Businesses Do Not Have a License to Discriminate

Yesterday, the ACLU and the ACLU of New Mexico filed an amicus brief in Elane Photography, LLC v. Willock, an important antidiscrimination case pending before the New Mexico Supreme Court. Elane Photography is a wedding photography studio that advertises its services to the general public but refuses to take pictures for wedding or commitment ceremonies involving same-sex couples. New Mexico is one of 21 states (plus the District of Columbia) that prohibit businesses who hold themselves out to the general public from discriminating against customers based on their sexual orientation. But Elane Photography argues that the law cannot be applied to its services because – unlike the services provided by a restaurant or retail store – photography is a form of expression and forcing Elane Photography to provide services on an equal basis would therefore unconstitutionally “compel speech.”

We filed our brief to explain why the First Amendment does not give a commercial business license to offer services to the general public and then – in violation of a state’s public accommodation law – refuse to provide photography services to particular customers based on their race, sex, religion, sexual orientation, age, disability, or any other characteristic. Under Elane Photography’s proposal, customers could walk into the photography studio at Sears or JCPenny for a family portrait and be told they cannot have their picture taken because they are a Latino family, or a Jewish family, or a family with a child who has Down Syndrome. A photography studio could tell an interracial family that taking their portrait would create expression celebrating their interracial relationship and that it would violate the studio’s First Amendment rights to participate in that expression.

And this right to discriminate would apply not only to photography studios but also to countless other businesses that use words, pictures, or other forms of creative expression, including court reporting services, translation services, graphic-design agencies, architecture firms, sound technicians, print shops, and dance studios, almost any good or service involving computer code, makeup artists, hair stylists, florists, and countless other services that cater to the general public.

For 150 years, states have had public accommodation laws requiring businesses that choose to offer goods and services in the commercial marketplace to serve customers equally. Once a business decides to advertise its services to the public at large, it gives up the prerogative to pick and choose which customers to serve – even when that commercial service involves some form of speech or expression.

More generally, this case is one of many recent instances in which organizations and businesses have claimed a constitutional right to discriminate against LGBT customers in a variety of goods and services.   In Vermont, the meeting and events director at the Wildflower Inn told a same-sex couple that they could not have “gay receptions” at the resort.  In New Jersey, the owner of a wedding dress shop refused to sell a woman a wedding dress when she learned that she was marrying another woman.  In Illinois, a bed and breakfast turned away a couple who asked to have a civil union reception at the facility, and then urged the couple to repent for their sins.  In Hawaii, the owners of a hotel refused even to rent a room to a same-sex couple.

In all of these states, businesses are barred by state law from discriminating against customers based on their race, religion, sexual orientation, or religion, among other protected categories. But the owners of these businesses have claimed that they do not have to follow those laws because of their personal religious beliefs.

We do not let photography businesses – or any other business – turn away customers because of the their race, or because they are divorced, or because they use birth control.  The same principles apply when the customer is a same-sex couple.  Everyone is entitled to their own religious beliefs, but when you operate a business in the public sphere those beliefs do not give you a right to discriminate.

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Gutsy of the ACLU to take that on. And we thank you.


Too right!!!!! I long for the day when religion is no longer used as an excuse to be hateful to people. I bet this photography studio wouldn't bat an eye at serving a divorced client who was getting remarried? If one adheres to the Bible (and I do not), a sin is a sin in the eyes of God and I do believe that divorce is considered a sin.....

Elanes photo bu...

I can’t believe that in this day and age that people are still discriminating against American citizens. But if Elane refuses to take photos of all of the American public then I believe it’s time for them to close their doors.
Here in the Sparta and Tomah areas of Wisconsin I have had to face down a great deal of white supremacist who believe that they can dictate who marries whom and furthermore that they have a right to infringe on civil rights by delaying service running campaigns to try and disrupt the lives of those that don’t represent the white supremacist family tree that they hold so near and dear.
We need more people to stand up and expose these groups where they exist. And furthermore we need the state representatives to take action, because if you look at the way they employ people there are few minorities in management positions. That is a big red flag in this area. And it’s a very undesirable trait of any community. Wake up people learn to evolve or you just may find yourselves extinct like the great dinosaurs.
We are a nation of diverse individuals, and people have the right to marry and choose their mates. You don’t like it that’s your opinion but to spit in the face of federal law and violate their civil liberties is not your right or you just might find yourselves at the end of a very large federal law suit.


Would the ACLU support Elaine's right to publicly express her views about same-sex weddings even at the wedding itself?


This is discriminating against the civil rights AND conscience of the business owner. This couple could have went to ANY other photography studio but they didn't. Why? Because the homosexual agenda is to force their belief on others who don't believe the same as they do; they are guilty of the exact crimes they're alleging against the business owners. This is disgusting. There's coming a day though when Jesus Christ will return and judge every person by the same "Book" so many loathe. I pray they come to know Christ the loving savior before Christ the judge returns.


Jesus saves.


The ACLU advocates a position that takes the rights of one group at the others expense of others. The First Amendment's free speech protections span a gamut that allow a person to say what they want (albeit a few exceptions), but also prohibit the government from compelling speech from its citizens. It is well settled law that expressive activity is pure speech; artistic services are inherently expressive and merit the protection under the First Amendment. The government may not compel affirmance of a belief with which the speaker
disagrees, even if the stated motivation is to ―produce a society free
of discriminatory biases.

I support the ACLU mission statement " defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country." However, the ACLU picks and chooses which parts of the constitution to defend. Here, they choose to support a gay person's supposed right to photography over free speech. This is abhorrent and this is why the ACLU needs to change their mission statement from defender of the constitution to protectors of the gays. There is nothing wrong for standing up for the little guy, but the ACLU never stands up for the little business owner that wants to voice a political opinion in a non-violent non-cooperation manner unless the speech is about a morally perverse ideology. Simply, the ACLU is full of degenerates who only pick liberal gay fights and who fail to fight the true battles of the constitution. Please ACLU, change your mission statement--it's insulting.

When it attempts to do so, it
―invades the sphere of intellect and spirit which it is the purpose of
the First Amendment to our Constitution to reserve from all official


Yes, they're forcing their belief on others. Actually, they are not. They are not asking them to perform the commitment ceremony, merely to take photos of the event since they are photographers who advertise themselves to the general public. I find your comment amusing since the Bible tells us not to judge others, yet Christians constantly are.


I look forward to the case the ACLU will one day bring against the black B&B owner who refuses to host a regional gathering of the KKK, or the cruise line that refuses tickets on their "singles cruise" to the poly-amorous couple trolling for a third for some ocean-going fun, or the Hispanic National Bar Association when they refuse membership to some pasty-white Norwegian.

In a free society, the government must not compel the provision of goods or services by one person to another.


Let's turn this around. An owner of a photography company happens to be gay (there are actually a lot of gay photographers). Someone calls (not knowing that he is gay) and asks if he will take photos of the anti-gay rally coming up in his city. He decides this is against his beliefs and declines service and politely refers said person to another photographer. According to your blog, this gay photographer should be FORCED to take the order, suck it up, and go take the pictures anyway, even though the event is totally against what he believes is moral or appropriate. Is this what you are saying? I REALLY want an answer to this question from you!

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