Rights in Collision?

November 20, 2013

I have mentioned a couple of times that a marriage equality case has been percolating through the courts of New Mexico. This state is said to be the only one left to have no law of any kind either allowing same-sex marriage or prohibiting it – no legislation,no constitutional provision, no judicial decree; so a number of county clerks have taken matters into their own hands and issued licenses to same-sex couples, and have been upheld by local courts. An appeal against these decisions has been argued before the state Supreme Court, which is expected to rule on it sometime in the near future.

Meanwhile, as I learned from this article in yesterday’s New York Times, for 10 years New Mexico has had a law prohibiting discrimination on the basis of orientation, and a few months ago the above-mentioned Court upheld that law in the case of  a wedding photographer who claimed her religion would not let her accept the job of photographing a same-sex commitment ceremony (one with all the trappings of a wedding). Her argument was based not only on the state’s religious freedom act, which the Court held inapplicable because the State was not a party to the action, but on freedom of speech – photography being an art form, therefore involving an expressive element such that she felt that applying the law to her would in effect compel her to make a statement she did not agree with. Rather like the people who object to New Hampshire’s “Live Free or Die” license plates. The Court held, sensibly in my opinion, that no one would construe a commercially produced wedding album (or commitment ceremony album)  as expressing the personal opinion of the photographer. She was asked to document the event, not to approve it. Still, the question was worth raising and considering seriously; it is not impossible that someday a line may be crossed in the direction of “compulsory speech,” though I don’t think it was crossed in this case. (Another set of cases involving similar free-speech arguments is that involving the increasingly gory warning labels cigarette makers and the like are being required to put on their products…)

There’s a fine discussion of the case here. It commends the opinion of Judge Bosson, also cited in the Times article, which concurs in the result but expresses some sympathy for the appellant’s position.

The fact that this decision was unanimous bodes well, I think, for the equal marriage case in the pipeline, though the law is a subtle thing and it would be rash to venture a firm prediction…

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