Photographic License to Discriminate?

The loosening of restrictions on same-sex marriage over the last decade has been accompanied by the refusal of persons opposed to such unions to participate in them in any way. Naturally, the law requires no one to show up and cheer at a same-sex wedding or commitment ceremony, but what if a county clerk did not want to issue marriage licenses to same-sex couples or a health care worker refused to perform the necessary blood tests? Obviously, some objections to marriage will intrude on a couple’s ability to marry more than others.


The key to understanding which objections are legal and which are not does not only lie in guarantees of religious freedom. Everyone is free to harbor religious or philosophical opposition to same-gender couples and to shout that message from the rooftops, as long as they do not create a nuisance in doing so. It is in jurisdictions that have enacted prohibitions on sexual orientation discrimination in public accommodations where those who peddle their wares in the public marketplace are not allowed to reject customers for being gay. In such jurisdictions, religious opponents to same-sex unions have every right to voice their objections in church and to teach their children that it is wrong to be gay. If these opponents open up shop in the local marketplace, however, they are required to leave their biases at home.

New Mexico has such a law. Elaine Huguenin is a talented photographer who makes a good living recording important moments in the lives of the people of Albuquerque. In 2006 she decided to refuse the request of a lesbian couple that she be the photographer at their commitment ceremony. When sued, Huguenin, obviously aware that her religious freedom argument would have no traction under decades-old Supreme Court precedent, came up with the novel argument that if she were required to photograph the ceremony, she would be forced to celebrate it and to express that she is accepting of same-sex marriage. This is a story that Huguenin did not want to tell.

Huguenin’s argument sounds as if it was lifted from the Supreme Court’s Boy Scouts of America v. Dale decision. But since her “expressive policy” is merely to make money with her camera, she gave the argument a twist. She insisted that artists, since they create protected speech, must be free to choose what customers they will serve and will not.

While I have no reason to doubt that Huguenin is an artist of the highest caliber with a special flair for photographic storytelling, I fail to see how her status elevates her above someone who merely hires herself out to record an event. I am certain there have been many occasions when the contract between Huguenin and her customers has constrained her to adhere to provisions about how and when, to what degree and in what format they want their stories told. But the question here is not whether Huguenin can refuse to sign a contract whose provisions offend her artistic sensibilities. The question is whether she can refuse her services because the customers are gay. In Huguenin’s case, at least, an argument for carving out an exception in the law for artists is not likely to carry the day.

Furthermore, the law in this case simply does not force Huguenin to make art in a way not of her choosing or to utter a statement that is against her religion. First, it is a given that Huguenin will tell the story of an event in her own way. She is, after all, the one behind the camera. Second, as someone hired to take pictures at the event, she participates primarily as an observer who has some interaction with the major players when she stages certain photographs. More important than the fact that she is not truly there to celebrate is the fact that her hired presence in no way implies an expression that she believes in the goodness of the proceedings.

If Huguenin wants to turn a profit in the economic environment the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.

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21 Responses

  1. Joe says:

    One red flag for me is that there are many businesses with some degree of expressive component. The line-drawing here seems to be artificial, even w/o the compelling interest against discrimination and the public accommodation differences and specifically the incorporation.

    Still, I think sex discrimination is also shown in cases of this nature, so there is a bigger issue on that level. Luckily for them, however, this is something of a minority viewpoint.

  2. Brett Bellmore says:

    “I fail to see how this status elevates her above someone who merely hires herself out to record an event.”

    I agree, the claim of an “expressive” component to her work is a complete irrelevancy: Artists, or ditch diggers, NOBODY should be compelled against their will to labor for another.

    In fact, I thought we settled that with the 13th amendment…

  3. Joe says:

    No, public accommodation laws that require “all comers” were not overridden by the 13A. See, e.g., the Heart of Atlanta Hotel case. They are not required to have businesses in public accommodations. Actual slaves, on the other hand, could not choose to be ditch-diggers etc.

