Jordan Lorence: Elane Photography plans appeal of negative ruling by New Mexico court
ADF Attorney Jordan Lorence writing at the Academic Freedom File: “Also, the District Court rejected the religious liberty claims under the federal and state constitutions. Again, the court diminishes the impact of the state’s actions against the photography company, with its statements that Elane Photography is merely being asked to photograph something for a fee. There is no sense that people can be asked by their customers to do something with their businesses that violate the business owners’ beliefs. A photographer who is a vegetarian might decline to create photos for the promotional materials of a meat packing plant. If New Mexico law made that an act of discrimination, the District Court opinion says that there is no First Amendment protection. That can’t be right, and that is why we will appeal this decision to the New Mexico Court of Appeals.”
One Comment
A retired conservative Texas lawyer, I wish I thought this appeal had any realistic chance of success, but, respectfully, I don’t.
A much closer case, in my view, apparently not cited in the New Mexico court’s opinion, which supports the plaintiffs, was the one that went against the California fertility doctor who declined, on religious, moral, or child’s-best-interest grounds, to help an unmarried lesbian conceive but referred her to a doctor without such scruples who would have done so and was upheld on appeal under a similar law. I thought that decision was wrong. I also thought that, because his expertise and objective was lasting heterosexual marriages, the case against EHarmony.com for refusing to create a similar business for homosexuals or lesbians, or to match people for affairs, should have favored EHarmony and was sorry that he settled and agreed to enter any such new and different line of business to do so.
Other federal and state statutory sexual discrimination laws that did not even mention “sexual orientation,” and case law under them, involve liability for refusal to rent hotel rooms, apartments, etc. to unmarried heterosexual or homosexual couples based upon similar beliefs, or any considerations of stability or lack of stability of such relationships, etc., and older state laws prohibiting such rentals tending to promote non-marital sexual activity, citing the expressed legislative purpose and legislative history of such modern federal and state laws. These still trouble me but the law now appears settled. .
I note, too, that this entire judicial proceeding is an appeal from an administrative agency finding and decision, and these are generally reviewed on appeal under the “substantial evidence” rule, meaning that they must be affirmed if any rational person could agree with the agency’s decision even though the court might have reached a different result on the same record.
The procedural posture and history, in which both sides moved for summary judgment as a matter of law, clearly indicates that both sides took the position that there was no genuine and material issue of fact to be tried by a jury or the court. This would appear to be correct, but, for all purposes in this litigation, it is no longer open to dispute.
It is equally clear that the defendants didn’t present substantial legal basis or authority for their objection to taking these pictures, or to the decisions in issue, before the agency or lower court, and you normally can’t change or add such legal horses in a higher court.
Whether the state recognizes or refuses to recognize “gay marriage” is irrelevant to the undisputed and undisputable essential fact, found by the administrative agency and the court below as a matter of law, that the photographer’s objection to taking the pictures was rooted in the sexual orientation of the two subjects, a protected class under the state law that created this legal cause of action.
Under the hotel and apartment cases based upon the legislative history of the sex discrimination provisions of federal anti-discrimination law, not to mention the explicit legislative history of those provisions, it would appear clear that this case would have turned out the same way if bought under federal law in any state, rather than the state law in question with its explicit ban on sexual-orientation discrimination not found in the federal law, because the objection to providing services generally available was the sex of one of the subjects. .
The photographer would likewise violate the state law in issue, not to mention existing federal law, if he or she refused to photograph a Christian, Jewish, Muslim, Kwanza, divorce party, or Darwin Day ceremony because of his or her religious, [or atheist] beliefs, or opinion of the religious beliefs of the subjects, under the religious discrimination prong of these laws.
Question: May a secular vegetarian, but not a Hindu, refuse to photograph a beef dinner or a Muslim or Jewish Kosher packing house under such non-discrimination laws?