At the end of last year, Shannon Minter ’93 approached his former Constitutional Law professor Steven Shiffrin about writing an amicus brief on an important civil rights case out of New Mexico. Minter, the Legal Director of the National Center for Lesbian Rights (NCLR), recruited attorneys and coordinated briefs in the case. There were a number of issues at bay, and Shiffrin agreed to tackle the free speech angle, recruiting fellow professor Michael Dorf to join him.
The case was Elane Photography v. Vanessa Willock, which centered around discrimination against a same sex couple stemming from a refusal to photograph a commitment ceremony. On August 22 the New Mexico Supreme Court ruled in favor of the plaintiffs, ruling that their rights were violated.
“It’s an important victory for equality,” says Shiffrin, the Charles Frank Reavis Sr. Professor of Law, who added that he believes this case will be appealed. “It sets an important precedent for other states to follow. It may be persuasive for a number of courts across the country. That’s why it will be appealed. There’s some chance that the Supreme Court may take it, but no one gets rich guessing which cases the Court will take.”
The case centered around the plaintiff’s refusal to photograph a same sex commitment ceremony. In 2006, Vanessa Willock sent an e-mail to Elane Photography, LLC to ask its co-owner, Elaine Huguenin, if she would photograph her commitment ceremony. In response, Huguenin replied that she would not photograph the ceremony because she only worked “traditional weddings” and the ceremony was against her religious beliefs.
Willock filed a complaint with the New Mexico Human Rights Commission for violating her rights pursuant to the NMHRA (New Mexico Human Rights Act). The Commission found for Willock, and Elane appealed the decision. Ultimately, the state’s Supreme Court granted certiorari to the case. Elane claimed that the decision should be overturned, offering two main arguments: first, that opposition to same-sex marriage did not amount to discrimination based on sexual orientation; and second, that even if it did, the First Amendment protects photographers from what Elane claimed was compelled speech.
In their brief, Professors Shiffrin and Dorf focused on the compelled speech issue. They argued that the application of the NMHRA to Elane Photography was in fact constitutional. To support their conclusion, the professors denied that photographing a same-sex ceremony necessarily conveys any particular view about the morality of the ceremony. As they wrote, the photographer isn’t expressing sentiments, but trying “merely to capture the speech of others (which also partly explains why the photographer may differ from the essayist or the singer.)”
Though this may not be the last of the case, it does mark a continuing trend in the fight for equality.
“The decision of the New Mexico Supreme Court shows that the inclusion of sexual orientation in anti-discrimination law has become well accepted,” says Dorf, the Robert S. Stevens Professor of Law. “Virtually no one would argue in 2013 that a wedding photographer should have a free speech right to discriminate on the basis of race or sex. It is gratifying to see sexual orientation being treated in the same way. But if this case had gone the other way, you would see a flood of cases seeking exemptions from anti-discrimination laws.”