National Edition

Supreme Court turns deaf ear on New Mexico gay wedding photo case

Published: Monday, April 7 2014 9:30 p.m. MDT

In a conflict between a gay couple’s nondiscrimination rights under New Mexico law and a photographer's religious beliefs, the U.S. Supreme Court stepped aside on Monday, refusing to hear the case, at least for now.

At stake was the case of photographer Elaine Huguenin, who was fined $6,638 in New Mexico after she declined to photograph a same-sex commitment ceremony. Huguenin argued that wedding photography is storytelling, and that coerced “expressive speech” violated her First Amendment protections.

“Something that should never be beyond the pale in this country is free speech — no matter what the speech is, whether you agree with it or not,” said Austin Nimocks, senior counsel for the Alliance Defending Freedom, an Arizon-based religious liberty legal organization, which represented Huguenin in the case.

Noting that the Supreme Court has long upheld rights to engage in “the most vile and disgusting speech,” Nimocks argued that a court that upholds the right to anti-Semitic or racist speech would be oddly positioned if it allowed a state to coerce speech from an artist.

Gay rights proponents widely hailed the court’s decision not to hear the case, viewing it as a confirmation of New Mexico's antidiscrimination law. Huguenin's supporters, meanwhile, said that accommodations must be found in the political arena.

“You never know why the court grants or denies certiorari,” Nimock said. “What is clear is that it is not up to the people and legislators of New Mexico to remedy the law to be more tolerant toward speech protections."

Space for politics

Ed Whelan, president of the Ethics and Public Policy Center and a prominent traditional marriage advocate, called the court’s decision to not hear the case “disappointing but hardly surprising.” The court usually looks for some kind of conflict between lower courts, and is likely waiting for the conflict to distill, Whelan said, and will often stand back until the issues develop more fully.

The ADF is purely a legal defense fund, he said, and does not engage in politics, so once the courts wash their hands of it, the ADF's job is done.

And that’s just fine with Jonathan Rauch, a senior fellow at the Brookings Institution and a prominent gay rights advocate. The Supreme Court’s refusal to hear the case is significant, Rauch said, precisely because it allows breathing room for the states to work out these issues on their own.

“The big news is that the court is saying it is too early to respond to this issue with a hammer,” Rauch said. “The court is saying it’s premature to issue a constitutional standard on this for the next 50 to 100 years.”

Civil rights logic

Rauch differs from some gay rights supporters in that he hopes for a political accommodation that stops short of the kind of total victory that drives disagreement off the field.

But Evan Wolfson, president of Freedom to Marry, one of the driving forces in the gay marriage movement, sees the New Mexico dispute as a "distraction" promoted by gay marriage opponents who are losing the main battle and trying to muddy the water.

“Nobody believes that people should not have religious freedom,” Wolfson said. “The question is how do we best protect both civil liberties and religious freedom.”

In Wolfson’s view, there is an unbroken line running from the 1964 Civil Rights Act barring racial discrimination in public accommodations such as hotels or restaurants, the rise of gender equality laws in the 1970s, and now the move in states like New Mexico to extend the same protections to sexual orientation.

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