New Mexico photographer loses third round of gay discrimination case, but attorneys vow fight isn't over

Published: Thursday, June 7 2012 3:37 p.m. MDT

Shelly Bailes, left, hugs her wife Ellen Pontac outside of the Phillip Burton Federal Building in San Francisco, Wednesday, Aug. 4, 2010. A federal judge overturned California's same-sex marriage ban Wednesday in a landmark case that could eventually land before the U.S. Supreme Court to decide if gays have a constitutional right to marry in America, according to a person close to the case. (AP Photo/Eric Risberg)

Eric Risberg, AP

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A New Mexico photo studio fined for refusing to shoot a lesbian couple's commitment ceremony has lost its third round in a legal battle that has ignited the ire of religious-freedom advocates.

The Albuquerque Journal reported that the New Mexico Court of Appeals ruled that Elane Photography had violated that state's Human Rights Act, and the justices rejected the Albuquerque studio’s argument that taking the job would cause it to disobey its owners' Christian beliefs.

The court upheld the nearly $7,000 fine in finding that the studio is a “public accommodation” — an establishment that provides services to the public — that, under state law, may not refuse its services on the basis of race, religion, color, national origin, ancestry, sex or sexual orientation, gender identity or physical or mental handicap.

Attorneys for the couple successfully argued that the state Human Rights Act extends protection to goods and services as well as facilities and that it reaches “commercial activity beyond the 19th-century paradigm of inn, restaurant or public carrier.”

The New Mexico Human Rights Commission and the district court had ruled against Elane Photography in 2008 and 2009. But the studio's attorneys at the Alliance Defense Fund said it will appeal this latest decision to the New Mexico Supreme Court.

“Americans in the marketplace should not be subjected to legal attacks for simply abiding by their beliefs,” said ADF senior counsel Jordan Lorence. “Should the government force a videographer who is an animal-rights activist to create a video promoting hunting and taxidermy? Of course not, and neither should the government force this photographer to promote a message that violates her conscience.”

The appellate court rejected those arguments. When Elane Photography hypothetically asked the court if a black photographer could be accused of racial discrimination for refusing to shoot a Ku Klux Klan rally, the judges found that groups such as the KKK are not protected classes, while sexual orientation is.

The judges also ruled that the state's Human Rights Act only required the studio to photograph a ceremony, which did not “infringe upon freedom of speech or compel unwanted expression.”

The ruling was released Thursday but didn't generate coverage or commentary until Tuesday.

Not much is being said about the case among gay-rights advocates, other than reporting that it happened.

But the Family Research Council and other conservative organizations are blasting the ruling as a violation of religious freedom akin to the Obama administration's health care mandate on contraceptives.

"Homosexual activists are absolutely determined to punish people who refuse to embrace and celebrate their lifestyle choices," said the FRC's Washington Update. "Isn't that what the Obama administration has done with its mandate on contraception and abortion pills? If the left can't crowd conservatives out of the marketplace, then it will enlist the courts or the White House to force them out — whether it's constitutional or not."

Meanwhile, Timothy Kinkaid of the Box Turtle Bulletin, a website of news, analysis and fact-checking of anti-gay rhetoric, sided with the photographer Elaine Huguenin and her small business.

"I think the law is unfair," Kincaid wrote of the New Mexico statute. "It should be amended to allow individuals or tiny businesses some autonomy without boards and courts dictating the minutiae of hurt feelings and obnoxious entitlement that each feels over the other. The cause of nondiscrimination would not be hindered by limiting such laws to employers with more than a few employees."

For more background on the case, read this Deseret News story by Sara Israelsen-Hartley.

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