Elane Photography, LLC v. Willock

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number:______________

Filing Date: August 22, 2013

Docket No. 33,687

ELANE PHOTOGRAPHY, LLC,

Plaintiff-Petitioner,

v.

VANESSA WILLOCK,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI

Alan M. Malott, District Judge

Modrall, Sperling, Roehl, Harris & Sisk, P.A.

Emil John Kiehne

Albuquerque, NM

Becht Law Office

Paul F. Becht

Albuquerque, NM

Alliance Defending Freedom

Jordan W. Lorence

Washington, D.C.

Alliance Defending Freedom

James A. Campbell

Scottsdale, AZ

for Petitioner

Lopez, Sakura & Boyd, L.L.P.

Julie Sakura

Santa Fe, NM

Sarah Steadman

1

Santa Fe, NM

Tobias Barrington Wolff

Philadelphia, PA

for Respondent

Doughty & West, P.A.

Robert M. Doughty, III

William Wayne Wirkus

Albuquerque, NM

Asma Uddin

Diana Verm

Washington, D.C.

Douglas Laycock

Charlottesville, VA

for Amicus Curiae The Becket Fund for Religious Liberty

Law Office of Michael J. Thomas, L.L.C.

Michael J. Thomas

Las Cruces, NM

Eugene Volokh

Los Angeles, CA

for Amicus Curiae The Cato Institute

Evie M. Jilek

Albuquerque, NM

for Amici Curiae Wedding Photographers

Natalie A. Bruce

Albuquerque, NM

Steven H. Shiffrin

Ithaca, NY

for Amici Curiae Steven H. Shiffrin and Michael C. Dorf

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Sutin, Thayer & Browne, P.C.

Kerry C. Kiernan

Lynn E. Mostoller

Albuquerque, NM

for Amicus Curiae New Mexico Small Businesses

ACLU of New Mexico

Laura Louise Schauer Ives

Albuquerque, NM

LGBT & AIDS Project, ACLU Foundation

Joshua A. Block

New York, NY

for Amici Curiae American Civil Liberties Union Foundation and American Civil

Liberties Union of New Mexico

OPINION

CHÁVEZ, Justice.

{1} By enacting the New Mexico Human Rights Act (NMHRA), NMSA 1978, §§ 28-1-1

to -13 (1969, as amended through 2007), the Legislature has made the policy decision to

prohibit public accommodations from discriminating against people based on their sexual

orientation. Elane Photography, which does not contest its public accommodation status

under the NMHRA, offers wedding photography services to the general public and posts its

photographs on a password-protected website for its customers. In this case, Elane

Photography refused to photograph a commitment ceremony between two women. The

questions presented are (1) whether Elane Photography violated the NMHRA when it

refused to photograph the commitment ceremony, and if so, (2) whether this application of

the NMHRA violates either the Free Speech or the Free Exercise Clause of the First

Amendment to the United States Constitution, or (3) whether this application violates the

New Mexico Religious Freedom Restoration Act (NMRFRA), NMSA 1978, §§ 28-22-1 to

-5 (2000).

{2} First, we conclude that a commercial photography business that offers its services

to the public, thereby increasing its visibility to potential clients, is subject to the

antidiscrimination provisions of the NMHRA and must serve same-sex couples on the same

basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to

photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as

if it had refused to photograph a wedding between people of different races.

{3} Second, we conclude that the NMHRA does not violate free speech guarantees

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because the NMHRA does not compel Elane Photography to either speak a government-

mandated message or to publish the speech of another. The purpose of the NMHRA is to

ensure that businesses offering services to the general public do not discriminate against

protected classes of people, and the United States Supreme Court has made it clear that the

First Amendment permits such regulation by states. Businesses that choose to be public

accommodations must comply with the NMHRA, although such businesses retain their First

Amendment rights to express their religious or political beliefs. They may, for example, post

a disclaimer on their website or in their studio advertising that they oppose same-sex

marriage but that they comply with applicable antidiscrimination laws. We also hold that

the NMHRA is a neutral law of general applicability, and as such, it does not violate the Free

Exercise Clause of the First Amendment.

{4} Finally, we hold that the NMRFRA is inapplicable in this case because the

government is not a party. For these reasons, we affirm the judgment of the Court of

Appeals.

BACKGROUND

{5} The NMHRA prohibits, among other things, discriminatory practices against certain

defined classes of people. See § 28-1-7. In 2003, the NMHRA was amended to add “sexual

orientation” as a class of persons protected from discriminatory treatment. 2003 N.M. Laws,

ch. 383, § 2. “Sexual orientation” is defined in the NMHRA as “heterosexuality,

homosexuality or bisexuality, whether actual or perceived.” Section 28-1-2(P). In this case,

we are concerned with discrimination by a public accommodation against a person because

of that person’s real or perceived homosexuality—that person’s propensity to experience

feelings of attraction and romantic love for other members of the same sex.

{6} “Public accommodation” is defined in the NMHRA as “any establishment that

provides or offers its services, facilities, accommodations or goods to the public, but does

not include a bona fide private club or other place or establishment that is by its nature and

use distinctly private.” Section 28-1-2(H). Thus, a business that elects not to offer its goods

or services to the public is not subject to the NMHRA.

{7} Vanessa Willock contacted Elane Photography, LLC, by e-mail to inquire about

Elane Photography’s services and to determine whether it would be available to photograph

her commitment ceremony1 to another woman. Elane Photography’s co-owner and lead

photographer, Elaine Huguenin, is personally opposed to same-sex marriage and will not

1

Willock referred to the event as a “commitment ceremony” in her e-mail to Elane

Photography. However, the parties agree that the ceremony was essentially a

wedding—Elane Photography emphasizes that there were vows, rings, a minister, flower

girls, and a wedding dress, and Willock uses the word “wedding” to describe the ceremony

in her brief. We use the terms “wedding” and “commitment ceremony” interchangeably.

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photograph any image or event that violates her religious beliefs. Huguenin responded to

Willock that Elane Photography photographed only “traditional weddings.” Willock e-

mailed back and asked, “Are you saying that your company does not offer your photography

services to same-sex couples?” Huguenin responded, “Yes, you are correct in saying we do

not photograph same-sex weddings,” and thanked Willock for her interest.

{8} In order to verify Elane Photography’s policy, Willock’s partner, Misti Collinsworth,

e-mailed Elane Photography and inquired about its willingness to photograph a wedding,

without mentioning the sexes of the participants. Huguenin sent Collinsworth a list of

pricing information and an invitation to meet with her and discuss her services. A few weeks

later, Huguenin again e-mailed Collinsworth to follow up.

{9} Willock filed a discrimination complaint against Elane Photography with the New

Mexico Human Rights Commission for discriminating against her based on her sexual

orientation in violation of the NMHRA. The Commission concluded that Elane Photography

had discriminated against Willock in violation of Section 28-1-7(F), which prohibits

discrimination by public accommodations on the basis of sexual orientation, among other

protected classifications. It awarded Willock attorneys’ fees, which Willock later waived.

No other monetary or injunctive relief was granted.

{10} Elane Photography appealed to the Second Judicial District Court for a trial de novo

pursuant to Section 28-1-13(A). See NMSA 1978, § 39-3-1 (1955) (“All appeals from

inferior tribunals to the district courts shall be tried anew in said courts on their merits, as

if no trial had been had below, except as otherwise provided by law.”). Elane Photography

sought a reversal of the award of attorneys’ fees, a declaratory judgment that it had not

discriminated on the basis of sexual orientation, and a ruling that its rights had been violated,

among other relief. The parties filed cross-motions for summary judgment, and the district

court granted summary judgment for Willock. Elane Photography again appealed, and the

Court of Appeals affirmed. Elane Photography, LLC v. Willock, 2012-NMCA-086, ¶ 1, 284

P.3d 428. We granted certiorari.

{11} Elane Photography argues before this Court that: (1) it did not discriminate on the

basis of sexual orientation, and therefore it did not violate the NMHRA; or, alternatively, (2)

by requiring Elane Photography to accept clients against its will, the NMHRA violates the

protection of the First Amendment against compelled speech; (3) the NMHRA violates

Elane Photography’s First Amendment right to freely exercise its religion; and (4) the

NMHRA violates Elane Photography’s right under the NMRFRA to freely exercise its

religion. For the reasons that follow, we reject Elane Photography’s arguments and affirm

summary judgment for Willock.

DISCUSSION

{12} The parties agree on the facts in this case, and the only question for this Court to

consider is whether Willock is entitled to judgment as a matter of law. See Self v. United

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Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582 (“Summary judgment

is appropriate where there are no genuine issues of material fact and the movant is entitled

to judgment as a matter of law.”). On appeal, we review a grant of summary judgment de

novo. Id.

I. ELANE PHOTOGRAPHY REFUSED TO SERVE WILLOCK ON THE

BASIS OF HER SEXUAL ORIENTATION IN VIOLATION OF THE NMHRA

{13} The NMHRA seeks to promote the equal rights of people within certain specified

classes by protecting them against discriminatory treatment. See Juneau v. Intel Corp.,

2006-NMSC-002, ¶ 14, 139 N.M. 12, 127 P.3d 548 (“The NMHRA protects against

discriminatory treatment . . . .”). To accomplish this goal, the NMHRA makes it unlawful

for “any person in any public accommodation to make a distinction, directly or indirectly,

in offering or refusing to offer its services, facilities, accommodations or goods to any person

because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender

identity, spousal affiliation or physical or mental handicap.” Section 28-1-7(F) (emphasis

added). The Court of Appeals affirmed the district court’s holding that Elane Photography

was a public accommodation under Section 28-1-2(H), Elane Photography, 2012-NMCA-

086, ¶ 18, and Elane Photography did not challenge that holding in this appeal. Accordingly,

Elane Photography waived its right to challenge that conclusion as a matter of New Mexico

law. See Fikes v. Furst, 2003-NMSC-033, ¶ 8, 134 N.M. 602, 81 P.3d 545 (“[I]t is improper

for this Court to consider any questions except those set forth in the petition for certiorari.”).

