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.