NM Sup. Court Upholds Discrimination Laws


The New Mexico Supreme Court upheld that state’s anti-discrimination laws, which protect against discrimination on the basis of sexual orientation (most states don’t), and ruled that a Christian business owner doesn’t have a free exercise right to refuse to do business with gay people. Cut the outrage and cries of tyranny.

The New Mexico Human Rights Act forbids businesses to discriminate by “refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person’s ability to acquire or rent and maintain particular real property or housing accommodation.”

Elane Photography refused to offer its services to a lesbian couple at their wedding, the couple filed a complaint and won and the photographer then filed a lawsuit seeking an exemption from the law on the basis of the New Mexico Religious Freedom Restoration Act and the state supreme court has now denied that exemption, making this rather obvious point:

A holding that the First Amendment mandates an exception to public accommodations laws for commercial photographers would license commercial photographers to freely discriminate against any protected class on the basis that the photographer was only exercising his or her right not to express a viewpoint with which he or she disagrees. Such a holding would undermine all of the protections provided by antidiscrimination laws.

Therein lies the problem. A business owner could just as easily refuse their services to an interracial couple, an inter-religious couple, a couple of another religion or no religion. And of course, the ruling they wanted would not be limited to photographers, it would set the precedent to allow any business to demand such an exemption. As the ruling pointed out, “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.”

All this talk of the business owner’s “sincerely held religious beliefs” is really quite irrelevant unless you also are demanding exemptions for every other form of discrimination as well. And that means gutting all laws against discrimination, which the court rightly refused to do. You can read the full ruling here.

Comments

  1. exdrone says

    Cut the outrage and cries of tyranny.

    Are you kidding? It’s “religious”, so that’s a free pass, and it’s “sincere”, so it’s not one of those fake left-wing whines. Cue the conservative reflex victim reaction.
    .
    Actually, since it would have been too easy for the photographer to fake a conflict, she seems to have wanted to make an issue of her refusal of service. Don’t push the point if you’re not prepared to live with the consequences.

  2. says

    The issue makes no sense.

    If a pastor wants to refuse carrying out a gay marriage, at least there’s a claim that it might violate his religion.

    If a photographer disagrees with gay marriage — so what? He is not being asked to carry out the ceremony. He is not required to personally accept the legitimacy of the marriage. He is only being asked to take photographs. If he believes that taking photographs is contrary to his religion, then he should get out of the photography business.

  3. Alverant says

    At all our jobs we occasionally have to do something we don’t want to do. Even people who are self employed and run their own business aren’t exempt from this rule. The NMSC was right in saying the “it’s against my religion” is not an excuse to avoid doing your job.

  4. tbp1 says

    I’m not completely unsympathetic to business owners who want to turn down certain customers (I can imagine myself in a position where I would at least be tempted to do so), but as Ed points out, the inherent problem is where to draw the line. Can just anyone disobey any law they disagree with on religious grounds? If not, who decides who gets to disobey which laws, and what are the criteria? That way likes anarchy and madness. I always bring this question up when this type of situation presents itself (another oft-cited example is the baker who refused to sell a wedding cake to a lesbian couple), and I have yet to get a coherent, consistent answer to that question. Usually it comes down to “people who agree with me” get to disobey the law, although it’s never put quite that bluntly.

  5. magistramarla says

    Has anyone been following the fight about a proposed anti-discrimination law here in San Antonio, Texas? The wingnuts are fighting against it because I’m betting that they fear that the same sort of thing will be happening here. We don’t have gay weddings here (but will in the future, I hope!), but there are wingnuts here who want local hotels and restaurants to be able to oust vacationing gay couples. Of course, they argue that “our children simply can’t be subjected to seeing such things!”
    Ed – check out the saga of one of our council members – Elisa Chan.

  6. D. C. Sessions says

    another oft-cited example is the baker who refused to sell a wedding cake to a lesbian couple

    Cooking is at least as much an expressive art as wedding photography. And on that basis, laws that require diners to serve objectionable (read: brown-skinned) people are on firm First Amendment grounds.

  7. says

    I wonder if they understand the kind of world they’d like to create. They want a world where they go to the grocery store and the atheist clerk says “I won’t ring you up because you’re a creo.” And then they go to the bank and the nice gentleman at the loan desk denies their loan because “you’re clearly of germanic ancestry and I don’t like Germans” and their supplier tells them that they don’t get any film or developer delivered to them because they’re white redneck crackers and the UPS driver doesn’t like delivering stuff to white redneck crackers. Yeah, it’d be a hell of a world they want to live in.

  8. brucecoppola says

    Yet another example of activist judges legislating from the bench by upholding a law passed by the legislature.

  9. badgersdaughter says

    Justice Bosson’s concluding paragraph in the concurrence deserves to be quoted on its own:

    …[T]he Huguenins have to channel their conduct, not their beliefs, so as to leave
    space for other Americans who believe something different. That compromise is part of the
    glue that holds us together as a nation, the tolerance that lubricates the varied moving parts
    of us as a people. That sense of respect we owe others, whether or not we believe as they
    do, illuminates this country, setting it apart from the discord that afflicts much of the rest of
    the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of
    citizenship.

