Court Rules Against New Mexico Wedding Photographer for Same-Sex Discrimination

Court Rules Against New Mexico Wedding Photographer for Same-Sex Discrimination

Yesterday, wedding photographer Elaine Huguenin of Elane Photography, LLC was ruled against by the New Mexico Supreme Court stating that she cannot discriminate against same-sex couples. This is a direct result of Vanessa Willock of Albuquerque filling a complaint on December 20, 2006  against Elaine. After inquiring to Elaine about photography for her September 21, 2006 wedding day, Vanessa received an email response back for her same-sex wedding that she was not what she expected.

Vanessa's initial response email inquiring about her wedding day, she received the following email back from Elaine.

"Hello Vanessa,

As a company, we photograph traditional weddings, engagements, seniors, and several other things such as political photographs and singer's portfolios.

-Elaine-"

Unsure if Elaine was saying that she does not provide same-sex wedding photography, she sent a response back.

"Hi Elaine,

Thanks for your response below of September 21, 2006. I'm a bit confused, however, by the wording of your response. Are you saying that your company does not offer your photography services to same-sex couples?

Thanks, 
Vanessa"

Elaine later responded,

"Hello Vanessa,

Sorry if our last response was a confusing one. Yes, you are connect in saying we do not photograph same-sex weddings, but again, thanks for checking out our site! Have a great day.

-Elaine"

Elaine claimed to have denied the event due to her religious beliefs. But then, Vanessa had her then fiancée, Misti Collinsworth, contact Elaine and not mention it was a same-sex commitment ceremony.  She received a more than welcoming response back.

"Hello Misty,

Thanks so much for contacting us. I would definitely [sic] be willing to travel to Ruidoso for your wedding. I have attached some information that should be helpful as far as prices and packages. There is also another attachment concerning "print credits" - it explains what online proofing is, because it's something that is a bit newer and not everyone may know what it is yet. Hopefully these items will help you sort some things out. Also, I would love to meet up with you sometime, if you are interested, to show you more of my recent book, along with an example of the "coffee table book" that included in all of our packages. My place of choice is Satellite... Good luck with your planning, and I hope to talk with you soon!

-Elaine"

The initial complaint was investigated by the state's Human Rights Commission, in which they deemed the decision discriminatory. That decision was then upheld in June of 2012 by the New Mexico Court of Appeals. After that, it was appealed again by Elane Photography to the state supreme court claiming photography was an "expressive" medium therefor protection under the First Amendment was claimed. The ACLU stated on their website "that taking photographs for hire is a commercial service subject to commercial regulation.  A commercial business cannot solicit customers from the general public to buy its services as a photographer for hire and then claim that taking those photographs is a form of its own autonomous expressive activity."

After appeal after appeal by Elaine, The New Mexico Court of Appeals finally concluded that "a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the [New Mexico Human Rights Act] and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races."

Although this was only a commitment ceremony, same-sex marriage was not legal at the time of the inquiry, nor at any time during the initial decisions. Santa Fe started issuing same-sex marraige licenses on April 24, 2013. The final decision in the case came yesterday, which also happens to be the same day that the same-sex marraiges will now be issued marraige licenses in Doña Ana County. The county clerk, Lynn Ellins, expressed "After careful review of New Mexico's laws it is clear that the state's marriage statutes are gender neutral and do not expressly prohibit Doña Ana County from issuing marriage licenses to same-gender couples. Any further denial of marriage licenses to these couples violates the United States and New Mexico Constitution and the New Mexico Human Rights Act." Upon searching for any websites still linked to a possible business for Elane Photography a sister website was started by Tom Alciere in response to the trial.

[via TOWLEROAD]

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294 Comments

Previous comments

Well, it's my restaurant. Why can't I say that I only serve attractive Christians and deny service to everyone else?

I specialize in editorial fashion and beauty and i work within the industry standards. I turn down models ALL THE TIME because they do not fit that standard. That being said, i very rarely ever work with men. This is my choice. I turn down at least 5 shoots a week with people that dont fit within my branding and style. That doesnt mean i am against those people, but it is my choice who i photograph or who i dont. You can look at this any way you want, but the idea that one of these girls who is 5'4 and size 12 coming to me and suing me because i told her she did not fit within the industry standard is ridiculous. She cant fit in the sample sizes therefore i cant use her. Im not against normal average people, but that doesnt mean i should have to photograph them because im discriminating against them if i dont.

I dont shoot weddings so i am relating it to what I do. The point i was making is if she doesnt shoot same sex marriage she shouldnt have to accept the job just because they ask. She deserves the right to turn down any job she doesnt want to do, and the fact that she is getting sued for it is messed up.

I totally agree with you. But on the other hand, where do we draw the line between personal freedom and discrimination? Should public schools be allowed to choose students of certain race or religion? What types of business are allowed to discriminate?

Let's say you shoot mostly female models. Should you be allowed to say that you don't shoot Jewish female models?