  4. Brett Bellmore says:

    Oh, I just love that reply: “You didn’t have to be a photographer, ditch digger, doctor, roofer… (You could have remained unemployed!) But if you’re going to be ANY of them, you’re not going to have any choice of who you work for!”

    No, I would say public accommodation laws are a classic case of Nietchze’s aphorism, “He who hunts dragons must beware, lest he become a dragon himself.” It looks ok to you to force somebody to labor for somebody else because you HAVE become that dragon. You’re comfortable with depriving people of their freedom in a cause that started out protesting depriving people of their freedom.

  5. Shag from Brookline says:

    Brett seems to believe the 13A was enacted to free anarcho-libertarians.

  6. Brett Bellmore says:

    I seem to believe it was enacted to prohibit involuntary labor.

  7. Shag from Brookline says:

    ” Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

    Section 2. Congress shall have power to enforce this article by appropriate legislation”

    Brett’s simpletonian and ahistorical approach recognizes no difference between “involuntary servitude” spelled out in Section 1 and his “involuntary labor.” Perhaps Brett is of the view that the military draft violated the 13A. (He probably is as a self-professed anarcho-libertarian). So perhaps Brett might check out the history of involuntary servitude that led to its inclusion in the 13A. And Brett should keep in mind the addition of the 14A with its additional protections for former slaves.

  8. Joe says:

    Brett said he thought the “13A” stopped something and as I noted that is not how it was understood by general legal opinion & I cited the Heart of Atlanta Hotel case, which provides some further background.

    “Involuntary labor” also doesn’t include jury duty, militia duty, children going to school and a few other things. But, there you have to actually labor. People have to go to jury duty. People aren’t forced to sell things in public accommodations. But, if they do, there are rules they have to follow. Areas without slavery and involuntary servitude before and after 1865 had those rules.

    I understand he opposes such rules. But as to what the 13A means, his position has never won the day.

  9. Joe says:

    ETA: As Shag notes, the text is “servitude,” not “labor,” but I’ll go with the gloss. If there is such a rule, you still can be required to do those things. It does not violate the 13A.

  10. Jimbino says:

    The solution for such and artist is to turn herself into a church or work under the aegis of a religious institution. Are moils required to circumcise gentiles? Are priests required to bless the new cars of atheists?

    No, and in our system it is the atheists and humanists who get screwed, the idea being that they have no ethics or scruples, so why should they not be required to fix crucifixes and provide kosher and halal meals to the superstitious?

  11. Brett Bellmore says:

    Yup, the solution is, do as the government says, or get yourself to a nunnery. “For so long as we deign to permit nunneries to exist.” goes, for now, unstated.

    Look, do you not understand what was going on here? We’re not dealing with a pair of unfortunates who couldn’t find somebody to take the pictures. The same sex couple did not lack for photographers willing to do the work. They went out of their way to find a photographer unwilling to do the work.

    Perhaps for the added frisson of knowing the event was being imortalized by somebody who hated every second of what they were being forced to do. More likely just because they could take the photographer to the cleaners, and pocket the money.

    Either way, they’re not put upon minorities being defended by the state against the big bad racist. They’re the empowered minorities, empowered by the state, reveling in the opportunity to crush somebody who dares to disapprove of what they’re doing.

    They’re the agressors, not the victims.

  12. Shag from Brookline says:

    Since Brett’s 13A rights argument seems to have withered, I imagine Brett as an adman coming up with this copy for the photography firm under 1A speech (commercial) rights:



    Brett may add or detract as he pleases.

  13. Adam says:

    I think that perhaps the crux of your argument is here: “Second, as someone hired to take pictures at the event, her level of participation is little more than that of an observer.”

    As a photographer, that’s not true at all. As someone who’s considered doing wedding photography, it’s definitely untrue. And if it were true, it would likely be a basis for a second suit, for negligence.

    First, as a photographer, there’s a need to select what Cartier-Bresson called the decisive moment, and then a set of decisions (lens, flash, aperture, shutter speed, composition, zoom level, etc) which go into each photograph. Those decisions (and many more like it) are what distinguish a good photo from a random snapshot or selfie.

