement of same-sex ceremonies. The act of photographing a same-sex commitment ceremony does not automatically convey approval from Elane Photography, similar to the ambiguity surrounding military recruiters. The NMHRA prohibits discrimination in public services but does not require Elane Photography to publicly align with its clients or their messages. The company retains copyright over the photographs and can choose how to display them, but without additional actions to promote the photographs, its conduct does not express a message. Consequently, the NMHRA’s regulations are deemed neutral and do not infringe upon freedom of speech or compel expression, affirming the district court’s ruling.
Elane Photography claims that enforcing the New Mexico Human Rights Act (NMHRA) to require it to photograph a same-sex ceremony infringes on its owners' right to freely exercise their religion, as protected by both federal and state constitutions. The company argues for a strict scrutiny analysis based on three points: (1) the New Mexico Constitution offers broader protections than the federal Constitution; (2) the NMHRA is not generally applicable; and (3) the hybrid rights theory necessitates strict scrutiny.
Elane Photography cites Article II, Section 11 of the New Mexico Constitution, which prohibits compelling attendance at religious services, arguing for a broad interpretation that supports its position. However, it fails to provide precedent to substantiate this interpretation and acknowledges that issues raised without cited authority will not be considered on appeal. The court notes that it has not identified an analysis justifying a departure from federal First Amendment standards. It emphasizes that both the New Mexico and federal provisions aim to prevent compulsory participation in religious practices, and past rulings have treated them as equivalent.
Regarding the NMHRA's applicability, the court reiterates that while free exercise rights are implicated when laws burden religious practices, individuals are still bound to comply with valid, neutral laws of general applicability, referencing the Supreme Court case Employment Division v. Smith. Thus, the court indicates it will apply federal standards to evaluate the free exercise claim put forth by Elane Photography.
The principle of neutrality and general applicability, reaffirmed in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., supports the argument that the New Mexico Human Rights Act (NMHRA) is a neutral statute. Elane Photography contends that the district court failed to adequately distinguish between neutrality and general applicability, arguing for a strict scrutiny analysis based on the precedent set in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. However, it is established that a law that burdens religious practices does not require a compelling governmental interest if it is both neutral and generally applicable. Elane Photography claims that the NMHRA lacks general applicability due to secular and religious exemptions that undermine its purpose, but the counterargument asserts that a statute is generally applicable if it does not impose selective burdens on specific groups. The NMHRA operates broadly across all citizens engaging in public commerce, and any burden it imposes on religious beliefs is incidental and uniformly applied. Unlike the ordinances in Lukumi, which targeted specific religious practices, the NMHRA does not selectively burden any religion. Therefore, it is classified as a law of general applicability.
The government is not required to demonstrate a compelling interest to impose burdens on individuals under its regulations, as long as there is a rational basis for protecting specific groups from discrimination in public accommodations. Consequently, the New Mexico Human Rights Act (NMHRA) does not infringe on the First Amendment's free exercise clause. Elane Photography contends that strict scrutiny should apply due to a hybrid-rights claim, which combines free exercise with another constitutional right. The Tenth Circuit allows this only if there is a credible showing of infringement on a companion constitutional right, requiring a likelihood of success on that additional claim. However, the hybrid-rights theory faces criticism and is not uniformly accepted across federal circuits. The Tenth Circuit has previously deemed this theory inapplicable in certain cases.
Elane Photography claims a valid hybrid-rights argument based on its free exercise, freedom of expression, and compelled speech claims, asserting a likelihood of success on these claims. Nevertheless, the district court, expressing doubts about the hybrid-rights theory, concluded that Elane Photography did not establish this claim. Without endorsing the hybrid-rights theory, the court opted to evaluate the claims based on the "colorability" standard. The district court found that Elane Photography failed to demonstrate this colorability, agreeing that both the freedom of expression and compelled-speech claims were not viable, thus upholding the summary judgment in favor of Willock.
Elane Photography's claims of freedom of expression and compelled speech lack a fair probability of success, thus disqualifying them from a heightened scrutiny analysis for their free exercise claim under the hybrid-rights theory. Even if a compelling state interest were necessary, the burden on Elane Photography's freedom of religion remains ambiguous. The company, organized as a limited liability entity in New Mexico, voluntarily engaged in public commerce, making it subject to general regulations, including those imposed by the New Mexico Human Rights Commission (NMHRC). The owners must accept regulations on their commercial conduct, even if these conflict with their personal religious beliefs.
Elane Photography contends that the NMHRA unjustly restricts their ability to operate their business due to their religious beliefs, and disputes the applicability of the Swanner v. Anchorage Equal Rights Commission case, which balanced religious convictions against anti-discrimination interests. In Swanner, a landlord's claim of religious discrimination was rejected because he failed to demonstrate that his beliefs necessitated his participation in property rental. The court clarified that voluntary commercial activity does not receive the same protections as direct religious activities.
Elane Photography argues that the New Mexico Constitution protects against discrimination based on religious opinions; however, compliance with the NMHRA requires them to adhere to laws prohibiting discrimination in commercial activities, which does not infringe on their right to express their religious beliefs. They are permitted to share their opinions but cannot discriminate against protected classes in their business operations.
The New Mexico Religious Freedom Restoration Act (NMRFRA) restricts government agencies from limiting an individual's free exercise of religion unless the restriction is generally applicable, non-discriminatory, and essential to achieving a compelling government interest using the least restrictive means. Elane Photography asserts that the NMRFRA applies beyond government agency disputes, while Willock contends it is limited to cases involving government agencies, as relief is restricted to injunctive or declaratory actions against such agencies and damages under the Tort Claims Act. The NMRFRA explicitly defines "government agency" to include various state entities, and its language indicates applicability solely to cases where a government agency imposes restrictions on religious exercise. Elane Photography's interpretation of the statute's allowance for claims or defenses against government agencies is deemed out of context. Citing case law, the document emphasizes that the NMRFRA was not intended for private party disputes. Although the Second Circuit in Hankins v. Lyght suggested that the federal Religious Freedom Restoration Act (USRFRA) could apply to private disputes, this view lacks supporting authority and is not followed in the NMRFRA context. Ultimately, the conclusion is that the NMRFRA is only pertinent in cases involving a government agency as an opposing party.
The court emphasized that it will not interpret statutory language beyond its written form, highlighting the importance of adhering to the text as it stands. It noted that the intent of the Legislature is discerned by reading the statute alongside related laws, confirming that the New Mexico Religious Freedom Restoration Act (NMRFRA) does not apply to private party litigation in this case. The court concluded that Elane Photography's refusal to photograph Willock's commitment ceremony constituted a violation of the New Mexico Human Rights Act (NMHRA). Furthermore, the New Mexico Human Rights Commission (NMHRC) and the district court were found not to have infringed upon Elane Photography’s constitutional rights related to freedom of speech, expression, or religion. Consequently, the district court's denial of Elane Photography's summary judgment motion and the grant of Willock's summary judgment motion were affirmed. The order was finalized by Judge Timothy L. Garcia, with concurrence from Judges Cynthia A. Fry and Wechsler.
