On April 7, 2014, the U.S. Supreme Court declined the writ of certiorari filed by photographer Elaine Huguenin who was appealing a New Mexico Supreme Court decision which found she had violated state law by refusing, on religious grounds, to photograph a 2006 same-sex commitment ceremony.
After the Court declined a hearing on the case, same-sex marriage advocates partied and conservative Christian groups complained about the “activist liberal Court.”
For the following reasons, I believe that these responses are premature because the Court’s decision in this particular case makes sense even though the issue is hardly settled.
In 2008, the New Mexico Human Rights Commission (NMHRC) ruled that Huguenin had engaged in illegal discrimination based on sexual orientation in violation of New Mexico Human Rights Act, Section 28-1-7(F) and ordered her to pay $6,600 in attorney fees. (See “Vanessa Willock v. Elane Photography” Decision and Final Order, Human Rights Commission of the State of New Mexico. ) The case was filed on behalf of Huguenin’s photography business, Elane Photography, and her attorneys argued throughout the trial process that she had in fact not discriminated based on sexual orientation, as Huguenin would have photographed gay individuals, but that her Christian beliefs prohibited her from doing so in a way which would endorse same-sex marriage.
The case never went to trial, but instead the fine was upheld on summary judgment as there was no issue of fact – the parties stipulated that Huguenin had refused to provide photographic services in a manner consistent with her sincerely held religious beliefs. The matter reached the New Mexico Supreme Court which upheld the Human Rights Commission’s decision. (See “Elane Photography v. Vanessa Willock” decision, August 22, 2013).
As part of the decision, New Mexico Supreme Court Judge Richard Bosson issued a concurring opinion that famously stated that Huguenin should have been willing to compromise her conduct even if it conflicted with her beliefs. Bosson wrote, “In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the 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.” Up to that point, the primary issue had been where to draw the line when there is a conflict between state nondiscrimination policies and individual religious freedom. See ReligiousLiberty.TV, “The Price of Citizenship’? New Mexico Supreme Court rules Christian must photograph same-sex ceremony” (August 23, 2013).
Huguenin immediately appealed the decision to the U.S. Supreme Court . (See Petition for Certiorari filed November 8, 2013 ). But where the previous appeals had involved two major components, including free exercise of religion and freedom from compelled speech, Huguenin’s attorneys decided to drop the religious freedom argument and focus solely on a free speech argument, asking the Supreme Court to address the following specific question:
“Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.”
This is an important question, to be sure, and it was likely limited in this manner for strategic reasons. But the issue as Huguenin’s attorneys presented it was probably too narrow to address the larger societal questions that are circulating regarding the wedding business in the age of same-sex marriage. As Huguenin’s attorneys pointed out, there is a great deal of creative speech involved in photographic composition and photo selection. But if the Supreme Court were to address the case, it might either have to shoehorn a free exercise argument into the case or, in the alternative, simply address it as a free speech claim which would not have addressed similar fact scenarios involving wedding-related businesses that do not engage in “creative free speech” including caterers, wedding coordination services, etc.
With a number of these cases making their way through the legal system, the Supreme Court may have had to address similar issues multiple times. Further, as the case had been filed under the name of Huguenin’s company, Elane Photography, there may have been some overlap with the recently-heard cases of Hobby Lobby and Conestoga Wood in which the Court is likely to decide whether or not businesses, like individuals, have free exercise rights.
Although the U.S. Supreme Court did not provide a reason for declining Huguenin’s writ, it is probably not because the Court intends to lock in the New Mexico decision or that the Supreme Court is not interested in addressing this issue at a later date. It is most likely because the Court is looking for a better case, perhaps a combination of several cases which represent different results in different jurisdictions.
As the old adage goes, bad facts make bad law — something that the Court knows well.