3Sutin, Thayer & Browne, P.C.Kerry C. KiernanLynn E. Mostoller Albuquerque, NMfor Amicus Curiae New Mexico Small BusinessesACLU of New MexicoLaura Louise Schauer IvesAlbuquerque, NMLGBT & AIDS Project, ACLU FoundationJoshua A. Block New York, NYfor Amici Curiae American Civil Liberties Union Foundation and American CivilLiberties Union of New Mexico
By enacting the New Mexico Human Rights Act (NMHRA), NMSA 1978, §§ 28-1-1to -13 (1969, as amended through 2007), the Legislature has made the policy decision to prohibit public accommodations from discriminating against people based on their sexualorientation. Elane Photography, which does not contest its public accommodation statusunder the NMHRA, offers wedding photography services to the general public and posts its photographs on a password-protected website for its customers. In this case, ElanePhotography refused to photograph a commitment ceremony between two women. Thequestions presented are (1) whether Elane Photography violated the NMHRA when itrefused to photograph the commitment ceremony, and if so, (2) whether this application of the NMHRA violates either the Free Speech or the Free Exercise Clause of the FirstAmendment to the United States Constitution, or (3) whether this application violates the New Mexico Religious Freedom Restoration Act (NMRFRA), NMSA 1978, §§ 28-22-1 to-5 (2000).
First, we conclude that a commercial photography business that offers its servicesto the public, thereby increasing its visibility to potential clients, is subject to theantidiscrimination provisions of the NMHRA and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way asif it had refused to photograph a wedding between people of different races.
Second, we conclude that the NMHRA does not violate free speech guarantees