We therefore accept the Court of Appeals’ conclusion that at the time of its interactions with

Willock and Collinsworth, Elane Photography was a public accommodation as defined in

Section 28-1-2(H), and as such, was subject to Section 28-1-7(F) of the NMHRA. See Elane

Photography, 2012-NMCA-086, ¶¶ 14, 18.

{14} Elane Photography argues that it did not violate the NMHRA because it did not

discriminate on the basis of sexual orientation when it refused service to Willock. Instead,

Elane Photography explains that it “did not want to convey through [Huguenin]’s pictures

the story of an event celebrating an understanding of marriage that conflicts with [the

owners’] beliefs.” Elane Photography argues that it would have taken portrait photographs

and performed other services for same-sex customers, so long as they did not request

photographs that involved or endorsed same-sex weddings. However, Elane Photograph’s

owners testified that they would also have refused to take photos of same-sex couples in

other contexts, including photos of a couple holding hands or showing affection for each

other. Elane Photography also argues in its brief that it would have turned away

heterosexual customers if the customers asked for photographs in a context that endorsed

same-sex marriage. For example, Elane Photography states that it “would have declined the

request even if the ceremony was part of a movie and the actors playing the same-sex couple

were heterosexual.” Therefore, Elane Photography reasons that it did not discriminate

“because of . . . sexual orientation,” § 28-1-7(F), but because it did not wish to endorse

Willock’s and Collinsworth’s wedding.

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{15} The NMHRA prohibits discrimination in broad terms by forbidding “any person in

any public accommodation to make a distinction, directly or indirectly, in offering or

refusing to offer its services . . . because of . . . sexual orientation.” Section 28-1-7(F)

(emphasis added). Elane Photography is primarily a wedding photography business. It

provides wedding photography services to heterosexual couples, but it refuses to work with

homosexual couples under equivalent circumstances.

{16} Elane Photography’s argument is an attempt to distinguish between an individual’s

status of being homosexual and his or her conduct in openly committing to a person of the

same sex. It was apparently Willock’s e-mail request to have Elane Photography photograph

Willock’s commitment ceremony to another woman that signaled Willock’s sexual

orientation to Elane Photography, regardless of whether that assessment was real or merely

perceived. The difficulty in distinguishing between status and conduct in the context of

sexual orientation discrimination is that people may base their judgment about an

individual’s sexual orientation on the individual’s conduct. To allow discrimination based

on conduct so closely correlated with sexual orientation would severely undermine the

purpose of the NMHRA.

{17} The United States Supreme Court has rejected similar attempts to distinguish

between a protected status and conduct closely correlated with that status. In Christian

Legal Society Chapter of the University of California, Hastings College of the Law v.

Martinez, ___ U.S. ___, ___, 130 S. Ct. 2971, 2980 (2010), students at Hastings College of

the Law formed a chapter of the Christian Legal Society and sought formal recognition from

the school. The Christian Legal Society required its members to affirm their belief in the

divinity of Jesus Christ and to refrain from “‘unrepentant homosexual conduct.’” Id. & id.

n.3. Hastings refused to recognize the organization on the ground that it violated Hastings’

nondiscrimination policy, which prohibited exclusion based on religion or sexual orientation.

Id. at ___, 130 S. Ct. at 2980. The Christian Legal Society argued that “it [did] not exclude

individuals because of sexual orientation, but rather on the basis of a conjunction of conduct

and the belief that the conduct is not wrong.” Id. at ___, 130 S. Ct. at 2990 (internal

quotation marks omitted). The United States Supreme Court rejected this argument, stating:

Our decisions have declined to distinguish between status and conduct in this

context. See Lawrence v. Texas, 539 U.S. 558, 575, 123 S.Ct. 2472, 156

L.Ed.2d 508 (2003) (“When homosexual conduct is made criminal by the law

of the State, that declaration in and of itself is an invitation to subject

homosexual persons to discrimination.” (emphasis added)); id., at 583, 123

S.Ct. 2472 (O’Connor, J., concurring in judgment) (“While it is true that the

law applies only to conduct, the conduct targeted by this law is conduct that

is closely correlated with being homosexual. Under such circumstances,

[the] law is targeted at more than conduct. It is instead directed toward gay

persons as a class.”); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S.

263, 270, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) (“A tax on wearing

yarmulkes is a tax on Jews.”).

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Id. We agree that when a law prohibits discrimination on the basis of sexual orientation, that

law similarly protects conduct that is inextricably tied to sexual orientation. Otherwise we

would interpret the NMHRA as protecting same-gender couples against discriminatory

treatment, but only to the extent that they do not openly display their same-gender sexual

orientation.

{18} In this case, we see no basis for distinguishing between discrimination based on

sexual orientation and discrimination based on someone’s conduct of publicly committing

to a person of the same sex. Our role is to determine and follow the intent of the Legislature,

State v. Hall, 2013-NMSC-001, ¶ 9, 294 P.3d 1235, and the NMHRA evinces a clear intent

to prevent discrimination as it is broadly defined in Section 28-1-7(F). New Mexico has a

strong state policy of promoting equality for its residents regardless of sexual orientation.

See Section 28-1-7 (defining unlawful discriminatory practices); NMSA 1978, § 29-21-2

(2009) (prohibiting profiling by law enforcement on the basis of sexual orientation); NMSA

1978, § 31-18B-2(D) (2007) (including sexual orientation as a protected status under the

Hate Crimes Act); Chatterjee v. King, 2012-NMSC-019, ¶ 36, 280 P.3d 283 (recognizing

that a child can have two legal parents of the same sex); In re Jacinta M., 1988-NMCA-100,

¶ 11, 107 N.M. 769, 764 P.2d 1327 (holding that a children’s court could not find a

custodian unsuitable solely because of his or her sexual orientation). As a matter of New

Mexico law, the NMHRA prohibits a public accommodation from refusing to serve a client

based on sexual orientation, and Elane Photography violated the law by refusing to

photograph Willock’s same-sex commitment ceremony.

{19} We are not persuaded by Elane Photography’s argument that it does not violate the

NMHRA because it will photograph a gay person (for example, in single-person portraits)

so long as the photographs do not reflect the client’s sexual preferences. The NMHRA

prohibits public accommodations from making any distinction in the services they offer to

customers on the basis of protected classifications. Section 28-1-7(F). For example, if a

restaurant offers a full menu to male customers, it may not refuse to serve entrees to women,

even if it will serve them appetizers. The NMHRA does not permit businesses to offer a

“limited menu” of goods or services to customers on the basis of a status that fits within one

of the protected categories. Therefore, Elane Photography’s willingness to offer some

services to Willock does not cure its refusal to provide other services that it offered to the

general public. Similarly, it does not help Elane Photography to argue that it would have

turned away heterosexual polygamous weddings or heterosexual persons pretending to have

a same-sex wedding. Those situations are not at issue here, and, if anything, these arguments

support a finding that Elane Photography intended to discriminate against Willock based on

her same-sex sexual orientation. Therefore, we hold that Elane Photography discriminated

against Willock on the basis of sexual orientation in violation of the NMHRA.

II. THE NMHRA DOES NOT VIOLATE ELANE PHOTOGRAPHY’S FIRST

AMENDMENT RIGHTS

{20} Elane Photography challenges enforcement of the NMHRA on the grounds that

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enforcement of the law violates its right to free speech and the free exercise of its religion

under the First Amendment to the United States Constitution. For the reasons that follow,

we reject both of these arguments.

A. THE NMHRA DOES NOT VIOLATE ELANE PHOTOGRAPHY’S FREE

SPEECH RIGHTS

{21} Specifically regarding its free speech rights, Elane Photography argues that the

NMHRA compels it to speak in violation of the First Amendment by requiring it to

photograph a same-sex commitment ceremony, even though it is against the owners’

personal beliefs. We disagree.

{22} The First Amendment to the United States Constitution provides that “Congress shall

make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. This prohibition

applies equally to state governments. Gitlow v. New York, 268 U.S. 652, 666 (1925)

(assuming without deciding that free speech and press rights are incorporated by the Due

Process Clause of the Fourteenth Amendment); Edwards v. South Carolina, 372 U.S. 229,

235 (1963) (“It has long been established that these First Amendment freedoms [of speech,

assembly, and petition] are protected by the Fourteenth Amendment from invasion by the

States.”). United States Supreme Court precedent makes it clear that the right to speak freely

includes the right to refrain from speaking. See, e.g., Wooley v. Maynard, 430 U.S. 705, 714

(1977) (“[T]he right of freedom of thought protected by the First Amendment against state

action includes both the right to speak freely and the right to refrain from speaking at all.”).

{23} Elane Photography observes that photography is an expressive art form and that

photographs can fall within the constitutional protections of free speech. See Hurley v. Irish-

Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995) (observing that

abstract art and instrumental music are “unquestionably shielded” by the First Amendment).

