Supreme Court to consider this week whether it will hear Elane Photography case

On Friday, March 21, the Supreme Court will consider whether it will hear Elane Photography v. Willock, a case involving a New Mexico public accommodations law that bars discrimination on the basis of sexual orientation. A photography business in the state violated the public accommodations law when it refused to photograph a same-sex couple’s commitment ceremony (before same-sex marriage was legal in the state.) The state supreme court ruled against the business when it challenged the application of that law to its business on First Amendment grounds.

Elane Photography argues that its business creates speech, and since they are opposed to same-sex marriage, photographing a same-sex commitment ceremony would force them to create speech with which they disagree. The business argues that it would have performed “other services” for gays and lesbians.

The New Mexico Supreme Court held that the business is only “compelled” to create speech favoring same-sex couples to the extent that they create speech and provide services for anyone else, as a photography business. And that court said the business badly misconstrued the issue:

Elane Photography has misunderstood this issue. It believes that because it is a photography business, it cannot be subject to public accommodation laws. The reality is that because it is a public accommodation, its provision of services can be regulated, even though those services include artistic and creative work. If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography’s choice of whom to photograph or not. The difference in the present case is that the photographs that are allegedly compelled by the NMHRA are photographs that Elane Photography produces for hire in the ordinary course of its business as a public accommodation. This determination has no relation to the artistic merit of photographs produced by Elane Photography. If Annie Leibovitz or Peter Lindbergh worked as public accommodations in New Mexico, they would be subject to the provisions of the [public accommodations law].

The state supreme court decision is apparently what prompted the anti-gay bill passed in Arizona, SB 1062. Governor Brewer vetoed the bill.

It takes four votes (out of nine Justices) to review a case on the merits.