Highlights from the New Mexico Ruling





{58} Elane Photography argues that enforcement of the NMHRA against it for refusing

to photograph Willock’s wedding violates its First Amendment right to freely exercise its

religion. See U.S. Const. amend. I (Congress shall make no law prohibiting the free exercise

of religion).

{59} It is an open question whether Elane Photography, which is a limited liability

company rather than a natural person, has First Amendment free exercise rights. Several

federal courts have recently addressed this question with differing outcomes. Compare, e.g.,

Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs., slip

op. at 11, ___ F.3d ___, ___ (3d Cir. July 26, 2013, No. 13-1144) (“[W]e conclude that

for-profit, secular corporations cannot engage in religious exercise . . . .”), with Grote v.

Sebelius, 708 F.3d 850, 854 (7th Cir. 2013) (“[T]he [plaintiffs’] use of the corporate form

is not dispositive of the [free exercise] claim.”). However, it is not necessary for this Court

to address whether Elane Photography has a constitutionally protected right to exercise its

religion. Assuming that Elane Photography has such rights, they are not offended by

enforcement of the NMHRA.

{60} Under established law, “the right of free exercise does not relieve an individual of

the obligation to comply with a valid and neutral law of general applicability on the ground

that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”

Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (internal

quotation marks and citation omitted).3

In order to state a valid First Amendment free

exercise claim, a party must show either (a) that the law in question is not a “neutral law of

general applicability,” id. (internal quotation marks and citation omitted) or (b) that the

challenge implicates both the Free Exercise Clause and an independent constitutional

protection, id. at 881, or possibly (c) that the law operates “in a context that len[ds] itself to

individualized government assessment of the reasons for the relevant conduct.” Id. at 884.

Elane Photography does not claim that the individualized assessment situation is applicable

to the present case. We address its claims under the other two categories below.


1. The NMHRA is a neutral law of general applicability

{61} The United States Supreme Court elaborated on the rule concerning “law that is

neutral and of general applicability” in Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 531, 546 (1993). A law is not neutral “if [its] object . . . is to infringe

upon or restrict practices because of their religious motivation.” Id. at 533. It is not

generally applicable if it “impose[s] burdens only on conduct motivated by religious belief”

while permitting exceptions for secular conduct or for favored religions. Id. at 543. These

inquiries are related, id. at 531; the Court observed that improper intent could be inferred if

the law was a “‘religious gerrymander’” that burdened religion but exempted similar secular

activity. Id. at 534-35. If a law is neither neutral nor generally applicable, it “must be

justified by a compelling governmental interest and must be narrowly tailored to

advance that interest.” Id. at 531-32; see also id. at 546 (“The compelling interest standard

that we apply once a law fails to meet the Smith requirements is not water[ed]