Elane Photography also states that in the course of its business, it creates and edits

photographs for its clients so as to tell a positive story about each wedding it photographs,

and the company and its owners would prefer not to send a positive message about same-sex

weddings or same-sex marriage. Elane Photography concludes that by requiring it to

photograph same-sex weddings on the same basis that it photographs opposite-sex weddings,

the NMHRA unconstitutionally compels it to “create and engage in expression” that sends

a positive message about same-sex marriage not shared by its owner.

{24} The compelled-speech doctrine on which Elane Photography relies is comprised of

two lines of cases. The first line of cases establishes the proposition that the government

may not require an individual to “speak the government’s message.” Rumsfeld v. Forum for

Academic & Institutional Rights, Inc., 547 U.S. 47, 63 (2006). The second line of cases

prohibits the government from requiring a private actor “to host or accommodate another

speaker’s message.” Id. Elane Photography argues that by requiring it to photograph same-

sex weddings on the same basis as opposite-sex weddings, the NMHRA violates both

prohibitions. We address each argument in turn.

9

1. The NMHRA does not compel Elane Photography to speak the government’s

message

{25} The right to refrain from speaking was established in West Virginia State Board of

Education v. Barnette, 319 U.S. 624, 642 (1943), in which the United States Supreme Court

held that the State of West Virginia could not constitutionally require students to salute the

American flag and recite the Pledge of Allegiance. The Court held that a state could not

require “affirmation of a belief and an attitude of mind,” id. at 633, and that the state had

impermissibly “invade[d] the sphere of intellect and spirit which it is the purpose of the First

Amendment to our Constitution to reserve from all official control,” id. at 642.

{26} Similarly, in Wooley, 430 U.S. at 717, the United States Supreme Court held that the

State of New Hampshire could not constitutionally punish a man for covering the state motto

on the license plate of his car. The Wooley plaintiffs considered “Live Free or Die,” the state

motto, “repugnant to their moral, religious, and political beliefs,” id. at 707, and they raised

a First Amendment challenge to the state’s law forbidding residents to hide or alter the

motto. Id. at 709, 713. The Wooley Court framed the question presented as “whether the

State may constitutionally require an individual to participate in the dissemination of an

ideological message by displaying it on his [or her] private property in a manner and for the

express purpose that it be observed and read by the public” and concluded that the measure

was unconstitutional. Id. at 713.

{27} Elane Photography reads Wooley and Barnette to mean that the government may not

compel people “to engage in unwanted expression.” However, the cases themselves are

narrower than Elane Photography suggests; they involve situations in which the speakers

were compelled to publicly “speak the government’s message.” Rumsfeld, 547 U.S. at 63.

In Wooley and Barnette, the respective states impermissibly required their residents to affirm

or display a specific government-selected message: “Live Free or Die” in Wooley, 430 U.S.

at 707, and allegiance to the flag in Barnette, 319 U.S. at 632-33. Both cases stand for the

proposition that the First Amendment does not permit the government to “prescribe what

shall be orthodox in politics, nationalism, religion, or other matters of opinion or force

citizens to confess by word or act their faith therein.” Barnette, 319 U.S. at 642. However,

unlike the laws at issue in Wooley and Barnette, the NMHRA does not require Elane

Photography to recite or display any message. It does not even require Elane Photography

to take photographs. The NMHRA only mandates that if Elane Photography operates a

business as a public accommodation, it cannot discriminate against potential clients based

on their sexual orientation.

{28} Furthermore, the laws at issue in Wooley and Barnette had little purpose other than

to promote the government-sanctioned message. See Wooley, 430 U.S. at 716-17 (rejecting

the state’s contentions that (1) the state motto made it easier for law enforcement to identify

improper license plates, and (2) the state hoped “to communicate to others an official view

as to proper appreciation of history, state pride, and individualism”); Barnette, 319 U.S. at

640 (identifying “national unity” as the goal of compulsory flag salutes) (internal quotation

10

marks and citation omitted). The Barnette Court noted that the dissenting students’ choice

not to salute the flag “[did] not bring them into collision with rights asserted by any other

individual.” 319 U.S. at 630. That is not the case here, where Elane Photography’s asserted

right not to serve same-sex couples directly conflicts with Willock’s right under Section 28-

1-7(F) of the NMHRA to obtain goods and services from a public accommodation without

discrimination on the basis of her sexual orientation. Antidiscrimination laws have

important purposes that go beyond expressing government values: they ensure that services

are freely available in the market, and they protect individuals from humiliation and

dignitary harm. See Daniel v. Paul, 395 U.S. 298, 307-08 (1969) (stating that the purpose

of Title II of the Civil Rights Act of 1964 was “to [re]move the daily affront and humiliation

involved in discriminatory denials of access to facilities ostensibly open to the general

public”) (internal quotation marks and citation omitted); Katzenbach v. McClung, 379 U.S.

294, 299-300 (1964) (discussing the economic impact of discrimination in public

accommodations).

{29} The fact that compliance with the NMHRA will require Elane Photography to

produce photographs for same-sex weddings to the extent that it would provide those

services to a heterosexual couple does not mean that the NMHRA compels speech in the

manner of the laws challenged in Wooley and Barnette. Elane Photography’s argument here

is more analogous to the claims raised by the law schools in Rumsfeld. In that case, a federal

law made universities’ federal funding contingent on the universities allowing military

recruiters access to university facilities and services on the same basis as other, non-military

recruiters. 547 U.S. at 52-53. A group of law schools that objected to the ban on gays in the

military challenged the law on a number of constitutional grounds, including that the law in

question compelled them to speak the government’s message. Id. at 52, 53, 61-62. In order

to assist the military recruiters, schools had to provide services that involved speech, “such

as sending e-mails and distributing flyers.” Id. at 60.

{30} The United States Supreme Court held that this requirement did not constitute

compelled speech. Id. at 62. The Court observed that the federal law “neither limits what

law schools may say nor requires them to say anything.” Id. at 60. Schools were compelled

only to provide the type of speech-related services to military recruiters that they provided

to non-military recruiters. Id. at 62. “There [was] nothing . . . approaching a

Government-mandated pledge or motto that the school [had to] endorse.” Id.

{31} The same situation is true in the instant case. Like the law in Rumsfeld, the NMHRA

does not require any affirmation of belief by regulated public accommodations; instead, it

requires businesses that offer services to the public at large to provide those services without

regard for race, sex, sexual orientation, or other protected classifications. Section 28-1-7(F).

The fact that these services may involve speech or other expressive services does not render

the NMHRA unconstitutional. See Rumsfeld, 547 U.S. at 62 (“The compelled speech to

which the law schools point is plainly incidental to the [law’s] regulation of conduct, and it

has never been deemed an abridgment of freedom of speech or press to make a course of

conduct illegal merely because the conduct was in part initiated, evidenced, or carried out

11

by means of language, either spoken, written, or printed.” (internal quotation marks and

citation omitted)). Elane Photography is compelled to take photographs of same-sex

weddings only to the extent that it would provide the same services to a heterosexual couple.

See id. at 62 (speech assisting military recruiters was “only ‘compelled’ if, and to the extent,

the school provide[d] such speech for other recruiters”).

2. The NMHRA does not compel Elane Photography to host or accommodate the

message of another speaker

a. State laws prohibiting discrimination by public accommodations do not constitute

compelled speech

{32} The second line of compelled-speech cases deals with situations in which a

government entity has required a speaker to “host or accommodate another speaker’s

message.” Id. at 63. Elane Photography argues that a same-sex wedding or commitment

ceremony is an expressive event, and that by requiring it to accept a client who is having a

same-sex wedding, the NMHRA compels it to facilitate the messages inherent in that event.

Elane Photography argues that there are two messages conveyed by a same-sex wedding or

commitment ceremony: first, that such ceremonies exist, and second, that these occasions

deserve celebration and approval. Elane Photography does not wish to convey either of these

messages.

{33} The United States Supreme Court has never found a compelled-speech violation

arising from the application of antidiscrimination laws to a for-profit public accommodation.

In fact, it has suggested that public accommodation laws are generally constitutional. See

Hurley, 515 U.S. at 572 (“Provisions like these are well within the State’s usual power to

enact when a legislature has reason to believe that a given group is the target of

discrimination, and they do not, as a general matter, violate the First or Fourteenth

Amendments . . . . [T]he focal point of [such statutes is] rather on the act of discriminating

against individuals in the provision of publicly available goods, privileges, and services on

the proscribed grounds.”). The United States Supreme Court has found constitutional

problems with some applications of state public accommodation laws, but those problems

have arisen when states have applied their public accommodation laws to free-speech events

such as privately organized parades, id. at 566, 573, 580-81, and private membership

organizations, Boy Scouts of Am. v. Dale, 530 U.S. 640, 659, 659 n.4 (2000).2 Elane

Photography, however, is an ordinary public accommodation, a “clearly commercial

entit[y],” id. at 657, that sells goods and services to the public.

{34} The NMHRA does not, nor could it, regulate the content of the photographs that

Elane Photography produces. It does not, for example, mandate that Elane Photography take

2

Dale also was decided on freedom of association grounds. Id. at 644. Elane

Photography has not argued that its right of expressive association was violated.

