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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I know some small business owners that think just because
you own your own business you can do whatever you want to do. This is not the
case. When providing a service to the
general public, there are certain rules you have to follow. You may or may not
agree with the rules but you have to follow them. These rules and regulations
are to protect basic civil rights among lots of other things. There was a time
when African Americans had to set in the back of the bus. Or eat in the back of restaurants and drink
out of Black Only water fountains. There were laws passed preventing these
actions from taking place now. Until
this year Augusta National Golf course did not accept women members. The key thing is Augusta National is a
PRIVATE Golf Club. They have the right
to admit who they want. Public businesses do not have this right. A lot of small business owners are learning
the hard way about discrimination against gays. Most small business owners do
not have legal teams on staff telling them that they can be sued for discrimination
for their actions. You don’t hear these
types of things happening as much with large corporations. You are starting to hear
it all the time with small mom and pop small businesses, especially in the
wedding industry. Most of these owners want to make a point that they are against
the gay lifestyle. When all they had to
do is treat the potential client like any other potential client. For photographers during the booking process
if you are candid and honest with your client there will be a time for you to
tell them why you may not be a good fit for them. There is a way to do it without discriminating.
Then live the ball in their court. As
for venues, cake, dress ect… It is a lot harder to explain why they may not be
a good fit for their business without discriminating against the gay couple. Public vs Private

Hi, off topic question - but I'm curious about the use of the [sic] when quoting Elaine's second response - after the word "definitely". What was the mistake that was being quoted verbatim?

Graham Marley's picture

I don't think making up an excuse to avoid doing the job is a great business practice, because as the article points out, the couple sent another inquiry under false pretenses and could have caught Elaine in a lie if she had said "Oh I'm just not available on that date" or something similar. If Elaine is basing her business decisions on her moral principals, I don't see the value in a lie, which would also probably be against her moral principals.

I would be honest and appeal to the couple's need for someone who would be a good fit for their event. She should have given a frank, but polite and compassionate statement like "I will do this if you want me to, but only because I am required to by law, and not because I think I can perform up to your expectations. It is my professional opinion that you would be served better by someone else, but the decision is yours." I think everyone would be able to find a way to meet their needs in that case.

Personally, I think this is extensively murky on the legal end. Is Elaine discriminating against PEOPLE or an ACT? It would be one thing if Elaine just said "I do not take pictures of gay people." I think the fact that Elaine is specifically saying that she does not take pictures of certain people DOING a certain ACTION is a very different animal.

Very well said Graham. I completely agree with you about how she should have handled it. I commented elsewhere about how the same-sex couple shouldn't *want* Elaine to shoot their wedding because her heart wouldn't be in it.

But Elaine isn't discriminating against an action (getting married). Rather, she's discriminating on the basis of the genders and sexual orientation of the people involved in the action. Or to paraphrase what you said, "Elaine is specifically saying that she does not take pictures OF CERTAIN PEOPLE doing a certain action…"

Graham Marley's picture

I disagree completely. My operator was "Elaine taking pictures of." Let me expand on that point. In so far as wedding photography is concerned, I don't see how you can divorce photographic work at a wedding from *participating* in the wedding: You're influencing and guiding portions of the day, and using art to celebrate what's going on at the wedding. Elaine's beliefs make her a certain kind of person, religion is absolutely an identity factor, especially in discrimination cases, and she acted according to that factor. Her, presumably, religious beliefs made it so that she could not in good conscience participate in a certain act. The law/state can absolutely grant equal rights to gay couples as far as the social contract of marriage is concerned. The state in no way can dictate the moral value of those rights, that is entirely up to the individual. The various factors of any given act, including types of participants of the act, is absolutely relevant to any individual assignment of moral value. To suggest otherwise is preposterous. Moral values inherently run into religious preference, and religious preference is a protected right.

Now, by your logic, if it has to be such that Elaine was specifically targeting gay people for discrimination on the basis of their identity, and not the isolated action of a wedding, then the lawsuit did not target Elaine's choice to not participate in an act that she disagreed with on a moral basis, but ELAINE herself was the target by virtue of having those beliefs in the first place, which is retributive discrimination. Following the implications of what you said about what Elaine's choices have to have been, the couple's choice to sue her was motivated specifically by Elaine being an orthodox Jew, Muslim or Christian, as opposed to making a motivated choice. Therefore, the state has made it illegal to practice religious beliefs (or by your definition, be who they are) within a certain industry, which is not only blatantly discriminatory, but also insanely dangerous.

