Does the United States Constitution consider a series of wedding photographs to be the free speech equivalent of a ham sandwich?
That was Elaine Huguenin’s question.
In 2006, the Albuquerque, N.M., wedding photographer was sued by a lesbian couple for refusing for religious reasons to photograph their same-sex commitment ceremony. The couple said the refusal violated a state law barring discrimination based on sexual orientation.
The debate over whether conservative religious wedding vendors should be coerced into providing services for same-sex marriage ceremonies has been compared by gay rights advocates to the lunch counters of the Jim Crow South.
Just as African-Americans could not be refused service because of the color of their skin, these advocates say, lesbian, gay, bisexual, and transgender (LGBT) Americans should not be denied service because of whom they wish to marry.
But Ms. Huguenin’s lawyer and others argue that there is a difference between serving a ham sandwich at a lunch counter and producing a series of photographs telling the unique story of a couple’s wedding day.
Embedded in the legal debate is a basic question: Is wedding photography a form of art? And, if so, can a wedding photographer be compelled by the government to engage in artistic expression against her will?
The central issue in the Huguenin case wasn’t just whether the job would offend Huguenin’s religious belief that marriage is a God-ordained union exclusively between one man and one woman.
It was also whether enforcement of New Mexico’s antidiscrimination law could coerce her to use her creative talents to tell a story she didn’t wish to tell, argued Huguenin’s lawyer, Jordan Lorence of the conservative law group, Alliance Defending Freedom (ADF).
It is a free speech issue, he says, not an issue of discrimination.
“There is no authority under the First Amendment for the State of New Mexico to require everybody in the state to line up and stand on a soap box and say ‘I believe in same-sex marriage,’ ” Mr. Lorence said in an interview.
“You can’t compel people to say that,” he says.
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Lawyers with ADF have raised the same issue in three different cases. In addition to the New Mexico photographer, they represent a wedding cake designer in Colorado, and a florist in Washington State.
In all three cases, state judges ruled that the wedding vendors violated a state antidiscrimination law by refusing to provide their services for a same-sex wedding.
In all three cases, the judges gave the conservative religious wedding vendors an ultimatum – either serve same-sex weddings despite their religious objections or get out of the wedding vendor business altogether.
Lawyers for the wedding vendors argue there is a difference between a writer, a painter, a singer, or a photographer and a lunch counter waitress, a shoe salesman, or a gas station attendant. Members of the first group are engaged in expressive conduct and are entitled to make editorial decisions about what to say or even whether to say anything, these lawyers say, while members of the second group are engaged in selling a uniform product that is offered to all on an equal basis.
But courts in New Mexico, New York, Colorado, Oregon, and Washington State have all rejected similar First Amendment free speech arguments in wedding vendor cases. The cases are arising in the 22 states that have passed laws barring discrimination based on sexual orientation.
Huguenin’s case went all the way to the New Mexico Supreme Court, with several prominent First Amendment scholars filing a friend-of-the-court brief in support Huguenin. But the justices ruled unanimously against her.
“We decline to draw the line between ‘creative’ or ‘expressive’ professions and all others,” New Mexico Supreme Court Justice Edward Chavez wrote in his 2013 opinion.
He said he could find no existing legal precedent supporting the argument that the First Amendment protects people in creative professions against compelled speech in a way that would allow them to violate antidiscrimination laws.
“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,” Justice Chavez wrote.
But he added: “Courts cannot be in the business of deciding which businesses are sufficiently artistic to warrant exemptions from antidiscrimination laws.”
In a concurring opinion Justice Richard Bosson wrote: “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.”
He said such compromise is “the price of citizenship.”
Religious conservatives critical of the New Mexico high court decision say the same thing could be said of the LGBT community’s opposition to allowing religious exemptions that would accommodate traditional beliefs about marriage. Accommodating the “contrasting values of others” should be a two-way street, they say.
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In April, the Colorado Supreme Court declined to hear the appeal of the Denver-area wedding cake designer who lost his case. The action let stand a lower court ruling that the act of preparing and designing wedding cakes was not entitled to First Amendment protection.