12

posed photographs rather than candid shots, nor does it require every wedding album to

contain a picture of the bride’s bouquet. Indeed, the NMHRA does not mandate that Elane

Photography choose to take wedding pictures; that is the exclusive choice of Elane

Photography. Like all public accommodation laws, the NMHRA regulates “the act of

discriminating against individuals in the provision of publicly available goods, privileges,

and services on the proscribed grounds.” See Hurley, 515 U.S. at 572 (describing the

Massachusetts public accommodation law). Elane Photography argues that because the

service it provides is photography, and because photography is expressive, “some of [the]

images will inevitably express the messages inherent in [the] event.” In essence, then, Elane

Photography argues that by limiting its ability to choose its clients, the NMHRA forces it to

produce photographs expressing its clients’ messages even when the messages are contrary

to Elane Photography’s beliefs.

{35} Elane Photography has misunderstood this issue. It believes that because it is a

photography business, it cannot be subject to public accommodation laws. The reality is that

because it is a public accommodation, its provision of services can be regulated, even though

those services include artistic and creative work. If Elane Photography took photographs on

its own time and sold them at a gallery, or if it was hired by certain clients but did not offer

its services to the general public, the law would not apply to Elane Photography’s choice of

whom to photograph or not. The difference in the present case is that the photographs that

are allegedly compelled by the NMHRA are photographs that Elane Photography produces

for hire in the ordinary course of its business as a public accommodation. This

determination has no relation to the artistic merit of photographs produced by Elane

Photography. If Annie Leibovitz or Peter Lindbergh worked as public accommodations in

New Mexico, they would be subject to the provisions of the NMHRA. Unlike the

defendants in Hurley or the other cases in which the United States Supreme Court has found

compelled-speech violations, Elane Photography sells its expressive services to the public.

It may be that Elane Photography expresses its clients’ messages in its photographs, but only

because it is hired to do so. The NMHRA requires that Elane Photography perform the same

services for a same-sex couple as it would for an opposite-sex couple; the fact that these

services require photography stems from the nature of Elane Photography’s chosen line of

business.

{36} The cases in which the United States Supreme Court found that the government

unconstitutionally required a speaker to host or accommodate another speaker’s message are

distinctly different because they involve direct government interference with the speaker’s

own message, as opposed to a message-for-hire. In two cases, the Court found a compelled-

speech problem where the government explicitly required a publisher to distribute an

opposing point of view. In the first of these cases, Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241, 244 (1974), the United States Supreme Court invalidated Florida’s “‘right of

reply’” statute. The law provided that if a candidate for public office was criticized in a

Florida newspaper, the candidate could demand that the newspaper print his or her reply,

free of cost, in as conspicuous a location as the criticism that had appeared. Id. The Court

expressed concern that the statute might deter editors from printing criticism of candidates,

13

thereby chilling political news coverage and commentary in the state. Id. at 257.

Furthermore, the statute unconstitutionally wrested control over editorial decisions about

“[t]he choice of material to go into a newspaper, and the decisions made as to limitations on

the size and content of the paper, and treatment of public issues and public officials” away

from the editors and into the hands of the state. Id. at 258.

{37} Similarly, in Pacific Gas & Electric Co. v. Public Utilities Commission of California,

475 U.S. 1, 4, 20-21, 26 (1986) (plurality opinion; Marshall, J., concurring in judgment), a

plurality of the United States Supreme Court held unconstitutional a decision by the

California Public Utilities Commission to allow a third-party group to send out messages

with a utility’s billing statements. The utility had traditionally distributed a newsletter to its

customers with its monthly billing statements. Id. at 5 (plurality opinion). The Public Utility

Commission decided that the space in the billing envelopes belonged to the customers, not

to the utility, and it allowed an intervenor in a ratemaking proceeding involving the utility

to send out messages in the utility’s billing envelopes four times per year. Id. at 5-6, 13

(plurality opinion). Citing Tornillo, the United States Supreme Court held that this decision

unconstitutionally compelled the utility to accommodate the intervenor’s speech. Pacific

Gas, 475 U.S. at 9-13 (plurality opinion). The Court noted that the Commission’s ruling

required the utility to disseminate messages that were hostile to the utility’s own interests,

id. at 14 (plurality opinion), and, depending on what the intervenors said, the utility might

“be forced either to appear to agree with [the intervenors’] views or to respond,” when it

would have preferred to remain silent on an issue. Id. at 15 (plurality opinion).

{38} In both Pacific Gas and Tornillo, the government commandeered a speaker’s means

of reaching its audience and required the speaker to disseminate an opposing point of view.

Nothing analogous occurred in the present case. Elane Photography is not required to print

the names and addresses of rival photographers in its albums, nor does Elane Photography

distribute a newsletter in which the government has required it to print someone else’s ideas.

Instead, the allegedly compelled message is Elane Photography’s own work on behalf of its

clients, which it distributes only to its clients and their loved ones. The government has not

interfered with Elane Photography’s editorial judgment; the only choice regulated is Elane

Photography’s choice of clients.

{39} In addition, although Elane Photography raises concerns that its speech will be

chilled, there is no risk of a chilling effect in this case. In Tornillo, the “‘right of reply’”

statute could have discouraged newspapers from printing criticism of political candidates.

418 U.S. at 257. By contrast, the relevant choice facing Elane Photography and similar

businesses is not whether to publish a story, as in Tornillo, but whether to operate as a public

accommodation. If a commercial photography business wishes to offer its services to the

public, thereby increasing its visibility to potential clients, it will be subject to the

antidiscrimination provisions of the NMHRA. If a commercial photography business

believes that the NMHRA stifles its creativity, it can remain in business, but it can cease to

offer its services to the public at large. Elane Photography’s choice to offer its services to

the public is a business decision, not a decision about its freedom of speech.

14

{40} In Pacific Gas and Tornillo, a government entity overtly required a speaker to

publicize an opposing message. Elane Photography cites a third case, Hurley, in which the

compelled-speech violation was more subtle. In Hurley, 515 U.S. at 560-61, the private

organizers of the Boston St. Patrick’s Day parade denied the application of a group of gay,

lesbian, and bisexual Irish-Americans (known as GLIB) to march as a unit in the parade. Id.

at 561. Massachusetts courts held that this constituted discrimination on the basis of sexual

orientation. Id. at 561, 563-64. The United States Supreme Court reversed, holding that the

parade did not discriminate against gay participants; instead, the issue was “the admission

of GLIB as its own parade unit carrying its own banner,” which had unquestionable

expressive content. Id. at 572, 581.

{41} Hurley is different from the instant case in two significant ways. First, the

Massachusetts courts appear to have erroneously classified the privately organized parade

as a public accommodation. See id. at 573 (“[T]he state courts’ application of the statute had

the effect of declaring the sponsors’ speech itself to be the public accommodation.”).

Second, parades by their nature express a message to the public. Id. at 568. By requiring

the parade organizers to include GLIB, the Massachusetts courts directly altered the

expressive content of the parade. Id. at 572-73. The presence of a group in a parade carries

expressive weight, and Hurley implicated associational rights as well as free-speech rights.

Id. at 565; see Dale, 530 U.S. at 659 (“Although we did not explicitly deem the parade in

Hurley an expressive association, the analysis we applied there is similar to the analysis we

apply here.”). Elane Photography argues that photographs are also inherently expressive,

so Hurley must apply to this case as well. However, the NMHRA applies not to Elane

Photography’s photographs but to its business operation, and in particular, its business

decision not to offer its services to protected classes of people. While photography may be

expressive, the operation of a photography business is not. By way of analogy, the NMHRA

could not dictate which groups a parade organizer had to include. However, if a business

sold parade-planning services, and that business operated as a public accommodation, the

NMHRA would prohibit that business from refusing to offer parade-planning services to

persons because of their sexual orientation. Thus, Elane Photography’s reliance on Hurley

is misplaced.

{42} Elane Photography’s situation is actually clearer than that of our hypothetical

business that organized parades, because even a parade for hire would still be a public event.

See id. at 568 (describing the public nature of parades and their dependence on parade-

watchers). By contrast, Elane Photography does not routinely publish for or display its

wedding photographs to the public. Instead, it creates an album for each customer and posts

the photographs on a password-protected website for the customers and their friends and

family to view. Whatever message Elane Photography’s photographs may express, they

express that message only to the clients and their loved ones, not to the public.

{43} We note that when Elane Photography displays its photographs publicly and on its

own behalf, rather than for a client, such as in advertising, its choices of which photographs

to display are entirely its own. The NMHRA does not require Elane Photography to either

15

include photographs of same-sex couples in its advertisements or display them in its studio.

However, if Elane Photography offers its services to the public, the NMHRA requires Elane

Photography to provide those same services to clients who are members of a protected class

under the NMHRA.

b. Observers are unlikely to believe that Elane Photography’s photographs reflect the

views of either its owners or its employees

{44} Elane Photography also argues that if it is compelled to photograph same-sex

weddings, observers will believe that it and its owners approve of same-sex marriage. The

United States Supreme Court incorporates the question of perceived endorsement into its

analysis in cases that involve compulsion to host or accommodate third-party speech. See,

e.g., Hurley, 515 U.S. at 577 (“Without deciding on the precise significance of the likelihood

of misattribution, it nonetheless becomes clear that in the context of an expressive parade

. . . the parade’s overall message is distilled from the individual presentations along the way,

and each unit’s expression is perceived by spectators as part of the whole.”). The Hurley

Court observed that admitting GLIB or any other organization into a parade would likely be

perceived as a message from the parade organizers “that [GLIB’s] message was worthy of

presentation and quite possibly of support as well.” Id. at 575. Therefore, the Court further

observed that the government’s forced inclusion of GLIB compromised the parade

organizer’s “right to autonomy over [its] message.” Id. at 576.