  10. RickR says

    @10- Yeah, that was pretty great. What a breath of fresh air.

    Can we get a group together who will gather on the steps of the SCOTUS and read that paragraph out loud, over and over, 24/7?

  11. tomh says

    That’s just a warmup for the wingnuts in New Mexico, as two counties in New Mexico begin issuing same sex marriage licenses. In one, the County Clerk began issuing them, saying nothing in state law prohibits it. In the other a state judge ordered the clerk to issue a marriage licence to a same-sex couple who sued after their license application was denied. At least 45 licenses were issued the first day. Good for New Mexico.

  12. ragarth says

    Poor little photographer. Now she’s going to have to fake a scheduling conflict instead of telling the gays how much she hates them to their face, y’know, like they do interracial couples.

  13. says

    “Now she’s going to have to fake a scheduling conflict instead of telling the gays how much she hates them to their face…”

    Yeah, that could work out. Or not. The thing is that if I’m gay and I tell you that I want a day that you decide is booked, I can just have the OTHER husband call a few days later and book the same time. Somebody will be drinking a Big Gulp of Sad.

  14. khms says

    badgersdaughter:

    Justice Bosson’s concluding paragraph in the concurrence deserves to be quoted on its own:

    …[T]he Huguenins have to channel their conduct, not their beliefs, so as to leave
    space for other Americans who believe something different. That compromise is part of the
    glue that holds us together as a nation, the tolerance that lubricates the varied moving parts
    of us as a people. That sense of respect we owe others, whether or not we believe as they
    do, illuminates this country, setting it apart from the discord that afflicts much of the rest of
    the world
    . In short, I would say to the Huguenins, with the utmost respect: it is the price of
    citizenship.

    D. C. Sessions:

    @10:

    Damn! I ,i>like that judge.

    I’m not a big fan of American Exceptionalism myself – and that certainly sounds like some.

  15. eric says

    This is exactly the sort of precedent that can be used to make celebrants sign off on a gay marriage (i.e., force a priest to marry a gay couple). In states where a celebrant is needed to make a marriage legal, and a celebrant charges for it, they are in essense operating a business that provides a service to the public. They should not be able to discriminate against any citizen who wants to purchace that service.

    Having said that, two caveats spring to mind. First, this doesn’t mean a church is obligated to host said wedding – it just means that in in his/her role as a civil official, the priest is required to take that $20 fee (or whatever) and sign the marriage certificate when the couple is gay, not just when they are straight. Though a church could be in the same boat as the priest if they rent their facilities out for public use (i.e., weddings outsidet the sect). Second, this could be a point of law that brings conservative religious folk together with liberals to overturn the laws that say celebrants are legally required at all. I suspect that if they are forced to choose between “legal civil role, no discrimination allowed” and “no legal civil role,” most conservative religious folk will (like liberals) choose the latter.

  16. skinnercitycyclist says

    Eric, my ex-brother-in-law just got married over the weekend, he had my ex-wife’s current husband, a Seattle firefighter, perform the ceremony here in Oregon. All he had to do was fill out a few forms. That would seem to settle THAT problem. Oh, he did not do it for money, either.

    OTOH, in states where they restrict who can perform a ceremony, yes, I think if they, in practical terms, restrict hte qualifications so you have to be a minister of some kind, I would say 1) tha itself violates the principle of “no religious test,” as such a “celebrant” (your Catholicism showing, eric?) would be acting as an agent of the state and 2) if it doesn’t, then there is a case to be made for requiring ministers to celebrate weddings.

  17. ragarth says

    @16, Democommie

    The point, and I guess I wasn’t very clear on this (Too early in the morning! D: coffeenomnom) is that she’s not arguing for the right to refuse to serve a certain class of person since it’s relatively easy to not do so, she’s arguing for the right to look a gay person in the eye, smile self righteously, and say ‘We don’t serve your kind here.” In other words, she wants the government to approve her verbally spitting in the face of those people she dislikes.

  18. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    @eric –

    You know nothing about constitutional law in the US. Churches and clerics are not providing “public accommodations”. This violates the law in exactly the same way as if the photographer refused to photograph Navaho, and it would not violate the law for a Catholic church to refuse to marry queer folk in exactly the same way it would not violate the law if a fundamentalist Mormon church refused to marry Navaho.

    This does nothing to support the case that churches would be forced to marry persons who do not participate in that church.

  19. zmidponk says

    @Ray Ingles, I could understand that point if it was simply a photographic artist who decided against taking a photo of the happy couple in the wedding they happened to be passing because they disagreed with same-sex marriage, but, somehow, found themselves being compelled to do so against their wishes. However, in this situation, it’s someone offering a service where they use their skill in photography to record important events on behalf of someone else. It may be ‘compelled speech’ – but that’s precisely the service they offer, being compelled to record the event in question in exchange for being paid for their time, effort and skill.

Leave a Reply