She's documenting the event, not performing the marriage or signing a marriage certificate. She doesn't need to change or alter her beliefs one iota to photograph a same-sex ceremony (though I might suggest that she should heed more carefully her faith's admonitions against treating sinners poorly). Again, one doesn't need to affirm or support what one is photographing to connect with one's subjects on a human level, to provide basic advice on posing and scheduling, to take quality pictures, or to employ one's artistic talents in processing those images. If that were the case, who could perform compelling work as documentary photographers on challenging and controversial subjects (war, crime, drugs, etc.)?

The inability to step away from one's personal feelings and beliefs on a topic and carry out a task strikes me as very unprofessional attitude. As I see it, being a professional means doing everything I can to provide the same level of service to every client, regardless of my own personal feelings about each client. It's the same standard of conduct I expect from my doctor, lawyer, dry cleaner, or grocer. I should receive the same service from those professionals regardless of my race, religion, or orientation. Why should photographers get a pass? Even if it is Elaine's belief that performing this service would be a violation of her faith, then perhaps she needs to consider the more fundamental question of whether her faith, her current employment, and the laws of the state she works in are compatible, or whether she needs to find a different way to find income through her photography or find somewhere to work that is more compatible with her personal beliefs.

Ultimately, the market will likely have more of an practical impact upon such issues than the isolated legal complaint against an isolated photographer. The wedding market is primarily composed of young couples, and that demographic is becoming increasingly sensitive about retaining vendors (and venues) that have acquired a reputation for discriminating against potential customers on the basis of sexual orientation. Those who choose to engage in such discrimination are running a real risk of being edged out of the market.

Pastors can be sued for denying to marry someone at a wedding. What then?

Not in Maryland.

PSLinden, I couldn't agree more with your last paragraph. The market will weed out businesses that are objectionably discriminatory. Why should the government step in yet again, making themselves bigger and bigger, to make decisions for us? Let the lack of customers put discriminatory businesses out of business.

The rest of your comment, though, I disagree with. You state that you expect to not be discriminated against at the doctor, lawyer, dry cleaner, etc. But what if you were? What if you walked into a grocery store and they told you to leave because you're white or overweight or whatever. What's the next step? Find a different grocery store and tell everyone you know that ABC Grocery discriminated against you for ridiculous reasons. Pretty soon, ABC Grocery will be avoided by not only those they discriminate against, but by those that are acceptable as well because they don't want to patronize such a business. I bet ABC Grocery won't be in business for long, and XYZ Grocery will grow by leaps and bounds because they accept everyone equally.

It just seems that every time anyone who's considered a minority complains about something, the government jumps in to save them and makes something else illegal. I just have to wonder that if the government would back out and let the public decide who stays in business and who doesn't, this could be a much less discriminatory society because the bad apples would be naturally weeded out.

i feel doing a wedding shoot is a commercial decision and each photographer makes these choices based on what they do, i won't do wedding but i will do events specifically cycling events, would these choices be ruled against by organisation running non cycling events eg athletics, motor sports etc. the choice not to shoot same sex commitments is something that should not have gone to court as i'm sure other photographers would fill the gap and some may specialise in such. and those that specialise in such and don't take traditional weddings on are discriminating against traditional marriage. wonder how well that would do in court?

Wow. Photographers !!!! Wake up ! The ACLU stated that offering photographs commercially is subjected to commercial regulation ??? How dumb is THAT ???!!!? The best images come when we are connected to the event and can anticipate the priceless moments. If your heart is sour because of your personal beliefs, then you are no good to those clients. Hands down ! This was not a strike at same sex couples across America. If you take your Audi to a Ford specialist and get mad because he says he won't work on it, do you take him to court ?

Obesity in 98% of cases is a personal choice. I'd rather be surrounded by slim people. It helps me stay slim plus its easier on my eyes and I don't have to feel sorry for them. Am I vain? Should I be punished for exercising this personal choice of lifestyle? It's ok if gay people want to get married. But it's plain wrong for them to push their kind of lifestyle on other people. Years ago during his show, a brazilian comedian commented about all the achievements obtained for issues about sex orientation and rights in his country for all the past recent years. "Great progress but if it becomes mandatory. I'm fleeting this country".

