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Businesses Do Not Have a License to Discriminate

Joshua Block,
Senior Staff Attorney,
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December 18, 2012

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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