Public schools get their funding from the local/state governments. Whatever rules they have are what the school is forced to follow.

Private schools which provide their own funding can and do choose the students that they want to attend there.

Discrimination happens legally all the time. In fact, most kinds of discrimination are not only legal, they are expected, and in some cases even mandatory.

Poor people are discriminated against because they don't have enough money. Male massage therapists are discriminated against because entirely because of their gender and the discomfort many clients have about receiving a massage from a man.

People under 21 are discriminated against when they want to buy beer.

I could go on and on, my point is that this word "discrimination" is just a word. It is the basis for discrimination, not discriminating, that is made illegal. That effectively makes it a thought crime.

If you draw a line between personal freedom and discrimination, you are drawing a line through personal freedom. No two ways about it. When a particular basis of discrimination is made illegal, someone's liberty is compromised.

Even these anti-discrimination laws are discriminatory. They only insure business owners and landlords and employees can't say no to some people for some reasons while leaving it okay to discriminate against other people for other reasons. They discriminate between which groups will be guaranteed access and which won't, and it gets confusing because there is overlap. Did that landlord turn me away because he didn't like the way I look or because he felt safer renting to the other person. Let's sue him and find out.

While it would cause some sadness or disappointment for some, I think the best way is to simply protect the customers right to choose and the business owner's right to choose. If both parties aren't happy with doing business with the other, a deal doesn't happen and they look elsewhere for customers and services.

Public schools is a bad example as they are funded by the government and taxpayer money. But I get what you're saying.

I think for a personal business completely out of the hands of the government, why can't you choose to not cater to jewish people, or black people, or white people, or females, or smokers, or overweight people?? They will end up putting themselves out of business with those standards faster then the courts can put them out of business. Let the market destroy companies that discriminate needlessly, not the government.

Fashion models aren't a specifically protected minority under the New Mexico Human Rights Act. No worries, you're safe.

But actually you're not denying them your services as they are not really your clientele. Your clientele would be whoever you are selling the images to and the models would be, essentially, contractors.

Why couldn't you? Odds are you will have an awful reputation around town and because of your very narrow client base you won't have a very sustainable business model. But if you had the financial means to make it happen, you should have every right run your business as you see fit.

And legally all you'd have to do is create a membership for this establishment, thereby removing it from being considered "public accommodation" and you would no longer be subject to the legislation being used here.

The real flaw in this case is the misuse of the idea of a public accommodation, as I would never consider the work of a private artist that operates on a contract basis a public accommodation.

I keep seeing your restaurant example, and it really isn't equivalent. That is an establishment that allows the public onto it's property. Also, eating and marriage are not even close the same kind of business. One can shoot 20 weddings in a year and make enough to be your full time job, but restaurants needs probably hundreds a customers a day.

I used restaurants as an example of a business that has to abide by the Anti-Discrimination Law. If you have a photography business, why do you think that law shouldn't apply? If certain businesses don't have to abide by that law, what other businesses besides photography have the same privilege?

Lee Morris's picture

I have to agree with you. I hate the government being able to tell me I have to take a job. I also dont think the goverment should tell gay people that they cant marry. I've turned down jobs for some pretty crazy reasons in the past and if one of those clients happened to be gay they could sue me?

I understand that discrimination is a terrible and hurtful thing but would you really want to force someone to shoot your event if they don't want to?

I assume this is a law to make a point about hate and discrimination rather than to be used. A photographer could come up with a million reasons why they don't want to shoot a wedding. Hopefully this law will keep people from being jerks.

No, the law will not prevent people "from being jerks" and this photog was not being one for declining the job. Can the state of New Mexico force a christian to photograph a satanic ceremony, or an African American a Klu Klux Clan rally? The photographer's 1st Amendment rights should trump any "New Mexico Human Rights Act".

This couple could easily have found a number of other photographers that would have been more than happy to take their business. Clearly, they, and their ACLU attorneys, were looking to push a point and make an example.

Whatever opinion one holds on the issue, everyone should find this over-extension, heavey-handed, and Orwellian, approach to state and local governance, chilling. Hopefully, this case will be taken to the SCOTUS and overturned.

But this is a part of business, like filing your taxes or paying your employees. Sometimes we have to do things in business we don't want to do. What if a store put up a sign saying "We don't serve black people"? Or closer to home, what if Elaine had replied to a black person this way? Or a Jewish person? I'm atheist, but I shoot Christians all the time. As a business person, you suck it up and do it. The trade-off is you get to have some of this person's hard-earned money in exchange.

I think any business should be free to choose their clientele and would even answer your questions with a resounding yes if I think they should be able to put up signs that say "We do not serve [insert race/religion/sexual preference]." Do I agree with their stance? No and I think it would be a poor business choice for them to make but that's their choice to make because it's their money that they've invested into running it. The laws in our country should not dictate the jobs we take on in our private business.

I honestly think that anti-discrimination laws are a good thing, but they do leave us walking a very fine line in situations like this.