This is bullshit. Forget about beliefs/religions or any other reason. What if someone is "just not interested"?

As a professional this is indeed chilling for me. I am not against LGBT or anyone. I just feel so sorry for the photographer whose freedom of choice was not respected.

Wedding photographers always have an emotional perspective towards covering wedding ceremonies or say, just posing the couple. When its a same sex marriage , what if the photographer is just not comfortable with the idea in their head? This is astonishing!

Keep in mind... Elaine Photography admitted it was a discriminatory reason to the potential client.

Adam T's picture

Moral of the story: If you provide a service open to the public but deny said service because of race, gender, religion or sexual orientation you are subjecting someone to discrimination. The proper thing for the photographer to say in this situation is this:

"Hello ____ I can shoot your ____ but I'm not experienced in that type of situation and might not be able to give you the best quality, I know ______ has done similar situations, you may want to try them, if not I will schedule a conference call with you at a later date"

This is the same line I said when I was asked to a photo a young beauty paginate. The discriminatory way of saying the same thing.

"Oh i don't feel comfortable doing that, my believes won't allow for if because I think it's icky and your daughter is creepy looking."

In the end people wont want to buy or make others complete a service, especially an art service of characterizing them in a special setting, if they fell the quality of the product might be in jeopardy. On the other hand you cant just say no to someone because you feel uncomfortable and make the client feel discriminated

You are the first person to actually give a good alternative for her answer that isn't lying about being booked.

A lot of the commentators do not seem to get it. So let's break it down for you:

First the issue of the "offering photographs commercially is subjected to commercial regulation". This is true. Once you cross the threshold into the professional realm you are subject to a whole set of rules and regulations at local, state, and federal levels. And you must abide by them regardless of your personal beliefs. This means serving clients/customers you might normally avoid. And it is your job to know those laws. Don't like it? Tough. Don't go pro or move to a country like Saudi Arabia. It's the cost of doing business.

Second, some folks are trying to confuse the issue of equality and bring in the "special rights" or "superiority" thing. Apparently some folks do not actually know what "equal" means so I will quote it for you from Merriam-Webster: "regarding or affecting all objects in the same way" This means that Elaine Photography would treat a two men, two women, or a man and a woman the same in terms of a wedding shoot. This was proven not to be the case as both by Elaine's admission in the clarification e-mail and the subsequent e-mail sent by the second woman omitting the same-sex aspect of the job. Therefore Elaine Photography does not treat everyone equal as prescribed by the law. Period.

Now let's move onto the "Photographer's Rights" argument. As stated above, she willingly went into business and therefore she surrenders some of her rights, again willingly, when she chose to do so. This is much in the same way members of the US Military are subject to certain rules and restrictions when they willingly enlist. For example if you cheat on your spouse as a civilian at worst you go through a messy divorce but as a member of the military you are subject to criminal prosecution. So when she hung the sign on her door to go into business, the rights folks are decrying the loss of Elaine's "rights" are decrying the loss of something she willingly surrendered. Again if you do not like it, do not go into business.

Finally, the "brand protection" aspect. Michael Populus mentions he generally works with female clientele of a certain type because of his business type. He would never be subject to a discrimination against men complaint because he does not offer the service to men. It would be like a woman walking into S&K Menswear or The Men's Warehouse (both of which are niche stores that sell men's business suits) and claiming discrimination because they don't sell dresses. The business is defined as a men's clothing. But Elaine's business is photographing weddings which, with or without state approval, is not subject to such a restriction and therefore she was discriminatory.

The problem for Elaine was that she decided to put herself on a cross and go play martyr. The fact her attorney was provided by the Alliance Defense Fund (Now known as the Alliance Defending "Freedom") which is linked to hate-groups shows me this. If she truly was uncomfortable or whatever, she should have been upfront about it and offered to help the couple find an alternative photographer. She could have even lied and said she was booked that day, had an out-of-town engagement, etc. and no one would be the wiser.

"Hate-groups". In other terms, groups which are guilty of "hate speech" which is a legally punishable offense. The implication being that these hate-groups (those who disagree with the LGBT position) aren't entitled to protection under the 1st amendment and should be silent.

So you promote equality for some, but not for others? Sounds like superiority or special rights to me.

CoolFriday: I think you have the United States confused with other countries like Canada. Hate Speech is not illegal in the US. Therefore by that very fact they do have 1st Amendment protection provided their speech does not fall into the well-defined exceptions.

