Fantasy Supreme Court: How an appeal from the Supreme Court of New Mexico's ruling on Elane Photography might be decided

Some people play Fantasy Football. I like to play, Fantasy Supreme Court. Here, I have written a plausible summary opinion, anticipating that there will be an appeal to the United States Supreme Court from the ruling by the Supreme Court of the State of New Mexico in the recent case, Elane Photography, LLC v. Vanessa Willcock:

This court has repeatedly found that generally valid public accommodations laws are constitutionally barred from intruding on the protected rights to freedom of expression and freedom of association.

In Boy Scouts of America v. Dale, we held that applying New Jersey's public accommodations law to ... a private, not-for-profit organization, engaged in instilling its system of values in young people, violated the Boy Scouts' First Amendment right of expressive association.

In Hurley et al v. Irish-American Gay, Lesbian and Bisexual Group of Boston, we held that state courts' application of Massachusetts public accommodations law to require private citizens who organize a parade to include among the marchers a group imparting a message that the organizers do not wish to convey violates the First Amendment.

In the instant case, the Supreme Court of New Mexico correctly observed that "The United States Supreme Court has never found a compelled-speech violation arising from the application of antidiscrimination laws to a for-profit public accommodation." In fact, we have never had occasion to consider such a claim. The question before us today, a matter of first impression, is whether as an "ordinary public accommodation" and a "clearly commercial entity," Elane Photography, may be compelled by law to produce photographs "for hire in the ordinary course of its business as a public accomodation," notwithstanding its assertion that the compelled photographs are contrary to the beliefs of the photographer.

The Supreme Court of New Mexico is correct that this court "has suggested that public accommodation laws are generally constitutional." Commerce, in general, does not inherently contain an expressive message. Every day, people shop in grocery stores, travel by train, airplane, bus, taxi, or in private cars, spend the night in hotels or at resorts, rent dwellings, buy and sell homes, eat at restaurants, without thereby expressing any kind of message that constitutes protected speech. That individuals have the protected right to access all these commercial goods and services, without reference to race, creed, color, national origin, religion, and in many states, sexual orientation, is well established.

As we noted in Hurley, "At common law, innkeepers, smiths, and others who 'made profession of a public employment,” were prohibited from refusing, without good reason, to serve a customer'." This is not a peculiarly modern legal standard. A 19th century English judge wrote that the rule was “[t]he innkeeper is not to select his guests[;] [h]e has no right to say to one, you shall come into my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants.”

Congress has been explicitly authorized to regulate interstate commerce, and the general police powers retained by the states certainly include the regulation of anyone doing business within a state. But some goods and services offered to the general public in commerce are in essence the expressive work of the individuals offering their work for sale. The fact that goods or services are offered for sale does not ipso facto render them nonexpressive.

If a member of the American Nazi Party had found Pablo Picasso running a commercial art gallery in New York, and sought to commission a painting glorifying the Nuremberg Party Congress, done to approximately the same size and style as "Guernica," one can hardly entertain the argument that any conceivable regulation of commercial activity could have compelled him to accept the commission. We agree with the Supreme Court of New Mexico that a political party, respected or despised, is not a protected class under the state's Human Rights Act. But the relevant point is that even if it were, the state would be restrained by the First Amendment from requiring the artist to accept the commission.

Elane Photography submitted to the courts below "that in the course of its business, it creates and edits photographs for its clients so as to tell a positive story about each wedding it photographs, and the company and its owners would prefer not to send a positive message about same-sex weddings or same-sex marriage. Elane Photography concludes that by requiring it to photograph same-sex weddings on the same basis that it photographs opposite-sex weddings, the NMHRA unconstitutionally compels it to “create and engage in expression” that sends "a positive message about same-sex marriage not shared by its owner."

This court finds, consistent with our precedents, that this argument has considerable merit. We can find no constitutional distinction between the government compelling an individual to "speak the government's message," and the government compelling an individual to express the message of a private commercial contracting party. The constitutional issue is whether the government has compelled an individual to express a message that they would not willingly express as their own. Thus, contrary to the reasoning of the Supreme Court of New Mexico, our precedents in West Virginia State Board of Education v. Barnette, and Wooley v. Maybarn are very much on point.

As we wrote in Barnett, "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." It is the right of the individual's speech to be free of compulsion, not the motivation for compulsion or the origin of the enforced conformity, that is relevant to constitutional protection.

