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Religious liberty and gay marriage collide as New Mexico photographer loses case

Poll: 85% agree that photographer should have right to say no

Published: Thursday, Aug. 22 2013 11:05 p.m. MDT

A commercial photography business owned by opponents of same-sex marriage violated New Mexico's anti-discrimination law by refusing to take pictures of a gay couple's commitment ceremony, the state's highest court ruled unanimously Thursday.

Elaine Huguenin, who owns Elane Photography with her husband and is the business's principal photographer, refused to photograph the ceremony because it violated her religious beliefs.

The court held that "a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients" is bound by the New Mexico Human Rights Act "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," the court concluded, the photographer "violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races."

The court rejected arguments that the anti-discrimination law violated the photographer's right to free speech and the free exercise of religious beliefs.

Elane Photography is represented by the Alliance Defense Fund, a conservative nonprofit group focused on religious liberty. "Government-coerced expression is a feature of dictatorships that has no place in a free country," said senior counsel Jordan Lorence.

"The idea that free people can be 'compelled by law to compromise the very religious beliefs that inspire their lives' as the 'price of citizenship' is a chilling and unprecedented attack on freedom," Lorence said. "Americans are now on notice that the price of doing business is their freedom. We are considering our next steps, including asking the U.S. Supreme Court to right this wrong."

The case represents a new pressure point in the culture war over gay rights, gay marriage and the mainstreaming of gay culture as long-standing traditional religious beliefs come into direct conflict with new secular expectations. Gay and lesbian couples have been flocking to southern New Mexico to take advantage of a decision this week by county clerk Lynn Ellins to issue same-sex marriage licenses Wednesday after he said his review of state law allowed him to do so. By Thursday afternoon, more than 70 licenses had been issued.

The American Civil Liberties Union, which weighed in on the case in favor of the lesbian couple, had argued in amicus briefs that the photographer was not engaged in protected speech but rather commercial activity.

"A commercial business cannot solicit customers from the general public to buy its services as a photographer for hire and then claim that taking those photographs is a form of its own autonomous expressive activity," the ACLU argued on its website.

According to a recent Rasmussen poll, 85 percent of Americans support the right of the photographer to say no.

"Suppose a Christian wedding photographer has deeply held religious beliefs opposing same-sex marriage," the poll question asked. "If asked to work a same-sex wedding ceremony, should that wedding photographer have the right to say no?"

The court "rejected the idea that especially creative and expressive professionals (like photographers) should be exempted under the First Amendment while more mundane and generic services (like cake-baking) should not be," wrote the University of Minnesota Law School's Dale Carpenter after the decision.

Carpenter had co-authored an amicus brief on the case, which argued that the prosecution of the photographer amounted to coerced speech, and thus a First Amendment violation.

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