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Photos as messages: A new constitutional case

On the premise that taking photos is a form of story-telling — recall the old idea about how many words a picture is worth — an Albuquerque studio on Friday asked the Supreme Court to protect its owners from having to send the message that the uniting of same-sex couples in marriage-like ceremonies is acceptable.

The new case of Elane Photography v. Willock does not ask the Court to rule on any right of gays and lesbians to marry, but it does seek a decision on how far a state may go to protect same-sex couples from discrimination in the marketplace.  The New Mexico Supreme Court ruled in August that the studio violated a state anti-discrimination law by turning away a request to take photos of a same-sex commitment ceremony.  (The case has been given docket number 13-585.)

As more legislatures — including Congress — pass or at least consider bills to outlaw discrimination against homosexuals, the spread of marriage or civil unions among gays and lesbians is now raising more issues about how those laws apply to such relationships.  The Elane Photography case could help provide an answer.

The owners of the Albuquerque studio — Elaine Huguenin and her husband John Huguenin — told the Court that they “object as a matter of conscience to creating pictures or books that will tell stories or convey messages contrary to their deeply held religious beliefs.” Among their beliefs, they said, is that marriage “is the union of a man and a woman.”

While they would not turn away gays and lesbians as customer simply because they are homosexuals, the owners said, they will decline to take photos of homosexuals that will express a perception of activity in which they engage that the Huguenins do not themselves accept or support.

The nature of their business is such, the petition argued, that their work is not just “aim and snap,” but involves a series of creative steps of posing, editing, and presentation that together tell a specific story.  If they are compelled by government to perform those steps in a way that contradicts their religious views, that is a form of “compelled speech” that violates the First Amendment guarantee of free speech.

As the case went through lower courts, the Huguenins also argued that enforcing the New Mexico law against them in this factual setting would violate their right to freely exercise their religion as they wish, another First Amendment claim.  That claim is not repeated in the petition filed Friday.

Elaine Huguenin is the owner, the petition said, who engages in the expressive activity that results in photographs and albums of the activity of which the studio makes images.   She “is an artist with a degree in photography,” and it is her artistic expression that she puts into “engagement pictures, graduation pictures, portraits, weddings, and miscellaneous events.”

As the New Mexico public accommodations law is now applied to her work, the petition said, it will interfere with the expressive activity of photojournalists in general, who engage in the same kind of expression.  Quoting a book on wedding photography, the petition said: “Above all, the skilled wedding photojournalist is an expert storyteller.”

As an example of how Ms. Hugenin does her work, the petition said: “By cropping out a playful look on the face of a young child standing behind a kissing couple, Ms. Huguenin singlehandedly transforms a picture’s message from humor to romance.”

After she has “choreographed” those who she will be photographing, and has taken the pictures, she “spends three to four weeks” studying the images.  She then begins selecting “the pictures that best suit her artistic tastes and expressive goals, and she discards the rest.”   For those she chooses to keep, she “crops and edits each one to accentuate her desired message.” The end result is a picture book telling Ms. Huguenin’s story of the event, the petition summed up.

This case got its start when an Albuquerque woman, Vanessa Willock, contacted Elane Photography to ask whether it would take pictures of her commitment ceremony to another woman, Misti Collinsworth.   Ms. Huguenin replied that the studio would only take photos of “traditional weddings,” and turned away the request.

Later, the couple hired a different studio, and the commitment ceremony then went ahead.  Ms. Willock then filed a complaint of discrimination under a New Mexico law that protects against discrimination based on sexual orientation.

New Mexico does not now have a law or constitutional provision that deals with same-sex marriage, either way.   However, the state supreme court is currently considering test cases on whether such marriages will be allowed in the state.

Recommended Citation: Lyle Denniston, Photos as messages: A new constitutional case, SCOTUSblog (Nov. 8, 2013, 2:24 PM),