309 P.3d 53 (N.M. 2013), 33,687, Elane Photography, LLC v. Willock

Docket Nº33,687.
Citation309 P.3d 53, 2013 -NMSC- 040
Opinion JudgeCH
Party NameELANE PHOTOGRAPHY, LLC, Plaintiff-Petitioner, v. Vanessa WILLOCK, Defendant-Respondent.
AttorneyModrall, Sperling, Roehl, Harris & Sisk, P.A., Emil John Kiehne, Albuquerque, NM, Becht Law Office, Paul F. Becht, Albuquerque, NM, Alliance Defending Freedom, Jordan W. Lorence, Washington, D.C., Alliance Defending Freedom, James A. Campbell, Scottsdale, AZ, for Petitioner. Lopez, Sakura & Boyd,...
Judge PanelACLU of New Mexico, Laura Louise Schauer Ives, Albuquerque, NM, LGBT & AIDS Project, ACLU Foundation, Joshua A. Block, New York, NY, for Amici Curiae American Civil Liberties Union Foundation and American Civil Liberties Union of New Mexico. WE CONCUR: PETRA JIMENEZ MAES, Chief Justice, CHARLES W...
Case DateAugust 22, 2013
CourtSupreme Court of New Mexico

Page 53

309 P.3d 53 (N.M. 2013)

2013 -NMSC- 040

ELANE PHOTOGRAPHY, LLC, Plaintiff-Petitioner,

v.

Vanessa WILLOCK, Defendant-Respondent.

No. 33,687.

Supreme Court of New Mexico.

August 22, 2013

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Modrall, Sperling, Roehl, Harris & Sisk, P.A., Emil John Kiehne, Albuquerque, NM, Becht Law Office, Paul F. Becht, Albuquerque, NM, Alliance Defending Freedom, Jordan W. Lorence, Washington, D.C., Alliance Defending Freedom, James A. Campbell, Scottsdale, AZ, for Petitioner.

Lopez, Sakura & Boyd, L.L.P., Julie Sakura, Santa Fe, NM, Sarah Steadman, Santa Fe, NM, Tobias Barrington Wolff, Philadelphia, PA, for Respondent.

Doughty & West, P.A., Robert M. Doughty, III, William Wayne Wirkus, Albuquerque, NM, Asma Uddin, Diana Verm, Washington, D.C., Douglas Laycock, Charlottesville, VA, for Amicus Curiae The Becket Fund for Religious Liberty.

Law Office of Michael J. Thomas, L.L.C., Michael J. Thomas, Las Cruces, NM, Eugene Volokh, Los Angeles, CA, for Amicus Curiae The Cato Institute.

Evie M. Jilek, Albuquerque, NM, for Amici Curiae Wedding Photographers.

Natalie A. Bruce, Albuquerque, NM, Steven H. Shiffrin, Ithaca, NY, for Amici Curiae Steven H. Shiffrin and Michael C. Dorf.

Sutin, Thayer & Browne, P.C., Kerry C. Kiernan, Lynn E. Mostoller, Albuquerque, NM, for Amicus Curiae New Mexico Small Businesses.

ACLU of New Mexico, Laura Louise Schauer Ives, Albuquerque, NM, LGBT & AIDS Project, ACLU Foundation, Joshua A. Block, New York, NY, for Amici Curiae American Civil Liberties Union Foundation and American Civil Liberties Union of New Mexico.

OPINION

CHÁVEZ, Justice.

{1} By enacting the New Mexico Human Rights Act (NMHRA), NMSA 1978, §§ 28-1-1 to -13 (1969, as amended through 2007), the Legislature has made the policy decision to prohibit public accommodations from discriminating against people based on their sexual orientation. Elane Photography, which does not contest its public accommodation status under the NMHRA, offers wedding photography services to the general

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public and posts its photographs on a password-protected website for its customers. In this case, Elane Photography refused to photograph a commitment ceremony between two women. The questions presented are (1) whether Elane Photography violated the NMHRA when it refused to photograph the commitment ceremony, and if so, (2) whether this application of the NMHRA violates either the Free Speech or the Free Exercise Clause of the First Amendment to the United States Constitution, or (3) whether this application violates the New Mexico Religious Freedom Restoration Act (NMRFRA), NMSA 1978, §§ 28-22-1 to -5 (2000).

{2} First, we conclude 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 NMHRA 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.

{3} Second, we conclude that the NMHRA does not violate free speech guarantees because the NMHRA does not compel Elane Photography to either speak a government-mandated message or to publish the speech of another. The purpose of the NMHRA is to ensure that businesses offering services to the general public do not discriminate against protected classes of people, and the United States Supreme Court has made it clear that the First Amendment permits such regulation by states. Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws. We also hold that the NMHRA is a neutral law of general applicability, and as such, it does not violate the Free Exercise Clause of the First Amendment.