{45} In contrast to Pacific Gas and Tornillo, the United States Supreme Court has not

found compelled speech violations where the government has not explicitly required a

publisher to disseminate opposing points of view and where observers are unlikely to

mistake a person’s compliance with the law for endorsement of third-party messages, as in

Hurley. In Rumsfeld, the United States Supreme Court rejected not only the law schools’

argument that they were forced to speak the government’s message, but also their argument

that they were required to host the recruiters’ speech in such a way that violated compelled

speech principles. 547 U.S. at 64-65 (“[The law schools’] accommodation of a military

recruiter’s message is not compelled speech because the accommodation does not

sufficiently interfere with any message of the school.”). The law schools in Rumsfeld

worried that “treat[ing] military and nonmilitary recruiters alike . . . could be viewed as

sending the message that they see nothing wrong with the military’s policies [regarding gays

in the military], when they do.” Id. The Rumsfeld Court held that students “can appreciate

the difference between speech a school sponsors and speech the school permits because

legally required to do so,” and that the law schools were free to express their disagreement

with the military’s policy. Id. at 65.

{46} Rumsfeld drew on earlier cases that had considered whether observers would conflate

the speech of third parties with the opinions of the parties to the suit. In PruneYard

Shopping Center v. Robins, 447 U.S. 74, 76-78 (1980), a California shopping center was

sued under a California constitutional provision that required privately owned shopping

centers to allow individuals to engage in expressive activities on their premises. The

16

shopping center argued that the state could not constitutionally compel it “to participate in

the dissemination of an ideological message.” Id. at 86-87. The United States Supreme

Court rejected the argument, id. at 88, holding that because the shopping center was a

business establishment that was open to the public, “[t]he views expressed by members of

the public in passing out pamphlets or seeking signatures for a petition . . . will not likely be

identified with those of the owner.” Id. at 87. The Court also noted that the government had

not dictated any particular message or engaged in viewpoint discrimination, and that the

shopping center could disavow the third-party messages by posting its own signs. Id. “Such

signs, for example, could disclaim any sponsorship of the message and could explain that

the persons are communicating their own messages by virtue of state law.” Id.

{47} Elane Photography makes an argument very similar to one rejected by the Rumsfeld

Court: by treating customers alike, regardless of whether they are having same-sex or

opposite-sex weddings, Elane Photography is concerned that it will send the message that

it sees nothing wrong with same-sex marriage. Reasonable observers are unlikely to

interpret Elane Photography’s photographs as an endorsement of the photographed events.

It is well known to the public that wedding photographers are hired by paying customers and

that a photographer may not share the happy couple’s views on issues ranging from the

minor (the color scheme, the hors d’oeuvres) to the decidedly major (the religious service,

the choice of bride or groom). As in Rumsfeld and PruneYard, Elane Photography is free

to disavow, implicitly or explicitly, any messages that it believes the photographs convey.

We note that after Rumsfeld, many law schools published open letters expressing their

continued opposition to military policies and military recruitment on campus. See, e.g.,

Dean’s Letter Regarding Military Recruiting on Campus & Faculty Letter Regarding

Military Recruitment, Columbia Law School,

http://web.law.columbia.edu/careers/military-recruiting-on-campus (last visited Aug. 9,

2013); Military Recruitment Policy, University of Dayton School of Law,

http://www.udayton.edu/law/career_services/military_recruitment_policy.php (last visited

Aug. 9, 2013); Employer Recruiting Policies and Guidelines, Harvard Law School,

http://www.law.harvard.edu/current/careers/ocs/employers/recruiting-policies-

employers/index.html#Non-Discrimination (last visited Aug. 9, 2013). Elane Photography

and its owners likewise retain their First Amendment rights to express their religious and

political beliefs. They may, for example, post a disclaimer on their website or in their studio

advertising that they oppose same-sex marriage but that they comply with applicable

antidiscrimination laws.

c. Elane Photography’s allocation of its work time does not raise First Amendment

concerns

{48} Elane Photography next argues that when its employees spend time taking and

editing photographs of same-sex weddings, they have less time to spend doing their

preferred work of photographing opposite-sex weddings. Therefore, by Elane Photography’s

reasoning, the state has interfered with Elane Photography’s message, just as it did in Pacific

Gas and Tornillo. In Tornillo, the newspaper had limited space to print its stories, and

17

printing replies by politicians took up space in which the newspaper could have published

other material. 418 U.S. at 256-57. Similarly, the utility in Pacific Gas was required to

share the space inside its billing envelopes; when a third party used the space, the utility

could not distribute its own newsletter without paying additional postage. 475 U.S. at 5-6

(plurality opinion). The instant case is different because Elane Photography does not

produce a publication whose limited space has been taken over by the government.

{49} Instead, Elane Photography’s complaint is based on its staff’s limited time. Elane

Photography argues that if it accepts same-sex couples as clients, its employees must “spend

a day shooting pictures and three to four weeks selecting, editing, and arranging images” of

the clients’ weddings, when they would prefer to spend this time working on images of

heterosexual weddings. Therefore, it argues, the NMHRA interferes with Elane

Photography’s own speech.

{50} We disagree because the allocation of work time is a matter of personal preference,

not compelled speech, and it is not constitutionally protected. See Heart of Atlanta Motel,

Inc. v. United States, 379 U.S. 241, 261 (1964) (rejecting Thirteenth Amendment challenge

to law requiring motel to serve African-American guests). By their nature, laws prohibiting

discrimination in public accommodations require businesses and their employees to spend

time and energy serving customers whom they might prefer not to serve. See Hurley, 515

U.S. at 578 (describing common law public accommodation rules as guaranteeing that

individuals “will not be turned away merely on the proprietor’s exercise of personal

preference”). These laws apply even when the businesses provide skillful or physically

intimate services. See Bragdon v. Abbott, 524 U.S. 624, 628-29 (1998) (applying public

accommodations provisions of the Americans with Disabilities Act to dental practice). This

is the purpose of antidiscrimination laws: they force businesses to treat customers alike,

regardless of their race, religion, or other protected status. These laws are necessary

precisely because some businesses would otherwise refuse to work with certain customers

whom the laws protect.

{51} Antidiscrimination laws have been consistently upheld as constitutional. See, e.g.,

Hurley, 515 U.S. at 572 (“[Public accommodations laws] do not, as a general matter, violate

the First or Fourteenth Amendments.”); Heart of Atlanta Motel, 379 U.S. at 242-44, 258, 261

(sustaining Title II of the Civil Rights Act of 1964 against challenges based on the

Commerce Clause and the Fifth and Thirteenth Amendments). Elane Photography’s desire

to work with heterosexual rather than homosexual couples does not give it license to violate

the NMHRA.

3. There is no exemption from antidiscrimination laws for creative or expressive

professions

{52} There are no cases from either New Mexico jurisprudence or that of the United States

Supreme Court that would compel a conclusion that the NMHRA violates Elane

Photography’s freedom of speech because it is engaged in a creative and expressive

18

profession. We decline to draw the line between “creative” or “expressive” professions and

all others. While individuals in such professions undoubtedly engage in speech, and

sometimes even create speech for others as part of their services, there is no precedent to

suggest that First Amendment protections allow such individuals or businesses to violate

antidiscrimination laws. The wedding industry in particular employs a variety of

professionals who offer their services to the public and whose work involves significant

skills and creativity. For example, a flower shop is not intuitively “expressive,” but florists

use artistic skills and training to design and construct floral displays. Bakeries also offer

services for hire, and wedding cakes are famously intricate and artistic. Courts cannot be

in the business of deciding which businesses are sufficiently artistic to warrant exemptions

from antidiscrimination laws. These suggestions are not idle hypotheticals: we take judicial

notice of a variety of situations in which florists, bakeries, and other wedding vendors have

refused to serve same-sex couples. See, e.g., Lee Moran, Baker refuses to make wedding

cake for lesbian couple, N.Y. Daily News (Feb. 4, 2013),

http://www.nydailynews.com/news/national/baker-refuses-wedding-cake-lesbian-

couple-article-1.1254776; Annette Cary, Arlene’s Flowers in Richland sued by gay couple,

T r i - C i t y H e r a l d ( A p r . 1 8 , 2 0 1 3 ) ,

http://www.tri-cityherald.com/2013/04/18/2361691/arlenes-flowers-in-richland-sued.html

(quoting a florist as objecting to “using her time and artistic talent to support an event . . .

that she believes is wrong”) (emphasis added); see also Cervelli v. Aloha Bed & Breakfast,

Civ. No. 11-1-3103-12 ECN, Order (Haw. Circ. Court 1st Cir. Apr. 15, 2013)

www.lambdalegal.org/sites/default/files/2013-04-15_-_cervelli_order.pdf (finding that a bed

and breakfast violated Hawaii’s public accommodation law when it refused service to a

same-sex couple and granting partial summary judgment for declaratory and injunctive

relief).

{53} We are persuaded by cases suggesting that the First Amendment does not exempt

creative or expressive businesses from antidiscrimination laws. In Hishon v. King &

Spalding, 467 U.S. 69, 71-73 (1984), the United States Supreme Court reversed the dismissal

of a Title VII employment discrimination complaint against the law firm of King &

Spalding. In doing so, the Court rejected the firm’s argument that by applying

antidiscrimination laws to the firm’s selection of its partners, the government “would

infringe [First Amendment] constitutional rights of expression or association.” Id. at 78.

