The right to choose what (or who) you photograph

I know I write almost exclusively about criminal law, but I have spent the past hour reading 7 posts at Volokh on the application of the First Amendment and the issue is just too fascinating not to share. It reads like a law school hypothetical. The entire thread of posts is collected here (oldest to most recent).

Here’s the skinny:

Elaine owns Elane photography. She is, among other things, a wedding photographer. A lesbian couple approaches her and asks her to photograph their commitment ceremony. She responds, saying that she photographs only “traditional” ceremonies. They ask what “traditional” means. She responds that she does not photograph gay ceremonies. Somehow it ends up in front of the New Mexico Human Rights Commission, who fines her and orders her to pay legal fees.

The question is: Is her refusal to photograph this “non-traditional” ceremony protected by the First Amendment?

Several key points:

• Same-sex couples are apparently a “protected class” under New Mexico law.
• Is there a distinction between her refusing to be hired by same-sex couples or refusing to be hired by anyone to photograph same-sex couples?
• Is that indeed a key distinction in this case?
• If she refuses to photograph same-sex couples because of her religious beliefs, does that entitle her to an exemption from the anti-discrimination law?
• Why the hell didn’t the couple just go to another photographer?
• Why is she turning down perfectly good business?

The comments to these posts are very…interesting…to put it mildly.

I know nothing about First Amendment law and even less about First Amendment law, but it seems to me that there is a significant distinction between someone refusing to be hired by a same-sex couple because they are a same-sex couple and refusing to be hired by a same-sex couple to create/produce something they don’t believe in.

I do think that if you are a business, holding yourself out to be a business, then you should be unable to discriminate based on the customer’s race, sex, sexual orientation, etc.., but you should be able to refuse to accept work because you find the product you are asked to create to be objectionable.

For example: If I am a photographer and a same-sex couple asks me to photograph a same-sex commitment ceremony, I should be able to refuse that job because I am deeply against same-sex ceremonies, but not because the couple asking me to photograph that ceremony is a same-sex couple.

But then i think about it and it gets more complicated. What if a same-sex couple asks me to photograph an inter-racial marriage? Can I still validly refuse because I don’t think people of different races should marry? Is that still not discrimination? If so, is it still protected by the First Amendment?

I told you it was interesting.

Image courtesy amanky. License details here.