Photographer's right to refuse to photograph a commitment ceremony?

[Vance R. Koven]

The New Mexico RFRA's substantive section says:

§ 28-22-3.  Religious freedom protected; exceptions

   A government agency shall not restrict a person's free exercise of
religion unless:

   A. the restriction is in the form of a rule of general applicability and
does not directly discriminate against religion or among religions; and

   B. the application of the restriction to the person is essential to
further a compelling governmental interest and is the least restrictive
means of furthering that compelling governmental interest.

where "free exercise of religion" is defined as "an act or a refusal to act
that is substantially motivated by religious belief."

I take it that the photographer would not have difficulty meeting the
definition of free exercise; the issues then becomes whether the
anti-discrimination law is a rule of general applicability (surely it is)
that does not *directly* discriminate against or among religions, or whether
there is a compelling interest. I think at this point I have mastered the
obvious.

The statute was enacted in 2000, and so far there don't seem to have been
any cases under it, at least none that Lexis reveals. Based on my perhaps
somewhat cynical view that state courts will wherever possible want to
vindicate a state statute as opposed to an individual right, and will bend
heaven and earth to do so when the right is being asserted by someone not on
the official list of protected human subspecies, I will predict that if the
matter comes to trial and appeal, New Mexico courts would rule in favor of
the anti-discrimination law.

The way the act is drafted, I don't see what the second clause of A adds to
the first clause, since a law of general applicability, so far as I
understand the principle, cannot by its nature target religion or a specific
religion. The soft underbelly of the analysis thus remains the compelling
interest test, and there is no escaping the result-driven nature of that
test. If you focus on the remedial purpose of the anti-discrimination law,
and its clientèle, you conclude that there is a compelling interest. If you
focus on the remedial purpose of RFRA and *its* clientèle, then maybe not.
When you regard the proper sphere of RFRA as protecting the interests of
religious persons against direct state interference in their practice that
does not affect any side-group, then the religious person wins; when the
client base of RFRA seeks to advance an interest apparently against the
client base of anti-discrimination laws, the latter wins. This, as I said,
is not a *rule* of decision, but it seems to be a predictor of decision.

Vance

On Jan 29, 2008 1:26 PM, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:

>        The ADF reports that the New Mexico Human Rights Bureau is
> holding a hearing on a complaint against a husband-and-wife photography
> business which who refused to photograph a same-sex commitment ceremony.
> http://www.alliancedefensefund.org/news/story.aspx?cid=4369
>
>        I take it that the complaint is brought under N.M. Stats. sec.
> 28-1-7(F), which bars "any person in any public accommodation [from
> making] a distinction, directly or indirectly, in offering or refusing
> to offer its services, facilities, accommodations or goods to any person
> because of race, religion, color, national origin, ancestry, sex, sexual
> orientation, ...."  Sec. 28-1-2(H) defines "public accommodation" quite
> broadly, 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."
>
>        Say that the owners of Elane Photography -- specifically Elaine
> Huguenin herself, who seems to be the principal photographer
> (http://www.elanephotography.com/; warning: annoying soundtrack) -- have
> a sincere religious objection to participating in what they see as a
> sinful occasion.  May they claim an exemption under the New Mexico RFRA?
>
>        Eugene
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-- 
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com
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