    As a wedding photographer, she would be expected to direct: we need the bride’s family now; you, move closer in, let’s add a reflector to remove shadows, now everyone look over there, now everyone look at the bride. Now let’s get the ring in good, soft reflected light while I switch lenses for a closeup. This is an active and participatory role. After the wedding, there’s weeks of work in cropping, straightening, color correction, blemish removal, and other aspects of production for delivery. Each aspect of that involves being far more than an observer.

    Lastly, if the photographer simply showed up with a single fixed lens, never changed the camera from automatic (assuming that her cameras have an automatic mode, the higher end ones do not), never directed anyone where to stand, and just printed the photostream raw into a book, the happy couple is likely to be distinctly unhappy. They have already shown themselves willing to sue, and so a second suit would be likely, one where the photographer’s ‘acting as an observer’ is a failure to live up to the contract.

    I’m not a lawyer, so I’m unable to comment on the legal ramifications of this. But it strikes me that your analysis is dependent on a mis-understanding of what is being asked of the defendant. As a thought experiment, what if the defendant were a lawyer — would it be possible to compel them to take this client? A photographer is obviously less trained than a lawyer, but has far more discretion and professional judgement than someone ‘just showing up.’

  14. Paul Horwitz says:

    This last question came up in my discussion of the case in Law and Religion yesterday. Lawyers, however, are not ethically obligated to take on all clients. So a possible distinction is that the discretion to refuse clients is a built-in assumption of the relationship between lawyers and prospective clients, whereas the wedding photographer holds herself out as taking on any client who walks in the door. I find the distinction somewhat persuasive in and of itself, although I don’t believe it’s legally dispositive of Elane Photography’s claims.

  15. Joe says:

    There was a thread at PrawfsBlawg covering the issue of discrimination laws applying to lawyers.

  16. Ken Arromdee says:

    What if instead of a photographer or a lawyer, it was a speechwriter?

    Could a speechwriter be forced to write a pro-gay speech on what a great thing the wedding is, with an anti-discrimination penalty if he refuses?

  17. Ken Arromdee says:

    “whereas the wedding photographer holds herself out as taking on any client who walks in the door”

    The state didn’t have gay marriage. What this claim amounts to is saying that it is an inherent part of a wedding photographer’s job to photograph events that the state itself says are not weddings. It would make wedding photographers into “wedding and civil union photographers”.

    Furthermore, the argument “claims to take on all clients” never works unless you add an unspoken clause “… and is forced to do so”. Nobody who believes the “all clients” argument, after all, thinks the photographer could get away with it by having a sign “we reserve the right to refuse service to anyone” or otherwise by stating they don’t take on all clients. So this is not really a rule “if they take on all clients”, it’s a rule “if we force them to take on all clients”. If you’re honestly trying to justify the rule that just moves the need for justification up a level–why *should* they be forced to take all clients, when we don’t force a lawyer or speechwriter to do so?

  18. Shag from Brookline says:

    Ken’s concept of “force” may readily translate into farce.

  19. Ken Arromdee says:

    It’s not exactly optional. They can’t say “this isn’t the kind of business who takes on all clients”. By definition, they’re being forced. The government is just doing it in two steps: first, force them to claim to take on all clients, and second, punish them if they don’t act according to the claim that the government wouldn’t let them refuse to make.

  20. Shag from Brookline says:

    Ken’s concept of “force” is involved with just about any legislation. Just ask an anarcho-libertarian or even a moderate one. That’s how positive laws work as some are negatively “forced” to abide.

  21. NECOACH says:

    I agree to a degree of where the photographer stands. I mean you should be able photograph who you want no matter what, but since the law in New Mexico says otherwise i guess she has really no choice but to do it, which overshadows her religious beliefs. I think its selfish that the lesbian couple would sue her because she didn’t want to do their wedding, but who am i kidding that is the way society is today. Now that same sex marriages are being accepted in some states i guess this debate is far from over.