by Mike Dorf
Professor Colb's latest Verdict column discusses the recent ruling by the New Mexico Supreme Court in Elane Photography v. Willock. As she explains, the NMSC rejected a free speech objection from a wedding photographer who was required by the state's public accommodations law to provide services on an equal basis to same-sex couples as to opposite-sex couples. As the column notes, my colleague Steve Shiffrin and I filed an amicus brief in the case, urging the court to rule as it did--so I am pleased with the outcome. Here I want to explore a possibility that Prof. Colb raises at the end of her column.
The photographer argued that she was not discriminating against anyone on the basis of sexual orientation; she just didn't want to be compelled to express approval (through flattering photographs) of same-sex marriage. The court rejected that argument partly on the ground that discriminating against same-sex marriage is tantamount to discrimination on the basis of sexual orientation. Prof. Colb notes the irony that New Mexico does not legally recognize same-sex marriage, so by the NMSC's own admission, the state discriminates on the basis of sexual orientation.
Is that a problem? Well, I think so. I was one of the signatories to briefs in various courts arguing that sexual orientation discrimination ought to trigger heightened scrutiny under equal protection doctrine. But presumably the NMSC disagrees--or at least has not yet had occasion to address the question under either the federal Constitution or the New Mexico constitution. Accordingly, although there is a deep irony in the result of Elane Photography, there is, technically, no inconsistency: The NM public accommodations law applies to photographers but not to the state itself in its sovereign capacity; thus, the state may discriminate on the basis of sexual orientation while private business owners may not.
This line of thought leads me to wonder about a slightly different case, one which Prof. Colb raises at the end of her column. She asks what would have happened if a wedding photographer refused to photograph a same-sex ceremony not on the ground that the photographer had a free speech objection to expressing tacit approval of same-sex marriage but on the ground that the photographer only photographs weddings, and a same-sex commitment ceremony in New Mexico is not a wedding. To make the claim at least somewhat realistic, let's imagine a photographer who runs a very popular multi-state wedding photography business in the western U.S. She cannot take all of the potential clients who seek her out so she only photographs same-sex weddings in states that recognize same-sex marriage (California and Washington), but not in those that do not (such as New Mexico). She does not photograph ceremonies for couples (whether opposite-sex or same-sex) who are entering into civil unions or domestic partnerships. Let's imagine that there are also many indicia that the photographer is not homophobic, including her record of donating to political groups that seek to legalize same-sex marriage in states that don't currently recognize it. When the photographer declines to photograph a same-sex commitment ceremony in New Mexico, does she thereby discriminate on the basis of sexual orientation under the NM public accomodations law?
One precedent that points in favor of finding discrimination here is Palmore v. Sidoti. In that 1984 ruling, the US Supreme Court held that a family court judge could not, consistent with equal protection, take into account the existence of societal prejudice against interracial couples in making a custody determination against a parent who was cohabiting with a different-race partner. Even though the SCOTUS was willing to accept the trial judge's assertion that he was not prejudiced against interracial couples, and even though the SCOTUS was further willing to acknowledge that a child raised by an interracial couple would in fact face prejudice as a result thereof, the Court unanimously found that this was an impermissible basis for a custody determination. As CJ Burger wrote for the Court: "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."
That strikes me as right, but is the converse true? Even though our hypothetical photographer, like the judge in Palmore, is not herself acting on bias, here the public bias (in the state laws that don't recognize same-sex marriage) is being given indirect effect by her private decision to use a criterion that incorporates them. As in Palmore, so too here, the actor subject to the equality norm is making the invidious classification her own, and so we could reasonably conclude that she has violated the norm.
To be sure, the New Mexico Supreme Court is not, strictly speaking, bound to apply the Palmore logic--developed in a case involving construction of the federal equal protection guarantee--in interpreting the New Mexico public accommodations law. And while I find the Palmore logic appealing in a case like Palmore itself, perhaps flipping public and private in the way that the photographer hypothetical example does should result in a different approach.
To test that possibility, let's imagine a case in which the equities seem different. Suppose that some state anti-discrimination law states that no one may be denied employment (in some broad category of jobs) based on his political opinion. Suppose further that a private security firm to which the anti-discrimination law applies has a policy forbidding the hiring of anyone who has a criminal record. Now imagine that the firm rejects an otherwise-qualified job applicant on the ground that he was convicted of Holocaust denial in Germany. Let's assume that the security firm could not, consistent with the state anti-discrimination law, refuse to hire the applicant based on his statements denying the Holocaust. Does the state anti-discrimination law also forbid the firm from refusing to hire the applicant due to his criminal record, where doing so effectively incorporates the forbidden criterion of political opinion? If the Palmore logic applies, then yes. But should the Palmore logic apply here?
My inclination is to say no. The security firm's policy of not hiring employees with criminal records is reasonable and not in any obvious way a pretext for circumventing the anti-discrimination law. It just happens that in this particular case the application of the no-criminals policy invokes a criterion that the state's public accommodations law forbids.
So where does that leave us in the main hypothetical example? I would still apply the Palmore principle because even though the photographer's decision to use the legality of a marriage is (by hypothesis) not a pretext for homophobia, it does strongly correlate with sexual orientation discrimination. By contrast, the correlation of the security firm's policy on criminal records with suppression of political speech is nearly completely random.