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Just yesterday, in Elane Photography v. Willock, the New Mexico Supreme Court issued a most unfortunate ruling on the application of the New Mexico Human Rights Laws to a Christian photographer, Elaine Huguenin, who refused, on religious grounds, to photograph the wedding of a lesbian couple. The decision of the Court was unanimous (with one misguided concurrence), and it shows the sorry state to which the human rights laws have fallen in their treatment of public accommodations.
In this case, the New Mexico Human Rights Act (NMHRA), adopts (as is typical in these instances) a very broad definition of what counts as a public accommodation subject to its general non-discrimination laws. Thus, the term includes, “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.”
There is, in my view, no doubt that this definition covers Elane Photography, the small husband-and-wife photography firm hauled before the court. And that is just where the problem begins. The traditional account of a public accommodation, derived from the early English Law, was limited to those organizations that had some degree of monopoly power in a particular market. This was intended to deal with situations where, for example, only one firm could get you from London to Oxford, or only one inn was available in Reading. At that point, a refusal to deal could not be offset by going to another provider.
The current definition of a public accommodation, however, covers all sorts of competitive businesses. As they well knew, Vanessa Willock and Misti Collinsworth — the lesbian couple in this case — had access to plenty of other firms that were interested in their business. Indeed, it is highly unlikely that the couple would want to have hired a photographic team that was morally opposed to the ceremony. There is, alas, in much of the modern law of public accommodations a foolish assumption that the services in question are purely transactional, like withdrawing money from an ATM machine or getting a grocery cart through a supermarket line. But these arrangements are, to some degree, intimate and some measure of chemistry is needed. Willock and Collinsworth had lots of alternatives, so why force the issue at all? Or, to put the question the other way: could Willock and Collinsworth have been hauled into court if they refused to hire Elane Photography because its owners were opposed to gay marriage?
Indeed, from the sketchy facts of this case it appears that the couple set up a test case on the reach of the NMHRA. When Huguenin refused to take the business on religious grounds, the couple called back and asked for information about wedding shoots without disclosing that it was for a same-sex ceremony. Once she gave her standard rates, all questions of proof were resolved. What was also resolved, I fear, is that the couple wanted to have the right to employ Huguenin, but not to employ her—which may explain why Willock waived attorneys and was not granted monetary or injunctive relief. What was at stake was the precedent.
In dealing with this issue, Huguenin raised serious questions of whether the duty to serve violated her constitutional rights to freedom of speech and freedom of religion. The New Mexico Supreme Court brushed these issues aside, on the ground that her only duty was to supply her standard services. She was not forced to profess beliefs that she did not hold or to refrain from expressing those that she did hold. But that consolation prize does not explain why there is any reason for this forced association in the first place. And it is always dangerous business for the courts to weigh the strength of private interests against the supposed interests of the state.
The ACLU, in its support of the decision, noted that, “when you open a business, you are opening your doors to all people in your community, not just the select few who share your personal beliefs.” That is true under the terms of the public accommodation law, but there is no explanation as to why this should be the case. The simple response here is that Huguenin did not open her doors to all people in her community — she only opened them to those with whom she wanted to do business. It is the law, not her, that imposes the fundamental obligation — and it does so at great cost to the party who is forced to supply the service, all in order to generate a symbolic benefit to those who could easily have had their needs met elsewhere in the market.
The concurring opinion of Judge Bosson expresses some uneasiness with the basic decision, noting the dangers of forced speech in the flag salute cases during the Second World War. He follows that up by noting that in 1967’s Loving case the Supreme Court struck down Virginia’s anti-miscegenation law. That opinion should be heartily welcomed by libertarians on the ground that it sweeps aside an odious state restriction on the freedom to marry, which was supposedly justified in terms of the racial stability and harmony that it created in Virginia. But, in reality, it was an ugly manifestation of state monopoly power in withholding a license.
Bosson then argues that the move from Loving to the public accommodation provisions of Title II of the Civil Rights Act of 1964 is a short one, given that these laws declared “invidious“ all discrimination, whether done by the state or through private decisions. It is here that he goes wrong in dealing with the issue. As I argued recently in my Hoover column on The Butler, it is one thing to use the power of the state to counteract private threats of force or the state’s unwillingness to supply key essential services. It’s quite another to use it to regulate individual, voluntary transactions with readily available substitutes. Title II properly functioned as a counterweight to local monopoly. It should not be extended this far.
Times have, to say the least, changed since Title II was passed in 1964. Now the power runs in the opposite direction. Today, Huguenin is the isolated minority while Willock and Collinsworth hold all the powerful political cards. No longer do public accommodation rules protect those who are unable to protect themselves. Now it allows those in the politically dominant faction to impose their wills on minority groups that cannot defend themselves through the political process.
It is perfectly consistent to want to protect gay marriage and to want to strike down the New Mexico Human Rights Act. Gay marriage advances freedom of association — to which the broad application of the NMHRA is a massive affront. This situation should change promptly. So let us hope that the Supreme Court takes this case and keeps its wits about it by reversing this most unfortunate decision.