{4} Finally, we hold that the NMRFRA is inapplicable in this case because the government is not a party. For these reasons, we affirm the judgment of the Court of Appeals.

BACKGROUND

{5} The NMHRA prohibits, among other things, discriminatory practices against certain defined classes of people. See § 28-1-7. In 2003, the NMHRA was amended to add " sexual orientation" as a class of persons protected from discriminatory treatment. 2003 N.M. Laws, ch. 383, § 2. " Sexual orientation" is defined in the NMHRA as " heterosexuality, homosexuality or bisexuality, whether actual or perceived." Section 28-1-2(P). In this case, we are concerned with discrimination by a public accommodation against a person because of that person's real or perceived homosexuality— that person's propensity to experience feelings of attraction and romantic love for other members of the same sex.

{6} " Public accommodation" is defined in the NMHRA as " 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." Section 28-1-2(H). Thus, a business that elects not to offer its goods or services to the public is not subject to the NMHRA.

{7} Vanessa Willock contacted Elane Photography, LLC, by e-mail to inquire about Elane Photography's services and to determine whether it would be available to photograph her commitment ceremony 1 to another woman. Elane Photography's co-owner and lead photographer, Elaine Huguenin, is personally opposed to same-sex marriage and will not photograph any image or event that

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violates her religious beliefs. Huguenin responded to Willock that Elane Photography photographed only " traditional weddings." Willock e-mailed back and asked, " Are you saying that your company does not offer your photography services to same-sex couples?" Huguenin responded, " Yes, you are correct in saying we do not photograph same-sex weddings," and thanked Willock for her interest.

{8} In order to verify Elane Photography's policy, Willock's partner, Misti Collinsworth, e-mailed Elane Photography and inquired about its willingness to photograph a wedding, without mentioning the sexes of the participants. Huguenin sent Collinsworth a list of pricing information and an invitation to meet with her and discuss her services. A few weeks later, Huguenin again e-mailed Collinsworth to follow up.

{9} Willock filed a discrimination complaint against Elane Photography with the New Mexico Human Rights Commission for discriminating against her based on her sexual orientation in violation of the NMHRA. The Commission concluded that Elane Photography had discriminated against Willock in violation of Section 28-1-7(F), which prohibits discrimination by public accommodations on the basis of sexual orientation, among other protected classifications. It awarded Willock attorneys' fees, which Willock later waived. No other monetary or injunctive relief was granted.

{10} Elane Photography appealed to the Second Judicial District Court for a trial de novo pursuant to Section 28-1-13(A). See NMSA 1978, § 39-3-1 (1955) (" All appeals from inferior tribunals to the district courts shall be tried anew in said courts on their merits, as if no trial had been had below, except as otherwise provided by law." ). Elane Photography sought a reversal of the award of attorneys' fees, a declaratory judgment that it had not discriminated on the basis of sexual orientation, and a ruling that its rights had been violated, among other relief. The parties filed cross-motions for summary judgment, and the district court granted summary judgment for Willock. Elane Photography again appealed, and the Court of Appeals affirmed. Elane Photography, LLC v. Willock, 2012 -NMCA- 086, ¶ 1, __ N.M. __, 284 P.3d 428. We granted certiorari.

{11} Elane Photography argues before this Court that: (1) it did not discriminate on the basis of sexual orientation, and therefore it did not violate the NMHRA; or, alternatively, (2) by requiring Elane Photography to accept clients against its will, the NMHRA violates the protection of the First Amendment against compelled speech; (3) the NMHRA violates Elane Photography's First Amendment right to freely exercise its religion; and (4) the NMHRA violates Elane Photography's right under the NMRFRA to freely exercise its religion. For the reasons that follow, we reject Elane Photography's arguments and affirm summary judgment for Willock.

DISCUSSION

{12} The parties agree on the facts in this case, and the only question for this Court to consider is whether Willock is entitled to judgment as a matter of law. See Self v. United Parcel Serv., Inc., 1998 -NMSC- 046, ¶ 6, 126 N.M. 396, 970 P.2d 582 (" Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." ). On appeal, we review a grant of summary judgment de novo. Id.

I. ELANE PHOTOGRAPHY REFUSED TO SERVE WILLOCK ON THE BASIS OF HER SEXUAL ORIENTATION IN VIOLATION OF THE NMHRA

{13} The NMHRA seeks to promote the equal rights of people within certain specified classes by protecting them against discriminatory treatment. See Juneau v. Intel Corp., 2006 -NMSC- 002, ¶ 14, 139 N.M. 12, 127 P.3d 548 (" The NMHRA protects against discriminatory treatment...." ). To accomplish this goal, the NMHRA makes it unlawful for " any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to...

