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Photography Businesses Don’t Have a First Amendment Right to Discriminate

Joshua Block,
Senior Staff Attorney,
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April 7, 2014

Today the Supreme Court turned away a photography business’s claim that it had a First Amendment right to break New Mexico public accommodations law and discriminate against gay customers.

No court has ever held that a business has a First Amendment right to discriminate in the commercial marketplace. For over 150 years, states have passed public accommodation laws saying that if a business voluntarily decides to open its doors to the public, they can’t pick and choose which customers they will serve.

But Elane Photography – which sells commercial photography services for weddings and other events – has argued that it does not have to follow the normal rules that apply to every other business in New Mexico because taking photographs is a form of protected speech, which requires artistic creativity. If Elane Photography were right, then photography businesses would have a First Amendment right to discriminate against any customer for any reason. Under Elane Photography’s argument, an interracial family could walk into the portrait studio in the local shopping mall and be turned away because the photographer does not want to take a picture of interracial couples.

The same groups that have been backing recent efforts to give businesses the right to turn away gay customers have been eagerly following the Elane Photography case because they know that Elane Photography’s argument would create a gigantic loophole in the protection of public accommodation laws. Numerous business interactions could be characterized as containing an expressive element.

Already, bakeshops that do not want to sell cakes to gay customers are describing themselves as “cake artists” in order claim a similar First Amendment right.

When you make the decision to hold yourself out as a business that serves the general public, you have to be willing to actually serve the general public, which includes a diverse group of people whose values and beliefs may be different than the values and beliefs of the business owner. Selling commercial wedding photography services, like selling a wedding cake or a flower arrangement, does not mean that a business owner endorses a customer’s marriage. Everybody has the right to express their views on whatever subject they wish, and that includes business owners. But every business has to play by the same rules in the public marketplace.

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