It was the third loss for the studio, and victory for Vanessa Willock.
Willock first contacted photographer Elaine Huguenin of Elane Photography in fall 2006 about taking pictures of a “same-gender ceremony” and was informed the studio only handled “traditional weddings.” When her partner contacted the studio without revealing her sexual orientation, the studio responded with a price list and sent a follow-up email.
The opinion follows a national trend, according to the Pennsylvania law professor who represented Willock on the appeal.
“I really think what’s most important about this case is that it is the first time (New Mexico) appellate courts have talked about scope of the statute in a really comprehensive way,” said Tobias Barrington Wolff, a University of Pennsylvania School of Law professor who has litigated, advocated and published on gay marriage, constitutional rights and related topics.
The Alliance Defense Fund, “a Christian legal alliance defending religious liberty, sanctity of life, marriage and the family,” stepped up to represent Huguenin and Elane. The fund didn’t respond to a request for comment.
The New Mexico Human Rights Commission and District Judge Alan Malott have concluded in rulings in 2008 and 2009 that the studio violated the Human Rights Act.
Malott found the studio is a “public accommodation” — an establishment that provides services to the public — and as such may not refuse its services on the basis of race, religion, color, national origin, ancestry, sex or sexual orientation, gender identity, or physical or mental handicap.
Elane Photography argued that as a provider of discretionary, unique and expressive services, it was not a public accommodation within the meaning of the act.
Judge Tim Garcia, writing for the court, said a 1981 state Supreme Court case made it clear the concept of “public accommodation” was expanded to other nontraditional and non-historic types of business.
The earlier ruling “signaled that this court should independently evaluate the applicability of the NMHRA in all future cases,” Garcia wrote.
Willock argued, and the court agreed, that the act’s language extends protection to goods and services as well as facilities and that it reaches “commercial activity beyond the 19th century paradigm of inn, restaurant or public carrier.”
Garcia wrote that “cases addressing public accommodations statutes with similarly broad language support a national trend that has expanded the traditional definition of business activity that constitutes a ‘public accommodation.’ ”
Elane Photography argued that categorically refusing to photograph same-sex commitment ceremonies did not constitute discrimination, but rather reflected its owners sincerely held religious and moral beliefs that prohibit the practice. Could an African-American photographer, under that rationale, be required to photograph a Ku Klux Klan rally? Elane asked hypothetically.
“The Ku Klux Klan is not a protected class,” the court noted. “Sexual orientation, however, is protected.”
Judge Cynthia Fry joined in the opinion. Judge James Wechsler wrote a specially concurring opinion that rejected Elane Photography’s claim that its religious freedom rights would be violated by having to photograph the ceremony.
The facts of the case, he wrote, don’t indicate whether the studio was aware there was any religious aspect to the ceremony.
— This article appeared on page A1 of the Albuquerque Journal