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171 practice notes
  • 346 P.3d 377 (N.M.App. 2014), 31,682, State ex rel. King v. Behavioral Home Care, Inc.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • June 9, 2014
    ...decline to address this inarticulate argument addressing Section 30-44-4(A). See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (" It is of no benefit either to the parties or to future litigants for [the appellate courts] to promulgate case law based on our own sp......
  • 387 P.3d 296 (N.M.App. 2016), 33,920, State v. Gallegos
    • United States
    • New Mexico Court of Appeals of New Mexico
    • June 23, 2016
    ...might be as to how the district court abused its discretion. See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 ( " [Appellate courts] will not review unclear arguments, or guess at what a party's arguments might be." (alteration, internal ......
  • State v. Catt, 111318 NMCA, A-1-CA-34839
    • United States
    • New Mexico Court of Appeals of New Mexico
    • November 13, 2018
    ...to racketeer charge and we, therefore, do not address it. See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 ("We will not. . . guess at what a party's arguments might be." (alteration, internal quotation marks, and citation omitted)).......
  • 347 P.3d 284 (N.M.App. 2015), 32,708, State v. Murillo
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 21, 2015
    ...protection argument. We will not construct Defendant's argument on his behalf. Elane Photography v. Willock, LLC, 2013 -NMSC- 040, ¶ 70, 309 P.3d 53 ( " We will not review unclear arguments, or guess at what a party's arguments might be." (alterations, internal quotation marks, an......
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136 cases
  • Monroe v. Fallick, 121718 NMCA, A-1-CA-35475
    • United States
    • New Mexico Court of Appeals of New Mexico
    • December 17, 2018
    ...itself, effectively performing the parties' work for them." Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53. "This creates a strain on judicial resources and a substantial risk of error. It is of no benefit either to the parties or to f......
  • State v. Catt, 111318 NMCA, A-1-CA-34839
    • United States
    • New Mexico Court of Appeals of New Mexico
    • November 13, 2018
    ...to racketeer charge and we, therefore, do not address it. See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 ("We will not. . . guess at what a party's arguments might be." (alteration, internal quotation marks, and citation omitted)).......
  • 347 P.3d 284 (N.M.App. 2015), 32,708, State v. Murillo
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 21, 2015
    ...protection argument. We will not construct Defendant's argument on his behalf. Elane Photography v. Willock, LLC, 2013 -NMSC- 040, ¶ 70, 309 P.3d 53 ( " We will not review unclear arguments, or guess at what a party's arguments might be." (alterations, internal quotation marks, an......
  • Martin v. State, 062420 NMCA, A-1-CA-36527
    • United States
    • New Mexico Court of Appeals of New Mexico
    • June 24, 2020
    ...to the WCJ's award, we decline to address it any further. See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (stating that "[t]o rule on an inadequately briefed issue . . . creates a strain on judicial resources and a substantial risk ......
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35 books & journal articles
  • Daniel in the Lions Den: A Structural Reconsideration of Religious Exemptions from Nondiscrimination Laws Since Obergefell.
    • United States
    • Stanford Law Review Vol. 70 Nbr. 1, January 2018
    • January 1, 2018
    ...turn away, in violation of state civil rights law, a lesbian patient seeking in vitro fertilization); Elane Photography, LLC v. Willock, 309 P.3d 53, 58-59, 73, 75 (N.M. 2013) (applying Smith to reject a photography studio's claim that the Free Exercise Clause allowed it to decline, in viol......
  • The unrelenting libertarian challenge to public accommodations law.
    • United States
    • Stanford Law Review Vol. 66 Nbr. 6, June - June 2014
    • June 1, 2014
    ...the Civil Rights Era--that it prevents other groups from meaningfully pursuing their own visions of pluralism and dissent."). (161.) 309 P.3d 53 (N.M. 2013), cert, denied, 134 S. Ct. 1787 (2014). (162.) Id. at 59-60. (163.) In the New Mexico Supreme Court, Elane Photography did not den......
  • Linguistic relativism and the decline of the rule of law.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 39 Nbr. 3, June 2016
    • June 22, 2016
    ...[https://perma.cc/BVP5-PJ8A]. For an earlier episode in the same vein, see, for example, Elane Photography, LLC v. Willock, 309 P.3d 53, 58-59 (N.M. 2013), cert, denied, 134 S. Ct. 1787 (2014), which I criticize in Richard A. Epstein, Public Accommodations Under the Civil Rights Act of 1964......
  • Running mom and pop businesses by the good book: the scope of religious rights of business owners.
    • United States
    • Albany Law Review Vol. 78 Nbr. 4, June - June 2015
    • June 22, 2015
    ...F. Supp. 2d 1287, 1292-93 (D. Colo. 2012), aff'd, 542 F. App'x. 706 (10th Cir. 2013). (9) See, e.g., Elane Photography, LLC v. Willock, 309 P.3d 53, 58 (N.M. 2013), cert, denied, 134 S. Ct. 1787 (2014). (10) See Thanksgiving Lessons for Grades PreK-2, SCHOLASTIC, http://www.scholastic.com/t......
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