Photography as speech

New Mexico has taken a leading position in the advancement of the rights of gay couples to marry.  Recently, the state's Supreme Court also ruled that an Albuquerque photo studio, Elane Photography, could not refuse services to a gay couple wanting pictures of their wedding.  Elane Photography's owners had contended that they had a right to refuse services based on their religious beliefs regarding homosexual behavior.  The NM Supreme Court decision affirmed the principle that goods and services cannot be denied based on such discrimination.

A couple lawyers weighed in on the case recently in a letter reproduced in the Wall Street Journal.  Eugene Volokh and Ilya Shapiro asserted that the New Mexico ruling impinges on the company owner's right to freedom of expression or choice not to express some idea as represented by their photographic products.  The U.S. Supreme Court will soon make a decision whether or not to take up the case, and Volokh and Shapiro's point of view would no doubt play a role the proposed proceedings.

The problem I see with the position advanced by Volokh and Shapiro is that it equates the work of a commercial studio portraitist with that of a photojournalist, based primarily it seems on the use of similar image making technology.  That seems to me a pretty tenuous connection.  A photojournalist is clearly using the technology to express ideas in a manner that is constitutionally protected.  A commercial photo studio is doing no such thing; they are not expressing ideas about truth and justice, but rather producing a product designed to make their clients look as good as possible according to conventional social norms.  That is essentially the same objective sought by businesses selling toothpaste and beauty products.

There is a long history in the U.S. of efforts by the religious right to buttress discriminatory practices with appeals to ideas of religious freedom.  Racial segregationists, for instance, asserted it was God's will that the races should live separately, and for a time they were able to get tax exemptions for private segregated schools.  Richard Nixon, a Republican, did away with that exemption.  His party has since shifted further rightward, supporting an endless series of challenges chipping away at the idea of equal rights under law.  There is a good over-view of this history in a recent interview with Columbia Law School professor, Katherine Franke, at the Salon.com site.

Update:
WASHINGTON -- The Supreme Court declined Monday to decide if a New Mexico wedding photographer was within her rights when she refused to work at a same-sex ceremony.

The denial leaves standing a decision by the state's highest court that went against the photo studio...

   - Richard Wolf, USA TODAY 9:52 a.m. EDT April 7, 2014