Art must remain private – otherwise an artist is just a public accommodation [Darleen Click]
Which is what the New Mexico Court of Appeals is declaring in their ruling against Elane Photography.
So the New Mexico Court of Appeals held last week in the long-pending Elane Photography v. Willock (N.M. Ct. App. May 31, 2012). The court began by holding that the state law that bans sexual orientation discrimination in places of public accommodation applies to professional wedding photographers’ decisions not to photograph same-sex commitment ceremonies: Such photography businesses are “places of public accommodation” under the language of the law, and the discrimination between legally recognized opposite-sex marriages (New Mexico only recognizes such marriages) and same-sex commitment ceremonies constitutes discrimination based on sexual orientation.
The court then rejected the argument of the photographer (Elane Huguenin, the co-owner and principal photographer for Elane Photography) that penalizing her for not photographing such same-sex ceremonies was an unconstitutional “speech compulsion.” The First Amendment, Huguenin argued, has been repeatedly held to protect the right to speak as well as the right not to speak; and the right not to speak includes the right not to create artistic expression that one doesn’t want to create. And just as the First Amendment protects speech that is said for money (indeed, most books, newspapers, movies, and the like are created and distributed commercially), so it protects the right not to create certain artistic works for money, even if one is in that line of business. But the court disagreed. [...]
It seems to me that the right to be free from compelled speech includes the right not to create First-Amendment-protected expression — photographs, paintings, songs, press releases, or what have you — that you disagree with, even if no-one would perceive you as endorsing that expression.
The comment section, including those in Eugene Volokh’s followup post seem to be fixated on two things (1) there is no “art” in photography – it is merely a mechanical service like providing a hotel room or serving a meal in a restaurant and (2) sexual orientation is a “protected class” – so one can refuse to take on as clients for any number of reasons but not gay people.
To the first point, obviously these judges have no understanding of photography.
To the second, I’m not a lawyer and this case is going to be kicked up the chain by the ADF, but this is, as far as I know, not really about the lesbians involved — the photographer is declining to participate in an activity with which she disagrees. I suspect that if someone attempted to hire her to photograph a polyamorous-commitment ceremony, she would refuse to do that too. The photographer wasn’t discriminating on the basis of what these women are but what they were doing.
It’s not a complete analogy, but when a doctor or nurse refuses to participate in the activity of abortion, they are not discriminating against the women (illegal sex discrmination) – and there is no indication they are refusing her other care – but refusing to participate in a specific activity.
Under this ruling, could an advertising company refuse to create an ad campaign for, say, the KKK? Fred Phelps? CAIR? e.g. if you don’t want to create a book, website, ad campaign, drawing, painting, for all comers to your business, then don’t be in [that] business.
Tags: constitution, first amendment, public accomodation, willock v elane photography