Second Hate Groups, as defined by the Southern Poverty Law Center, are groups "having beliefs or practices that attack or malign an entire class of people, typically for their immutable characteristics." Groups like the American Family Association end up on SPLC's list for things like advocating children of same-sex couple be kidnapped via a system similar to the Underground Railroad during the days of slavery.

And quit being melodramatic with the "equality for some, but not for others" statement. First and foremost, what did I say happens when you go into business? You *willingly surrender* certain rights and agree to abide by certain laws. And if we follow your logic to the end, you just justified Islamic terrorism because they're entitled to convert you or kill you.

You simply stated that equality, by definition, was "regarding or affecting all objects in the same way" and held this up as the standard by which to measure things. However, you won't adhere to your own definition. Invoking the term "hate group" clearly demonstrates that you don't view differing opinions as worth equal treatment. Your remark in other posts disparaging someone's perceived religious affiliation betrays your own bias. By citing Islamic terrorism as an example, you are trying to bolster your claim that your position is superior and enforce that other viewpoints are inferior. If we follow your logic, the LGBT viewpoint should define legal and moral standards and those with dissenting opinions should be disparaged, silenced or punished.

You seem to be really fond of projection. Using a term to describe a group of people who hate me based on how I was born and actively campaigns to keep me a second class citizen does not create inequality. Sorry to burst that bubble for you.

And no, the Islamic terrorist citation is just the next progression. Because if a person's religion trumps everything else in the name of "personal rights" then Islamic terrorists have the right to convert or kill you. Otherwise you are declaring their religion to be "inferior" and yours to be "superior" to use your terms.

And I do not think these organizations should be "punished" I believe in the rule of law. Elaine Photography broke the law pure and simple and no matter what sophistry you or any of her supporters come up with does not negate that fact and I am sure Justice Sotomayer will agree if/when she denies certiori on ADF's potential appeal of the matter.

And it is interesting that you are waiving the banner of oppression when you are not actually oppressed as a heterosexual. Prior to Goodrich v Department of Public Health you could marry anyone you wanted be it your high school sweetheart or someone you met in a haze of alcohol in Vegas. You were never in danger of losing your job or your home because you were heterosexual. You would never be chosen to be beaten up and left for dead or actually killed because you are heterosexual. And guess what? After marriage equality comes to all 50 states and non-discrimination laws are unified to include homosexuals,bisexuals, and transgendered people you STILL will be in no danger of having those things happen to you and your marriage will be still intact.

So now I bid you adieu and may you have a safe trip back to Zandalar.

Over and over, you make conflicting statements while hiding behind the words "equality" and "law". You state "I believe in the rule of law" but go on to say "After marriage equality comes to all 50 states and non-discrimination laws are unified to include homosexuals,bisexuals, and transgendered people ..." and also "...I am sure Justice Sotomayer will agree.." So you aren't for the law in some places, but are in others? Or you are for the law as it will be after LGBT activism changes it?

So I guess you support racial segregation

Well said.

Basil Malik's picture

...Actually this whole issue, denial of service, discrimination is not as big a deal as we are harping on. Being an African American, there are many laws on the books to protect or give equal footing in hiring for example. Yet, discrimination exist just by simply reading the name on the resume and chucking it or if you're lucky enough to get an interview you may not get the job even if you're qualified. The reason why if stated is never because "you are black and we don't hire blacks. The point, in these situations you are never given a reason verbally and especially not written that can be construed as discriminatory. As a photographer you can deny anyone service you choose as long as your reason is not protected by anti discrimination laws. The photographer made a mistake of stating her position because (i am sure) in 2006, she felt her position was accepted and protected by the majority and by extension the law. How foolish. And how quickly tides change.

I feel bad for the photographer, she shouldn't have to photograph something she deosnt agree with or that makes her feel uncomfortable. Just because your gay doesn't mean the whole world has to bow to you.

Just because you are catholic, christian, muslim....doesn't mean the whole world has to bow you. So, don't discriminate people and don't break the law. It's quite simple.

Larry Clay's picture

I am an artiest and I would not shoot a same sex ceremony as I find it morally repugnant. Having said that I would gladly fight and die for their right to have such a ceremony.

So let me get this straight. I can turn you down because you're ugly but not because you're gay...

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