A while back, I blogged about the pending New Mexico case in which a wedding photographer who refused to photograph a gay commitment ceremony was sued for violating the state's antidiscrimination laws.  The case presented the question whether the application of antidiscrimination laws prohibiting discrimination on the basis of (among other things) sexual orientation to a photographer who is morally opposed to same-sex marriage violates the photographer's First Amendment rights.  

The New Mexico Supreme Court today issued its decision, holding that the First Amendment does not prevent a state from enforcing antidiscrimination norms against businesses that hold themselves out as open to the general public, even when those businesses offer services (like photography) that are artistic or expressive in nature.  Although I might have written the opinion a little differently, I think it reaches the correct result.  More details after the jump.

The photographer's most interesting argument was that her business is intrinsically expressive and that, as a consequence, requiring her to photograph same-sex couples amounts to government-compelled speech.  The court rejected this argument -- correctly, I think -- by observing that the enforcement of antidiscrimination laws neither forbids the photographer from speaking nor requires her to send any particular message.  The owner remains free to express her opposition to same-sex marriage or homosexuality in general.  

The photographer argued that third parties might think that, by photographing a same-sex commitment ceremony, the photographer was endorsing homosexual relationships.  But, as the court suggested (though I wish it would have been more explicit on this point) , this argument has a self-fulfilling quality.  If the law allows an owner to discriminate, observers are more likely to think that service constittutes endorsement.  (Even then, the court correctly observed that "[i]t is well known to the public that wedding photographers are hired by paying customers and that a photographer may not share teh happy couple's views on issues ranging from the minor . . . to the decidely major.") The possibility that observers will misunderstand service on equal terms for endorsement is diminished, however, when the law compels equal service.  That is, the existence of antidiscrimination law prevents the risk of the very consfusion the photographer was worried about.  As I said in my earlier post, one of the purposes of antidiscrimination laws is precisely to ratchet down the expressive significance of these kinds of commercial interactions.  Doing so both protects minority groups from, in the court's words "humiliation and dignitary harm," and protects the expressive freedom of those providing the service by emptying the service of expressive content.

The case leaves some interesting questions unanswered about the intersection between free speech and antidiscrimination norms.  For example, although the court said that the photographer remains free under the New Mexico antidiscrimination laws to express her opposition to same sex relationships, it seems likely that expressing those views in certain ways would amount to a denial of service on equal terms.  If, for example, she showed up at the commitment ceremony wearing a t-shirt that said "God Hates Fags," I think that would be the same as refusing to provide the service in the first place.  Or is she hung a sign with the same message on her door,  I think the same reasoning would apply, even if accompanied by a sign indicating that the shop complies with state antidiscrimination laws.  Whether the First Amendment protects either of these hypotheticals is an issue the court in the case did not get into.

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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