In the case of the Washington State florist, a judge cited the New Mexico Supreme Court decision in Huguenin’s case as persuasive authority to rule against the florist.
Antidiscrimination laws by their nature require that people be treated equally, Benton County Superior Court Judge Alexander Ekstrom declared. He added: “They cannot be defeated by the claim that equal treatment requires communication or expression of a message with which the speaker disagrees.”
In effect the judge said that the requirement of equal treatment trumps any claim to the protections of the First Amendment.
Judge Ekstrom’s decision is being appealed to the Washington State Supreme Court, which is expected to hear the florist case this fall.
A group called International Christian Photographers has filed a friend-of-the-court brief in the Washington State case.
A lawyer for the group, David Dewhirst of Olympia, Wash., says in his brief that the state’s enforcement of its antidiscrimination law results in coerced speech. It amounts to a government attempt to control thought, he says.
“Compelled thought directly attacks First Amendment freedoms,” Mr. Dewhirst writes.
An antidiscrimination law requires business owners to serve all customers equally, but it may not compel business owners to create and disseminate particular ideological messages, Dewhirst says in his brief.
The state’s legal action against the Washington State florist wasn’t merely an attempt to uphold its antidiscrimination law, he says. It was also an attempt by the state to dragoon the florist’s creative talents into service of the state’s preferred policy position supporting same-sex marriage, Dewhirst says.
“Many artistic professionals … hold religious or ideological convictions that foreclose their ability to express affirmation of same-sex weddings,” the lawyer writes. “Yet the state forges ahead in its crusade to foster public adherence to an ideological viewpoint on same-sex marriage that many artists oppose. And hauntingly, it attempts to deputize those very dissenters to its cause.”
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Supporters of the free speech argument in wedding vendor cases cite a 1977 US Supreme Court precedent involving a New Hampshire couple, both members of the Jehovah’s Witnesses faith, who objected to displaying the state’s “Live Free or Die” motto on their automobile license plate.
“I refuse to be coerced by the state into advertising a slogan which I find morally, ethically, religiously, and politically abhorrent,” George Maynard told the court.
Mr. Maynard was arrested three times for obscuring the motto on his license plate. He even spent time in jail for the offense.
State officials argued that the motto helped promote proper appreciation of history, state pride, and individualism.
In ruling for the Maynards, the high court said the state’s claimed interest in the motto was not “ideologically neutral.” In other words, the state was using its power to advocate a position.
“Where the state’s interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual’s First Amendment right to avoid becoming the courier for such message,” then-Chief Justice Warren Burger wrote for the court.
In his brief to the Washington State Supreme Court, state Attorney General Bob Ferguson says the state is not seeking to compel the florist to arrange flowers in any particular way – or even to arrange flowers at all.
State law, he says, simply requires that if the florist sells flowers to the public that she do so on an equal basis.
The attorney general says free speech arguments made on behalf of the florist would permit any business to side-step the state’s antidiscrimination laws.
“Many businesses involve expression, but that does not give them a right to discriminate,” he says. “Orchestras, ballets, and theaters plainly engage in expression, but that doesn’t mean they can refuse to admit persons of certain races, religions, or sexual orientations.”
Referring to one’s profession as artistic is also beside the point, says Carmen Green in a friend-of-the-court brief in the Washington State case filed on behalf of the group, Americans United for Separation of Church and State.
“If the use of skill, creativity, or artistry were sufficient to transform customer service into protected speech, nearly any business could claim the right to discriminate,” she says.
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Part 1: How the push for gay rights is reshaping religious liberty in America
Part 2: A florist caught between faith and financial ruin
Part 3: Behind legal fight over religious liberty, a question of conscience
Part 4: In Mississippi gay rights battle, both sides feel they are losing
Part 5: Is wedding photography art? A wrinkle in religious liberty debate.
Part 6: For those on front lines of religious liberty battle, a very human cost
Part 7: A push to help gay couples find wedding joy – without rejection