The Court held that “[i]nvidious private discrimination may be characterized as a form of

exercising freedom of association protected by the First Amendment, but it has never been

accorded affirmative constitutional protections.” Id. (alteration in original) (internal

quotation marks and citation omitted). Legal work unquestionably involves creative and

expressive skill and effort, but antidiscrimination laws still govern how a law firm runs its

business.

{54} Elane Photography attempts to distinguish King & Spalding by arguing that the type

of compelled-speech claim Elane Photography advances should apply only to public

accommodations law because such an exemption “would protect a firm’s decision not to

advocate an argument that its partners cannot in good conscience advance.” However, this

19

decision would already be protected under New Mexico law. The NMHRA does not

prohibit a law firm, even one that is a public accommodation, from turning away clients with

whose views the firm disagrees or with whom it simply does not wish to work. See § 28-1-

7(F) (prohibited grounds do not include ideology or personal dislike). What the NMHRA

forbids, and what Elane Photography’s proposed exception would allow, is for a law firm

to turn away a client because the firm finds the client offensive on the basis of a protected

classification. Accepting Elane Photography’s argument would exempt from

antidiscrimination laws any business that provided a creative or expressive service. Such

an exemption would not be limited to religious objections or to sexual orientation

discrimination; it would allow any business in a creative or expressive field to refuse service

on any protected basis, including race, national origin, religion, sex, or disability.

{55} Elane Photography also suggests that enforcing the NMHRA against it would mean

that an African-American photographer could not legally refuse to photograph a Ku Klux

Klan rally. This hypothetical suffers from the reality that political views and political group

membership, including membership in the Klan, are not protected categories under the

NMHRA. See § 28-1-7(F) (prohibiting public accommodation discrimination based on

“race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity,

spousal affiliation or physical or mental handicap”). Therefore, an African-American could

decline to photograph a Ku Klux Klan rally. However, the point is well-taken when the roles

in the hypothetical are reversed—a Ku Klux Klan member who operates a photography

business as a public accommodation would be compelled to photograph an African-

American under the NMHRA. This result is required by the NMHRA, which seeks to

promote equal rights and access to public accommodations by prohibiting discrimination

based on certain specified protected classifications.

{56} However, adoption of Elane Photography’s argument would allow a photographer

who was a Klan member to refuse to photograph an African-American customer’s wedding,

graduation, newborn child, or other event if the photographer felt that the photographs would

cast African-Americans in a positive light or be interpreted as the photographer’s

endorsement of African-Americans. A holding that the First Amendment mandates an

exception to public accommodations laws for commercial photographers would license

commercial photographers to freely discriminate against any protected class on the basis that

the photographer was only exercising his or her right not to express a viewpoint with which

he or she disagrees. Such a holding would undermine all of the protections provided by

antidiscrimination laws.

{57} In short, we conclude that the NMHRA’s prohibition on sexual-orientation

discrimination does not violate Elane Photography’s First Amendment right to refrain from

speaking. The government has not required Elane Photography to promote the government’s

message, nor has the government required Elane Photography to facilitate third parties’

messages, except to the extent that Elane Photography already facilitates third parties’

messages, for hire, as part of the services that it offers as a for-profit public accommodation.

Even if the services it offers are creative or expressive, Elane Photography must offer its

20

services to customers without regard for the customers’ race, sex, sexual orientation, or other

protected classification.

B. THE NMHRA DOES NOT VIOLATE ELANE PHOTOGRAPHY’S FIRST

AMENDMENT FREE EXERCISE RIGHTS

{58} Elane Photography argues that enforcement of the NMHRA against it for refusing

to photograph Willock’s wedding violates its First Amendment right to freely exercise its

religion. See U.S. Const. amend. I (Congress shall make no law prohibiting the free exercise

of religion).

{59} It is an open question whether Elane Photography, which is a limited liability

company rather than a natural person, has First Amendment free exercise rights. Several

federal courts have recently addressed this question with differing outcomes. Compare, e.g.,

Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs., slip

op. at 11, ___ F.3d ___, ___ (3d Cir. July 26, 2013, No. 13-1144) (“[W]e conclude that

for-profit, secular corporations cannot engage in religious exercise . . . .”), with Grote v.

Sebelius, 708 F.3d 850, 854 (7th Cir. 2013) (“[T]he [plaintiffs’] use of the corporate form

is not dispositive of the [free exercise] claim.”). However, it is not necessary for this Court

to address whether Elane Photography has a constitutionally protected right to exercise its

religion. Assuming that Elane Photography has such rights, they are not offended by

enforcement of the NMHRA.

{60} Under established law, “the right of free exercise does not relieve an individual of

the obligation to comply with a valid and neutral law of general applicability on the ground

that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”

Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (internal

quotation marks and citation omitted).3 In order to state a valid First Amendment free

exercise claim, a party must show either (a) that the law in question is not a “neutral law of

general applicability,” id. (internal quotation marks and citation omitted) or (b) that the

challenge implicates both the Free Exercise Clause and an independent constitutional

protection, id. at 881, or possibly (c) that the law operates “in a context that len[ds] itself to

individualized government assessment of the reasons for the relevant conduct.” Id. at 884.

Elane Photography does not claim that the individualized assessment situation is applicable

to the present case. We address its claims under the other two categories below.

3

Congress attempted to overrule Smith by passing the Religious Freedom Restoration

Act of 1993 (USRFRA), 42 U.S.C. §§ 2000bb (2006). However, the application of the

USRFRA to state and local laws was held unconstitutional in City of Boerne v. Flores, 521

U.S. 507, 511, 519 (1997). The Smith standard continues to be good law for evaluating

federal free exercise challenges to state actions. See Christian Legal Soc’y, ___ U.S. at ___

n.24, ___ n.27, 130 S. Ct. at 2993 n.24, 2995 n.27 (applying Smith standard).

21

1. The NMHRA is a neutral law of general applicability

{61} The United States Supreme Court elaborated on the rule concerning “law that is

neutral and of general applicability” in Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 531, 546 (1993). A law is not neutral “if [its] object . . . is to infringe

upon or restrict practices because of their religious motivation.” Id. at 533. It is not

generally applicable if it “impose[s] burdens only on conduct motivated by religious belief”

while permitting exceptions for secular conduct or for favored religions. Id. at 543. These

inquiries are related, id. at 531; the Court observed that improper intent could be inferred if

the law was a “‘religious gerrymander’” that burdened religion but exempted similar secular

activity. Id. at 534-35. If a law is neither neutral nor generally applicable, it “must be

justified by a compelling governmental interest and must be narrowly tailored to

advance that interest.” Id. at 531-32; see also id. at 546 (“The compelling interest standard

that we apply once a law fails to meet the Smith requirements is not water[ed] . . . down but

really means what it says.” (internal quotation marks and citation omitted)).

{62} In Lukumi Babalu Aye, the city of Hialeah had passed several ordinances that

prohibited religious sacrifice of animals but exempted secular slaughterhouses, kosher

slaughterhouses, hunting, fishing, euthanasia of unwanted animals, and extermination of

pests. Id. at 526-28, 536, 543-44. The Court held that this was a “religious gerrymander,”

id. at 535, the result of which was “that few if any killings of animals [were] prohibited other

than Santeria sacrifice,” id. at 536. The Court concluded that “[t]he ordinances had as their

object the suppression of religion” and were therefore nonneutral. Id. at 542. The Court

then examined whether the ordinances were generally applicable and whether the

government was selectively burdening only religiously motivated conduct. Id. at 542-43.

The Court did not precisely define the standard for assessing general applicability, but it did

observe that the Hialeah ordinances were grossly under-inclusive with respect to the laws’

stated goals, id. at 543-45, and it concluded that the laws burdened “only . . . conduct

motivated by religious belief.” Id. at 545. The Court applied strict scrutiny to the

ordinances and found them unconstitutional. Id. at 546-47.

{63} Elane Photography argues that the NMHRA is not generally applicable and that this

Court therefore should apply strict scrutiny to the application of the NMHRA to Elane

Photography. Elane Photography identifies several exemptions from the antidiscrimination

provisions of the NMHRA and argues that these exemptions make it not generally

applicable. Specifically, Elane Photography points to Section 28-1-9(A)(1), which exempts

sales or rentals of single-family homes if the owner does not own more than three houses,4

and Section 28-1-9(D), which exempts owners who live in small multi-family dwellings and

rent out the other units. Elane Photography argues that these exemptions, like those in

4

The owner also may not engage in discriminatory advertising. Section 28-1-9(A).

In addition, if the seller was not the most recent occupant of the house, he or she is exempt

from the NMHRA for only one sale per twenty-four month period. Section 28-1-9(A)(2).

22

Lukumi Babalu Aye, “impermissibly prefer the secular to the religious.”

{64} This is a misreading of Section 28-1-9. Unlike the exemptions in Lukumi Babalu

Aye, the exemptions in Section 28-1-9(A) and (D) apply equally to religious and secular

conduct. Neither subsection discusses motivation; homeowners who meet the criteria of

Section 28-1-9(A) and (D) are permitted to discriminate regardless of whether they do so on

religious or nonreligious grounds. Therefore, the NMHRA does not target only religiously

motivated discrimination, and these exemptions do not prevent the NMHRA from being

generally applicable. These exemptions also do not indicate any animus toward religion by

the Legislature that might render the law nonneutral; similar exemptions commonly appear

in housing discrimination laws, including the federal Fair Housing Act. See 42 U.S.C. §

3603(b)(1) & (2) (2012) (exempting from compliance “any single-family house sold or

rented by an owner,” provided such “owner does not own more than three such . . . houses”

and subject to additional limitations, and also exempting “rooms or units in dwellings

containing living quarters occupied or intended to be occupied by no more than four families

living independently of each other, if the owner actually maintains and occupies one of such

living quarters as his [or her] residence”).

