- A People-Powered Free Press And A Bill of Rights Initiative

Opinion Number:______________
Filing Date: August 22, 2013
Docket No. 33,687
Alan M. Malott, District Judge
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Emil John Kiehne
Albuquerque, NM
Becht Law Office
Paul F. Becht
Albuquerque, NM
Alliance Defending Freedom
Jordan W. Lorence
Washington, D.C.
Alliance Defending Freedom
James A. Campbell
Scottsdale, AZ
for Petitioner
Lopez, Sakura & Boyd, L.L.P.
Julie Sakura
Santa Fe, NM
Sarah Steadman2
Santa Fe, NM
Tobias Barrington Wolff
Philadelphia, PA
for Respondent
Doughty & West, P.A.
Robert M. Doughty, III
William Wayne Wirkus
Albuquerque, NM
Asma Uddin
Diana Verm
Washington, D.C.
Douglas Laycock
Charlottesville, VA
for Amicus Curiae The Becket Fund for Religious Liberty
Law Office of Michael J. Thomas, L.L.C.
Michael J. Thomas
Las Cruces, NM
Eugene Volokh
Los Angeles, CA
for Amicus Curiae The Cato Institute
Evie M. Jilek
Albuquerque, NM
for Amici Curiae Wedding Photographers
Natalie A. Bruce
Albuquerque, NM
Steven H. Shiffrin
Ithaca, NY
for Amici Curiae Steven H. Shiffrin and Michael C. Dorf3
Sutin, Thayer & Browne, P.C.
Kerry C. Kiernan
Lynn E. Mostoller
Albuquerque, NM
for Amicus Curiae New Mexico Small Businesses
ACLU of New Mexico
Laura Louise Schauer Ives
Albuquerque, NM
LGBT & AIDS Project, ACLU Foundation
Joshua A. Block
New York, NY
for Amici Curiae American Civil Liberties Union Foundation and American Civil
Liberties Union of New Mexico
CHÁVEZ, Justice.
{1} By enacting the New Mexico Human Rights Act (NMHRA), NMSA 1978, §§ 28-1-1
to -13 (1969, as amended through 2007), the Legislature has made the policy decision to
prohibit public accommodations from discriminating against people based on their sexual
orientation. Elane Photography, which does not contest its public accommodation status
under the NMHRA, offers wedding photography services to the general public and posts its
photographs on a password-protected website for its customers. In this case, Elane
Photography refused to photograph a commitment ceremony between two women. The
questions presented are (1) whether Elane Photography violated the NMHRA when it
refused to photograph the commitment ceremony, and if so, (2) whether this application of
the NMHRA violates either the Free Speech or the Free Exercise Clause of the First
Amendment to the United States Constitution, or (3) whether this application violates the
New Mexico Religious Freedom Restoration Act (NMRFRA), NMSA 1978, §§ 28-22-1 to
-5 (2000).
{2} First, we conclude that a commercial photography business that offers its services
to the public, thereby increasing its visibility to potential clients, is subject to the
antidiscrimination provisions of the NMHRA and must serve same-sex couples on the same
basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to
photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as
if it had refused to photograph a wedding between people of different races.
{3} Second, we conclude that the NMHRA does not violate free speech guarantees1
Willock referred to the event as a “commitment ceremony” in her e-mail to Elane
Photography. However, the parties agree that the ceremony was essentially a
wedding—Elane Photography emphasizes that there were vows, rings, a minister, flower
girls, and a wedding dress, and Willock uses the word “wedding” to describe the ceremony
in her brief. We use the terms “wedding” and “commitment ceremony” interchangeably.
because the NMHRA does not compel Elane Photography to either speak a governmentmandated message or to publish the speech of another. The purpose of the NMHRA is to
ensure that businesses offering services to the general public do not discriminate against
protected classes of people, and the United States Supreme Court has made it clear that the
First Amendment permits such regulation by states. Businesses that choose to be public
accommodations must comply with the NMHRA, although such businesses retain their First
Amendment rights to express their religious or political beliefs. They may, for example, post
a disclaimer on their website or in their studio advertising that they oppose same-sex
marriage but that they comply with applicable antidiscrimination laws. We also hold that
the NMHRA is a neutral law of general applicability, and as such, it does not violate the Free
Exercise Clause of the First Amendment.
{4} Finally, we hold that the NMRFRA is inapplicable in this case because the
government is not a party. For these reasons, we affirm the judgment of the Court of
{5} The NMHRA prohibits, among other things, discriminatory practices against certain
defined classes of people. See § 28-1-7. In 2003, the NMHRA was amended to add “sexual
orientation” as a class of persons protected from discriminatory treatment. 2003 N.M. Laws,
ch. 383, § 2. “Sexual orientation” is defined in the NMHRA as “heterosexuality,
homosexuality or bisexuality, whether actual or perceived.” Section 28-1-2(P). In this case,
we are concerned with discrimination by a public accommodation against a person because
of that person’s real or perceived homosexuality—that person’s propensity to experience
feelings of attraction and romantic love for other members of the same sex.
{6} “Public accommodation” is defined in the NMHRA as “any establishment that
provides or offers its services, facilities, accommodations or goods to the public, but does
not include a bona fide private club or other place or establishment that is by its nature and
use distinctly private.” Section 28-1-2(H). Thus, a business that elects not to offer its goods
or services to the public is not subject to the NMHRA.
{7} Vanessa Willock contacted Elane Photography, LLC, by e-mail to inquire about
Elane Photography’s services and to determine whether it would be available to photograph
her commitment ceremony1
to another woman. Elane Photography’s co-owner and lead
photographer, Elaine Huguenin, is personally opposed to same-sex marriage and will not