I think this use of the word “private” was intended to convey a “non-governmental” meaning – as in, this is not government action, but a private citizen’s action.

“The state’s interest in eradicating sexual orientation discrimination in the private sphere…”

Whoa, this is NOT the private sphere, it is the PUBLIC sphere. Commerce is public. That’s the whole point: the state most certainly can regulate public commerce for the general welfare of society.

The Supreme Court has often held that private parties can raise free speech or religious-freedom objections to lawsuits by private parties, see Hustler Magazine v. Falwell (1988) (private lawsuit for intentional infliction of emotional distress was barred by First Amendment), Boy Scouts v. Dale (private lawsuit for sexual orientation discrimination barred by First Amendment), and the same principle applies to state “human-rights” agencies, see Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995) (state agency could not fine employer for religious harassment based on offensive speech, since it was protected by state constitution’s religious-freedom guarantees).

So is the trial court’s claim that only natural “persons” can rely on religious freedom. Many Supreme Court cases involve religious freedom claims by religious groups, and appeals court decisions uphold the religious freedom claims of religious colleges and other corporations. Good News Club v. Milford Central School, 533 U.S. 98 (2001); Columbia Union College v. Oliver, 254 F.3d 496 (4th Cir. 2001)

The State of New Mexico’s position reaks of hypocrisy.

It is punishing a wedding photographer for refusing to photograph what is NOT a wedding, but a “commitment ceremony.” The State of New Mexico treats non-married “committed” couples as different from married couples for a host of purposes, belying any claim that they are legally analogous to marriages.

Yet, now the State of New Mexico, in the form of the Human Rights Commission, claims that the commitment ceremony IS akin to a wedding, and must be photographed as such — and any refusal counts as discrimination against gays.

Moreover, elsewhere, the State of New Mexico acts as if same-sex commitments are not analogous to straight ones, much less marriages, since the State itself bans gay marriage. Maybe the State should practice what it preaches and stop banning gay marriage.

First, it cannot legally be treated as compelling for purposes of this case because the state of New Mexico, which bans gay marriage, itself discriminates based on sexual orientation in a number of contexts (not just in not treating civil-commitment ceremonies as being analogous to marriages, assuming arguendo that that is discrimination), so it is barred from arguing that eradicating discrimination based on sexual orientation is a compelling interest. That’s what the Supreme Court made clear in its Lukumi decision, where it held that a local government could not treat an important interest as compelling where it inconsistently failed to advance that interest, even when in contexts where doing so would have cost nothing in terms of First Amendment rights. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546–47 (1993) (“Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling”).

So holding Elane Photography liable can’t be justified under the strict scrutiny mandated by the First Amendment and the New Mexico Religious Freedom Restoration Act.

(Given its own ban on gay marriage, the State of New Mexico’s accusing Elane photography of discrimination is like the pot calling the kettle black).

Second, eradicating purely private sexual-orientation discrimination is simply not, legally-speaking, a compelling state interest outside the employment context. See Curran v. Mt. Diablo Council of Boy Scouts of America, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (boy scouts were protected by First Amendment freedom of expressive association against being forced by California public accommodation and gay-rights laws to include gay people as members and leaders, since being forced to do so did not serve a compelling state interest), aff’d, 952 P.2d 218 (Cal. 1998).

More importantly, there is an additional, alternative First Amendment defense that applies here, unrelated to freedom of religion: freedom from compelled speech. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).

Photography is inherently expressive, as the courts have noted in giving copyright to photos as a matter of course; most businesses (say, selling hot dogs) are not. Ruling in favor of the photographer is not only consistent with the statute (which forbids discrimination based on customers’ sexual orientation, not based on the ceremony they wish to capture on film), but even if that were not the case, ruling in favor of the photographer would not carve out a big exception to the statute’s reach or vitiate any important state interests.

Since the photography is expressive, the case should be governed by the U.S. Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), which held that a state’s gay-rights law and public-accommodation law could not be used to force an expressive activity (a parade, in that case) to embrace a message of support for gay causes, because doing that violated the First Amendment (even though the parade organizers merely wished to avoid talking about gay issues, and did not claim to harbor any anti-gay beliefs that would be abridged by the forced
inclusion of a gay pride contingent in the parade).

A photographer of this sort is creating expression, not just handing over a piece of fried chicken or a room key. Artists are generally free to express whatever they want, offensive (viz. ‘Piss Christ’), saccharine (viz. Kinkaid), or wonderful (viz. Michaelangelo). A government’s telling the artist what he is to express–compelled speech–is what the Politburo and National Socialist Artists Union were all about.

Here, I believe, the court erred by transgressing on a fundamental right guaranteed by the US Constitution. Upholding a fundamental right has to take priority over a statutory right.

The statute in question enumerates 5 different kinds of public accommodations – none of which could possibly include wedding photographers.

I can see the necessity for having anti-discrimination laws that affect hotels, common carriers, restaurants and the like because these businesses provide services that are essential to the public at large (to borrow a phrase from the photographer’s argument). But here, I think the rights of the photographer trump any public good served by making her take business that she does not want.