The Constitutional Right to Conscript a Wedding Photographer


Elaine Huguenin, a New Mexico photographer, wants the Supreme Court to hear her challenge to a state anti-discrimination law that compels her to shoot gay weddings even though she finds them morally objectionable. Huguenin, who faced a discrimination complaint after turning away a lesbian couple, argues that the law violates her First Amendment right to freedom of speech by forcing her to endorse a message with which she disagrees: that gay marriages should be celebrated. In a column about the case, New York Times legal writer Adam Liptak claims "there are constitutional values on both sides of the case: the couple's right to equal treatment and Ms. Huguenin's right to free speech." But the Constitution guarantees equal treatment by the government, not by private individuals or organizations. The 14th Amendment cannot justify requiring photographers to treat all couples equally any more than the First Amendment can justify requiring publishers to treat all authors equally. By erroneously suggesting that deciding Huguenin's case means choosing between competing "constitutional values," Liptak lends cover to the American Civil Liberties Union, which in this case is arguing that Huguenin's civil liberties should be overridden by a principle that cannot be found in the Bill of Rights:

I asked Louise Melling, a lawyer at the American Civil Liberties Union, which has a distinguished history of championing free speech, how the group had evaluated the case.

Ms. Melling said the evaluation had required difficult choices. Photography is expression protected by the Constitution, she said, and Ms. Huguenin acted from "heartfelt convictions."

But the equal treatment of gay couples is more important than the free speech rights of commercial photographers, she said, explaining why the A.C.L.U. filed a brief in the New Mexico Supreme Court supporting the couple.

"This is a business," Ms. Melling said. "At the end of the day, it sells services for photographing weddings. This is like putting up a sign that says 'Heterosexual Couples Only.' "

Wouldn't someone who posted such a sign be exercising his constitutional rights to freedom of speech and freedom of association? The ACLU may not like the message, but that consideration has never stopped the organization from defending the constitutional rights of Nazis and Klansmen. If it cannot bring itself to stand up for Huguenin's rights, it should at least have the decency to sit this one out.

Scott Shackford discusses earlier stages of the case here and here.