I wanted to comment briefly on Elane Photography vs Willock.
The case is pretty simple. Vanessa Willock emailed Elane Photography asking if they’d photograph her and her partner’s same-sex commitment ceremony (New Mexico law doesn’t recognize gay marriages). Elaine Huguenin emailed back saying “we do not photograph same-sex weddings, but again, thanks for checking out our site! Have a great day.”
Vanessa Willock did not, it seems safe to infer, have a great day. In her later testimony, Willock reported feeling shocked, angered, saddened, and fearful by Huguenin’s response. She couldn’t bring herself to contact other photographers, because she was anxious that she’d get a similar response. (She did eventually hire a photographer recommended to her by a friend.)
Willock eventually complained to the New Mexico Human Rights Commission, asking for an injunction ordering Elane Photography to stop discriminating against same-sex ceremonies. Willock refused to ask for any “actual damages,” but asked for and was awarded her attorney’s fees, which were about $6000. (You can read the New Mexico Human Rights Commission’s ruling here, in pdf form.)
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A few points about this case.
1) I’ve often seen Elane Photography cited as an example of why we should oppose marriage equality. That argument makes no sense. New Mexico doesn’t have marriage equality; therefore, lack of marriage equality will not prevent legal conflicts of this sort.
2) I agree with Eugene Volokh, who argues that the decision should be overturned on First Amendment grounds: “It seems to me that the right to be free from compelled speech includes the right not to create First-Amendment-protected expression — photographs, paintings, songs, press releases, or what have you — that you disagree with, even if no-one would perceive you as endorsing that expression.”
3) It’s wrong for Ms. Huguenin to discriminate against same-sex ceremonies, but this isn’t a wrong that should have a legal remedy. I’d say the same if Ms. Huguenin was discriminating against Jewish weddings, mixed-race weddings, or weddings of fat people. Artists, even commercial artists, have a legal right to decide what to say (or not say). The proper remedy for Ms. Willock would have been to let her friends and family know that they shouldn’t hire Elane Photography and why.
4) Those in favor of this decision tend to invoke a slippery-slope argument: “if photographers are allowed to refuse to photograph same-sex ceremonies, then we have to allow hotel owners to refuse service to gay couples, doctors to refuse to treat gay patients,” etc. This argument assumes, mistakenly, that it’s not possible for the law to make some sensible distinctions in this area. For example, most state anti-discrimination laws define “public accommodation” more narrowly than New Mexico’s law does, and this hasn’t led to any of the predicted “slippery slope” effects.