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

Tue Jan 29 12:46:31 PST 2008

  Vance may be right as a prediction of what many judges will do. 
But it doesn't make much sense as an interpretation of compelling
interest.  Especially if this photographer turns out to be in
Albuquerque or Santa Fe, there are surely plenty of other
photographers available.  A claimed right to force another to perform
personal services, when comparable services are readily available in
the market, to vindicate -- what?  Not an interest in having the
ceremony photographed, but at best an interest in not being
discriminated against in the abstract, or in not having one's
feelings hurts, and in fact probably an interest precisely in forcing
a set of values on the photographer for the purpose of scoring a
political point.  None of that matches up well against an interest in
not violating what the photographer understands to be a duty to God. 
A judge who rules otherwise is refusing to take RFRA seriously.

  If she's out in the middle of the desert and the nearest substitute
photographer is 100 miles away, maybe it's different.  If it's housing
or a job and if those things are scarce, it is more likely to be
different.  But a right to have my ceremony photographed by an
objecting photographer instead of a cheerfully consenting
photographer is not a compelling interest.

  Quoting "Vance R. Koven" <vrkoven at gmail.com>:

> 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[1]
>>
>>         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/[2]; 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
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
------
[1] 
/horde/services/go.php?url=http%3A%2F%2Fwww.alliancedefensefund.org%2Fnews%2Fstory.aspx%3Fcid%3D4369
[2] /horde/services/go.php?url=http%3A%2F%2Fwww.elanephotography.com%2F
[3] 
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