I myself am part of the LGBT community and a photographer, and as such, I don't know that I would sue someone over turning down a job because they don't do same gender weddings (or what have you).

If I was denied service at a store or restaurant or hospital, I would probably pursue it, but photography, or as in another case that made news, wedding cakes? I think maybe part of my hesitance is my own work, and knowing that there are jobs I would want to turn down for various reasons and also because I think that if I were getting married, I would want to hire people who came into the process happy to be there, not someone I was making miserable.

I have turned down jobs before with a simple and polite, "No thank you. Let me recommend someone else to you."

I understand the desire not to relinquish control Michael, but sometimes that just comes with business. She's a small business, but let's imagine that same policy used by large corporations. What if McDonald's, for example, put up signs outside their restaurants saying "We only serve traditional families". This is, in effect, what Elaine was doing and what you're advocating.

Absolutely, couldn't have said it better myself.

Chad Andreo's picture

This is ridiculous!

I think there is a major point that is being overlooked.
I am all for anti-discrimination rules and laws that protects us, but with wedding photography you are dealing with a unique and usually intimate situation. If a photographer does not feel comfortable posing same-sex couples intimately, they should not be forced to do so. Could you imagine how uncomfortable a photographer like Elane would be trying to make light-hearted conversion with a same-sex couple to get them "in the mood" during the portrait session

I cannot understand why a couple/client would want to hire a photographer for a job if that photographer is not comfortable with it.

or good at ! Being a photographer is not just operating the equipment and getting correct exposures. It's interacting with the client too right ?

Chad, that couple didn't want to hire them. They wanted to make trouble for them. They wanted to create an issue to get attention toward their cause.

It's like case a couple years ago in Toronto (or some Canadian city) where a woman walked into a barbershop ran by devout Muslims and demanded a haircut. They don't touch women who are not part of their family--it's their religion. The barbershop got sued and they lost even though they offered to bring in another barber who wasn't religiously restricted from cutting women's hair. She didn't want the haircut, she wanted to make a fuss and "score one for her team."

I totally agree with you here... it was all about "scoring one for the team". Did they want to *force* Elaine to shoot their wedding? No way. They just wanted her to suffer because of her beliefs. And suffer she did, I'm sure. Does anyone know if Elaine is still in business?

I think a move like suing Elaine did nothing for their cause other than scare other business owners who might believe like Elaine into compliance. Some might think that was a "win" but I disagree. I think a "win" for the sam-sex couple would have been to accept with maturity Elaine's bigotry and win a change of heart with patience and setting a good example, not by suing her to make a public statement. Elaine likely now will hold even stronger to her belief that same-sex couples are wrong and it will be even more difficult to show her they are equal in every way.

And think about it. If other businesses don't *want* to shoot same-sex weddings, but do anyway for fear of being sued, would you *want" that person to shoot your wedding? I wouldn't. I would only want a photographer that firmly believes in same-sex marriages. Otherwise the photographs will suffer.

All she had to do was say "commitment ceremony photography is not a service we provide". Also by saying she doesn't shoot same sex weddings was not discriminatory because at the time, there were no same sex weddings (legally); so how could she shoot them? Had they tried to book using Misty's email, a creative lawyer could argue fraud - trying to hire a wedding tog to shoot a wedding that wasn't a wedding.

Please note, I have nothing against same sex marriage - let them be as unhappy as us breeders.

Zach Sutton's picture

Well, actually, the District Attorney in New Mexico just decided that the marriage laws here in the state are too ambiguous to decide if Same Sex Marriage is legal or not, and has decided to allow them, which the state supreme court agreed with. So, technically, same sex marriage in the state of New Mexico has always been legal, they just didn't recognize that until recently. So under that regard, it was discriminatory towards the couple.

But I agree, it was a matter of wording. Its okay if she wanted to turn down them, you have the right to choose your clients. However, when you do it based on sexual orientation or racial profiling, you run into a whole mess of civil right problems. If you don't want to shoot same sex marriage, its important to handle the response correctly....something Elane didn't do.

This whole situation can also be hypothetically reversed. What if an anti-gay group was holding a demonstration and wanted to hire you to shoot it. Could you choose to not shoot it because you don't hold that particular view and do not want to be seen as endorsing it with your work? Apparently not.

Chris Helton's picture

i was thinking this same thing. As a photographer its a sticky place photographing any particular subject because it will appear as if you are endorsing it. IF said subject is not something you wish to have your business support/indorse then you should have a right to decline it. No matter what it may be.

The problem with that analogy is what you describe is a political rally. A wedding, same-sex or not, is a wedding.

I specifically chose demonstration, which could be political but not necessarily. Regardless, lets change the example and say a polygamist wanted you to shoot their wedding. Or lets say the Keystone pipeline wants you to shoot promotional material but you are opposed to it. The same question applies. If you don't want be seen as endorsing something that you object to on a moral basis, should the state force you to do it anyway?

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