{65} Elane Photography also argues that the exemptions to the NMHRA for religious

organizations undercut the purpose of the statute. In particular, Elane Photography

highlights Section 28-1-9(B) and (C), which in its reading permits religious organizations

to “decline same-sex couples as customers.”

{66} Once again, Elane Photography’s interpretation rests on a distorted reading of the

statute. Section 28-1-9(B) allows religious organizations to “limit[] admission to or giv[e]

preference to persons of the same religion or denomination or [to make] selections of buyers,

lessees or tenants” that promote the organization’s religious principles. In the context of

“buyers, lessees or tenants,” “buyers” clearly refers to purchasers of real estate rather than

retail customers. Id. Subsection (C) exempts religious organizations from provisions of the

NMHRA governing sexual orientation and gender identity, but only regarding “employment

or renting.” If a religious organization sold goods or services to the general public, neither

subsection would allow the organization to turn away same-sex couples while catering to

opposite-sex couples of all faiths. Subsection (B) permits religious organizations to serve

only or primarily people of their own faith, as well as to discriminate in certain limited real

estate transactions; Subsection (C) applies only to employment and, again, to real estate.

{67} In other words, neither of the religious exemptions in Section 28-1-9 would permit

a religious organization to take the actions that Elane Photography did in this case.

Furthermore, these exemptions do not prevent the NMHRA from being generally applicable.

Exemptions for religious organizations are common in a wide variety of laws, and they

reflect the attempts of the Legislature to respect free exercise rights by reducing legal

burdens on religion. See, e.g., Hobbie v. Unemp’t Appeals Comm’n of Fla., 480 U.S. 136,

144-45 (1987) (observing that the United States Supreme Court “has long recognized that

the government may (and sometimes must) accommodate religious practices” and listing

23

examples). Such exemptions are generally permissible, see Corp. of the Presiding Bishop

of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 329-30 (1987)

(upholding religious exemption to Title VII of the Civil Rights Act of 1964 against an

Establishment Clause challenge), and in some situations they may be constitutionally

mandated, see Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, ___ U.S. ___,

___, 132 S. Ct. 694, 705-06 (2012) (holding that the First Amendment precludes the

application of employment discrimination laws to disputes between religious organizations

and their ministers).

{68} The exemptions in the NMHRA are ordinary exemptions for religious organizations

and for certain limited employment and real-estate transactions. The exemptions do not

prefer secular conduct over religious conduct or evince any hostility toward religion. We

hold that the NMHRA is a neutral law of general applicability, and as such it does not offend

the Free Exercise Clause of the First Amendment.

2. Elane Photography has not adequately briefed its hybrid rights claim

{69} In Smith, the United States Supreme Court left open the possibility that a neutral law

of general applicability could nevertheless be unconstitutional if the law infringed both free

exercise rights and an independent constitutional protection. 494 U.S. at 881. The Court

recognized that in pre-Smith cases, it had sometimes applied more rigorous scrutiny to

neutral, generally applicable laws. Id. The Court distinguished those cases by characterizing

them not as simple free exercise cases, but as “hybrid situation[s],” id. at 882, in which the

free exercise claims were raised “in conjunction with other constitutional protections, such

as freedom of speech and of the press.” Id. at 881. Elane Photography mentions that

because it raised both a free exercise claim and a compelled-speech claim, it has made a

hybrid-rights claim under which the NMHRA should receive strict scrutiny.

{70} This Court requires that the parties adequately brief all appellate issues to include an

argument, the standard of review, and citations to authorities for each issue presented. In re

Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (“[T]o present an

issue on appeal for review, an appellant must submit argument and authority as required by

rule.” (emphasis omitted)). “We will not review unclear arguments, or guess at what [a

party’s] arguments might be.” Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15,

137 N.M. 339, 110 P.3d 1076. To rule on an inadequately briefed issue, this Court would

have to develop the arguments itself, effectively performing the parties’ work for them. See

State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254 (“We remind counsel

that we are not required to do their research . . . .”). This creates a strain on judicial

resources and a substantial risk of error. It is of no benefit either to the parties or to future

litigants for this Court to promulgate case law based on our own speculation rather than the

parties’ carefully considered arguments.

{71} Elane Photography devotes a single three-sentence paragraph to its hybrid-rights

claim, stating that a hybrid claim exists because it has raised a compelled-speech claim and

24

a free exercise claim under the NMRFRA. However, as discussed in this opinion, neither

of these claims is independently viable, and Elane Photography offers no analysis to explain

why the two claims together should be greater than the sum of their parts. Elane

Photography cites two cases, Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004), and

Health Services Division, Health & Environment Dep’t v. Temple Baptist Church, 1991-

NMCA-055, 112 N.M. 262, 814 P.2d 130, but provides no explanation of how or why we

should apply these precedents to the facts of this case. As a matter of New Mexico law,

Elane Photography’s briefing of its hybrid-rights claim is inadequate to permit us to review

the issue. For this reason, we do not consider its hybrid-rights argument.

III. ENFORCEMENT OF THE NMHRA DOES NOT VIOLATE THE NMRFRA

BECAUSE THE NMRFRA IS NOT APPLICABLE IN A SUIT BETWEEN

PRIVATE PARTIES

{72} Finally, Elane Photography argues that the Commission’s enforcement of the

NMHRA against it violates the New Mexico Religious Freedom Restoration Act. The

NMRFRA provides:

A government agency shall not restrict a person’s free exercise of

religion unless:

A. the restriction is in the form of a rule of general applicability

and does not directly discriminate against religion or among religions; and

B. the application of the restriction to the person is essential to

further a compelling governmental interest and is the least restrictive means

of furthering that compelling governmental interest.

Section 28-22-3. “Free exercise of religion” is defined as “an act or a refusal to act that is

substantially motivated by religious belief.” Section 28-22-2(A).

{73} Willock argues, and the Court of Appeals held, that the NMRFRA did not protect

Elane Photography’s refusal to photograph Willock’s wedding, even though the refusal was

religiously motivated, because the NMRFRA “was not meant to apply in suits between

private litigants.” Elane Photography, 2012-NMCA-086, ¶ 46. There is no other case law

on this point in New Mexico; the Court of Appeals relied on federal cases interpreting the

federal Religious Freedom Restoration Act. Id. ¶¶ 46-47.

{74} The NMRFRA states that “[a] person whose free exercise of religion has been

restricted by a violation of the New Mexico Religious Freedom Restoration Act may assert

that violation as a claim or defense in a judicial proceeding and obtain appropriate relief

against a government agency.” Section 28-22-4(A) (emphasis added). Elane Photography

argues that the phrase “against a government agency” modifies “appropriate relief,” rather

than “a judicial proceeding.” In other words, Elane Photography argues that although the

25

relief available is limited, the NMRFRA can be invoked even when the government is not

a party.

{75} However, the statute is violated only if a “government agency” restricts a person’s

free exercise of religion. Section 28-22-3. A “government agency” includes “the state or

any of its political subdivisions, institutions, departments, agencies, commissions,

committees, boards, councils, bureaus or authorities.” Section 28-22-2(B). The list of

government agencies does not include the Legislature or the courts. It could be expected that

the Legislature would have included itself and the courts in Section 28-22-2(B) if it meant

the NMRFRA to apply in common-law disputes or private enforcement actions. Instead, the

examples of government agencies are exclusively administrative or executive entities.

{76} Moreover, the structure of the NMRFRA as a whole suggests that the Legislature

contemplated that the statute would apply only to legal actions in which the government was

a party. The only relief authorized by the statute is “injunctive or declaratory relief against

a government agency,” § 28-22-4(A)(1), or “damages pursuant to the Tort Claims Act” with

attorneys’ fees and costs, § 28-22-4(A)(2). Nowhere does the NMRFRA authorize damages

or injunctive relief against a non-governmental party.

{77} Elane Photography argues that because Willock’s suit was adjudicated by the New

Mexico Human Rights Commission, which is presumably a “government agency” for

purposes of Section 28-22-2(B), the Commission’s decision against it qualifies as a

restriction of its free exercise of religion. However, Elane Photography appealed the

Commission’s determination to a New Mexico district court for a trial de novo pursuant to

Section 28-1-13(A). The instant appeal concerns the district court’s grant of summary

judgment for Willock; the Commission is not a party to this case, and its order no longer has

any legal effect. See § 39-3-1 (stating that appeals to the district court for trials de novo

“shall be tried anew . . . as if no trial had been had below”). Willock argues, and we agree,

that the Commission acted merely as an administrative tribunal to decide the dispute between

Elane Photography and herself. The government’s adjudication of disputes between private

parties does not constitute government restriction of a party’s free exercise rights for

purposes of the NMRFRA.

{78} For the reasons stated above, we hold that as a matter of New Mexico law, the New

Mexico Religious Freedom Restoration Act is inapplicable to disputes in which a

government agency is not a party.

CONCLUSION

{79} Elane Photography’s refusal to serve Vanessa Willock violated the New Mexico

Human Rights Act, which prohibits a public accommodation from refusing to offer its

services to a person based on that person’s sexual orientation. Enforcing the NMHRA

against Elane Photography does not violate the Free Speech or the Free Exercise clause of

the First Amendment or the NMRFRA. For these reasons, we affirm the grant of summary

26

judgment in Willock’s favor.

