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Judges Cynthia Fry and James Wechsler joined in the ruling by Garcia, which involved Elane Photography, whose owners, Elaine and Jonathan Huegeunin, are Christians and declined to do photography for lesbians Vanessa Willock and another woman.
The women complained under the state’s anti-discrimination requirements and a state commission, the New Mexico Human Rights Commission, imposed the penalty, which now has been affirmed by the appeals court judges. The judges explained in the 45-page ruling that the photography company is a “public accommodation” and those cannot discriminate under state law based on “sexual orientation.”
“The owners of Elane Photography must accept the reasonable regulations and restrictions imposed upon the conduct of their commercial enterprise despite their personal religious beliefs that may conflict with these governmental interests,” the judges wrote.
Officials with the Alliance Defense Fund, which has been representing Elane, said there would be an appeal.
“Americans in the marketplace should not be subjected to legal attacks for simply abiding by their beliefs,” said ADF Senior Counsel Jordan Lorence. “Should the government force a videographer who is an animal rights activist to create a video promoting hunting and taxidermy? Of course not, and neither should the government force this photographer to promote a message that violates her conscience. Because the Constitution prohibits the state from forcing unwilling artists to promote a message they disagree with, we will certainly appeal this decision to the New Mexico Supreme Court.”
It started in 2006 when Willock asked Elaine Huguenin to take pictures at her “commitment” ceremony. It was in 2009 when the ADF appealed a trial judge’s ruling in favor of the lesbians.
In reaching their decision the judges aligned photography with those that are “an essential service” under state law.
“Services, facilities and accommodations are available to the general public through a variety of resources. Elane Photography takes advantage of these available resources to market to the public at large and invite them to solicit services offered by its photography business,” the judges explained.
They cited the idea of a KKK rally asking an black photographer to supply his work, and the photographer refusing. Could then the KKK cite racial discrimination?
“The Ku Klux Klan is not a protected class,” opined the judges. “Sexual orientation, however, is protected.”
The judges continued, “The act of photographing a same-sex ceremony does not express any opinions regarding same-sex commitments, or disseminate a personal message about such ceremonies.”
They called the state requirement “a neutral regulation of commercial conduct” and said that it does not “infringe upon freedom of speech or compel unwanted expression.”
The judges wrote that the photography company’s claim of protection under the state constitution’s requirement that “no person shall ever be molested or denied any civil or political right or privilege on account of his religious opinion” was not applicable.
The judges suggested the interesting scenario of the photographer accepting the job, and vocally condemning the women while taking pictures.
“The owners are free to express their religious beliefs and tell Willock or anyone else what they think about same-sex relationships and same-sex ceremonies,” they said.
The district court decision had come from Alan M. Malott.
Malott’s ruling said the Christian owners were compelled to photograph the ceremony for Vanessa Willock and Misty Pascottini because of the state’s interest in preventing discrimination based on sexual orientation.
“Once one offers a service publicly, they must do so without impermissible exception,” the judge wrote. “Therefore, plaintiff could refuse to photograph animals or even small children, just as an architect could design only commercial buildings and not private residences. Neither animals, nor small children, nor private residences are protected classes,” he wrote.
When the district judge’s decision arrived, it seemed to substantiate the concerns of opponents of a federal “hate crimes” bill signed into law by President Obama during his first year in office that gives homosexuals special rights. Attorney General Eric Holder admitted in a congressional hearing that under the measure an attack on a homosexual would be dealt with differently than one on another citizen.
Benjamin Bull, chief counsel for the Alliance Defense Fund, noted at that time, “Homosexuals got exactly what they wanted. In the marketplace of ideas, one side has now been censored. This [situation] is exactly what homosexual activists have in mind.”
Interestingly, a subsequent poll revealed that almost half of Americans believe that Christians in the United States are being persecuted by homosexual “marriage” advocates who take legal action against them over their religious beliefs, and almost one in three Democrats believes such persecution is “necessary,” according to the alarming results of a new poll
The results are from a WND/WENZEL Poll conducted for WND by the public-opinion research and media consulting company Wenzel Strategies.
It found that 49.2 percent of all respondents consider the legal activism against Christians and their beliefs regarding homosexuality to be “persecution.”
The question was, “There is a trend developing in which gay activists are filing lawsuits against people who refuse to do business with them on moral/religious grounds – such as when a New Mexico photographer was sued by a lesbian couple for refusing to photograph their wedding. Knowing this, which of the following statements most closely represents what you think about this?”
More than two of three Republicans called it “persecution of Christians,” along with 45 percent of independents. Even 33.1 percent of Democrats had he same answer.
But 31 percent of Democrats, as well as 12 percent of Republicans and 24 percent of independents, said, “Such tactics are necessary.”
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