{80} IT IS SO ORDERED.

____________________________________

EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________

PETRA JIMENEZ MAES, Chief Justice

____________________________________

CHARLES W. DANIELS, Justice

____________________________________

BARBARA J. VIGIL, Justice

RICHARD C. BOSSON, Justice, specially concurring

BOSSON, Justice, specially concurring.

{81} In 1943 during the darkest days of World War II, the State of West Virginia required

students to salute the American flag and decreed that refusal to salute would “be regarded

an Act of insubordination” which could lead to expulsion for the student and criminal action

against the parent. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 626-29 (1943).

Some students refused to salute, believing as Jehovah’s Witnesses “that the obligation

imposed by law of God is superior to that of laws enacted by temporal government.” Id. at

629. They looked for authority in the Bible, Book of Exodus, Chapter 20, verses 4 and 5:

“Thou shalt not make unto thee any graven image, or any likeness of anything that is in

heaven above, or that is in the earth beneath, or that is in the water under the earth: thou

shalt not bow down thyself to them, nor serve them.” Id. (internal quotation marks omitted).

Jehovah’s Witnesses considered “the flag is an ‘image’ within this command,” which they

were bound by God not to salute. Id.

{82} In a ringing endorsement of the First Amendment, the United States Supreme Court

struck down the West Virginia statute, noting the irony of the state’s position: “To sustain

the compulsory flag salute we are required to say that a Bill of Rights which guards the

individual’s right to speak his own mind, left it open to public authorities to compel him to

utter what is not in his mind.” Id. at 634. And again, “[i]f there is any fixed star in our

constitutional constellation, it is that no official, high or petty, can prescribe what shall be

orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to

confess by word or act their faith therein.” Id. at 642. In his concurrence, Justice Black had

this to add:

27

The Jehovah’s Witnesses, without any desire to show disrespect for either the

flag or the country, interpret the Bible as commanding, at the risk of God’s

displeasure, that they not go through the form of a pledge of allegiance to any

flag. The devoutness of their belief is evidenced by their willingness to

suffer persecution and punishment, rather than make the pledge.

Id. at 643 (Black, J., concurring). Considering the times, the Barnette opinion stands today

as an act of the utmost courage; it represents one of the Court’s finest moments.

{83} Jonathan and Elaine Huguenin see themselves in much the same position as the

students in Barnette. As devout, practicing Christians, they believe, as a matter of faith, that

certain commands of the Bible are not left open to secular interpretation; they are meant to

be obeyed. Among those commands, according to the Huguenins, is an injunction against

same-sex marriage. On the record before us, no one has questioned the Huguenin’s

devoutness or their sincerity; their religious convictions deserve our respect. In the words

of their legal counsel, the Huguenins “believed that creating photographs telling the story

of that event [a same-sex wedding] would express a message contrary to their sincerely held

beliefs, and that doing so would disobey God.” If honoring same-sex marriage would so

conflict with their fundamental religious tenets, no less than the Jehovah’s Witnesses in

Barnette, how then, they ask, can the State of New Mexico compel them to “disobey God”

in this case? How indeed?

{84} Twenty-four years later, during the zenith of the Civil Rights era, the Supreme Court

provided a partial answer. In Loving v. Virginia, the State of Virginia, like sixteen similarly

situated states with miscegenation laws, prohibited marriage between the white and black

races, making it a crime punishable by imprisonment. 388 U.S. 1, 4, 6 (1967). Such laws

arose as an incident of slavery and were common in Virginia and elsewhere since early

times. Id. at 6. The Lovings, an interracial couple, had been lawfully married elsewhere and

wanted to live openly as husband and wife in Virginia. Id. at 2-3. For their honesty, they

were prosecuted and convicted; their prison sentences were suspended on condition that they

leave Virginia and not return for 25 years. Id. at 3. The Virginia trial judge, in justifying

the convictions, drew strength from his view of the Bible:

“Almighty God created the races white, black, yellow, malay and red, and he

placed them on separate continents. And but for the interference with this

arrangement there would be no cause for such marriages. The fact that he

separated the races shows that he did not intend for the races to mix.”

Id. at 3. Whatever opinion one might have of the trial judge’s religious views, which

mirrored those of millions of Americans of the time, no one questioned his sincerity either

or his religious conviction. In affirming the Lovings’ convictions, Virginia’s highest court

observed the religious, cultural, historical and moral roots that justified miscegenation laws.

See id.

28

{85} The Supreme Court struck down Virginia’s miscegenation statute. Id. at 11-12.

Observing that “[t]he freedom to marry has long been recognized as one of the vital personal

rights essential in the orderly pursuit of happiness by free men,” the Court held categorically

that “[t]here can be no doubt that restricting the freedom to marry solely because of racial

classifications violates the central meaning of the Equal Protection Clause.” Id. at 12. State

laws, even those religiously inspired, may not discriminate invidiously on the basis of race.

{86} There is a lesson here. In a constitutional form of government, personal, religious,

and moral beliefs, when acted upon to the detriment of someone else’s rights, have

constitutional limits. One is free to believe, think and speak as one’s conscience, or God,

dictates. But when actions, even religiously inspired, conflict with other constitutionally

protected rights—in Loving the right to be free from invidious racial discrimination—then

there must be some accommodation. Recall that Barnette was all about the students; their

exercise of First Amendment rights did not infringe upon anyone else. The Huguenins

cannot make that claim. Their refusal to do business with the same-sex couple in this case,

no matter how religiously inspired, was an affront to the legal rights of that couple, the right

granted them under New Mexico law to engage in the commercial marketplace free from

discrimination.

{87} But of course, the Huguenins are not trying to prohibit anyone from marrying. They

only want to be left alone to conduct their photography business in a manner consistent with

their moral convictions. In their view, they seek only the freedom not to endorse someone

else’s lifestyle. Loving, therefore, does not completely answer the question the Huguenins

pose. To complete the circle, we turn to our third case.

{88} Heart of Atlanta Motel, Inc. v. United States, upheld the federal Civil Rights Act of

1964, a milestone enactment which, among other achievements, declared invidious

discrimination unlawful, not just by the state but by private citizens, when providing goods

and services in the sphere of public accommodations. 379 U.S. 241, 246, 261-62 (1964).

The Act declared: “‘All persons shall be entitled to the full and equal enjoyment of the

goods, services, facilities, privileges, advantages, and accommodations of any place of

public accommodation, as defined in this section, without discrimination or segregation on

the ground of race, color, religion or national origin.’” Id. at 247. A watershed achievement,

the Act vindicated nearly a century of frustrated effort to fulfill the promise of the Fourteenth

Amendment, to end not only slavery but all of its traces as well. See id. at 244-46. And

ending second-class citizenship, being denied a seat in a restaurant or a room in an

inn—purely on the basis of one’s race or religion—was a goal that drove the passage of the

Act. See id. at 252-53.

{89} By the time of the success of the Civil Rights Act of 1964, many states had already

passed their own public accommodation laws. See id. at 358-59 (noting that thirty-two states

already had public accommodation laws); see also Lisa Gabrielle & Annette K. Sanderson,

Discrimination in Access to Public Places: A Survey of State and Federal Public

Accommodations Laws, 7 N.Y.U. Rev. L. & Soc. Change 215, 240 (1978) (recognizing that

29

“the existence of numerous state laws facilitated Congress’ acceptance of Title II” of the

Civil Rights Act). Today, many states have Human Rights Acts similar to New Mexico’s.

See, e.g., 775 Ill. Comp. Stat. Ann. 5/1-102(A) (2010); Iowa Code Ann. § 216.7 (2007); Md.

Code Ann., State Government § 20-304 (2009); Nev. Rev. Stat. Ann. § 651.070 (2011).

Public accommodations have been expanded to preclude invidious discrimination in most

every public business, including the Huguenin’s photography business. Prohibited

classifications have been enlarged from the historical classes—race, religion, gender,

national origin—to include sexual orientation. See, e.g., Douglas NeJaime, Marriage

Inequality: Same-Sex Relationships, Religious Exemptions, and the Production of Sexual

Orientation Discrimination, 100 Cal. L. Rev. 1169, 1190 (2012) (“Twenty-one states and

the District of Columbia cover sexual orientation in their antidiscrimination laws governing

employment, housing, and public accommodations.”). The New Mexico Legislature has

made it clear that to discriminate in business on the basis of sexual orientation is just as

intolerable as discrimination directed toward race, color, national origin or religion. See

NMSA 1978, § 28-1-7(F) (2004). The Huguenins today can no more turn away customers

on the basis of sexual orientation—photographing a same-sex marriage ceremony—than

they could refuse to photograph African-Americans or Muslims.

{90} All of which, I assume, is little comfort to the Huguenins, who now are compelled

by law to compromise the very religious beliefs that inspire their lives. Though the rule of

law requires it, the result is sobering. It will no doubt leave a tangible mark on the

Huguenins and others of similar views.

{91} On a larger scale, this case provokes reflection on what this nation is all about, its

promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case

teaches that at some point in our lives all of us must compromise, if only a little, to

accommodate the contrasting values of others. A multicultural, pluralistic society, one of

our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe,

as they wish; they may pray to the God of their choice and follow those commandments in

their personal lives wherever they lead. The Constitution protects the Huguenins in that

respect and much more. But there is a price, one that we all have to pay somewhere in our

civic life.

{92} 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. I therefore concur.

____________________________________

RICHARD C. BOSSON, Justice

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