Whether to license same-sex couples as marriage is a hotly debated political question at this time, and has been the subject of litigation which has been resolved one way in some states, differently in other states, and in many states has yet to arise for disposition. It is a question on which sincere passions have clashed, and sincere conflicting moral assertions have been offered.

New Mexico, while making no such provision for a marriage license, has chosen to make sexual orientation the basis of a protected class, and has construed its Human Rights Law to require Elane Photography to offer its services to cover a "commitment ceremony" that has no specific status under state law, but which, is entered into by two members of a protected class. Elane Photography offers that it has not refused services to members of the protected class, per se, but has refused to participate in the expressive message of the ceremony itself, recording the ceremony, and telling a positive story about it.

Again, our decision in Hurley is applicable. Elane Photography is not a parade. It has a fixed business location, operates year round, and has undisputed commercial purpose, as well as obvious expressive artistic purpose. But, as with the parade organizers in Hurley, "Petitioners disclaim any intent to exclude homosexuals as such."  No individual member of GLIB [Gay and Irish Lesbian Brigade] claimed "to have been excluded from parading as a member of any group that the Council has approved to march." No individual claimed to have been refused services by Elane Photography on the assumption that they are homosexual.

Instead, in both cases, the disagreement goes to participation in an expressive event, in Hurley "the admission of GLIB as its own parade unit carrying its own banner," and in the present case, the participation of the photographer in expressing a positive message about a particular ceremony.

It is a well established general rule that "the speaker has the right to tailor the speech," a rule not restricted to the press but "being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers." In Hurley we even compared the principle of autonomy to control one's own speech to the work of a composer -- a field of expression not dissimilar to an artistic photographer. "But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government’s power to control." The specificity of a parade does not limit application of the general First Amendment principles on which Hurley rests to the facts presented here.

The First Amendment and our precedent expounding the meaning and application of its principles forbid New Mexico from applying its Human Rights Law to compel Elane Photography to participate in a commitment ceremony and to craft a positive message from those photographs. Turning again to the broad principles we enunciated in Barnett:

"Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. ...  Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard."

New Mexico's HRA, as applied by the Supreme Court of New Mexico, does far more than "mandate that if Elane Photography operates a business as a public accommodation, it cannot discriminate against potential clients based on their sexual orientation." The HRA, as applied, is compelling Elane Photography to actively participate in crafting an expressive message extolling a same-sex commitment ceremony, a message that is, rightly or wrongly, repugnant to the compelled photographer.

Several cases cited by the Supreme Court of New Mexico from the precedents of this court are inapposite. Rumsfeld et al. v. Forum for Academic and Institutional Rights, Inc, et al. concerned conditions set by the government for receipt of government funding, which this court held was not compelled speech. This has no bearing on facts which plainly show that the State of New Mexico is compelling expressive speech. While the law schools in Rumsfeld faced loss of government funds if they failed to host military recruiters, they were not compelled to actively participate in promoting the recruiter's message, nor did any law require them to host the recruiters at all.

PruneYard Shopping Center v. Robins concerned access to terrain that was, to all intents and purposes, operated as an extension of the public square, and again, involved no participation by shopping center owners in crafting or distributing any expressive message. If Elane Photography is located in a shopping center, a fact not before this court, it could not, e.g., prevent leafleting in the shopping center parking lot by organizations that disapproved of its refusal to photograph the commitment ceremony in question here. But that is not the issue before this court.

This court agrees with the Supreme Court of New Mexico that there is no "exemption from antidiscrimination laws for creative or expressive professions." When a generally valid law conflicts with a well established constitutional protection, any exception must be narrowly drawn based on specific facts. The state's Human Rights Law is valid, except when, as applied, it compels involuntary speech or expression.

The Supreme Court of New Mexico observes that "Bakeries also offer services for hire, and wedding cakes are famously intricate and artistic. Courts cannot be in the business of deciding which businesses are sufficiently artistic to warrant exemptions from antidiscrimination laws." Indeed not -- but that is not necessary. A baker who bakes a standard wedding cake may or may not be aware of the sexual orientation of the customer placing the order, or the sex of their fiance. Even if known, it is irrelevant. However, if the baker is asked to incorporate into the decoration a unique, individualized, expressive message that the baker finds repugnant, the baker may refuse to participate in crafting and espressing that message. It would be no different if a baker were asked to bake a custom order cake in the shape of a Ku Klux Klan hood.

The constitutional issue is not the goodness or purity or the compelled speech, the social approval or disapproval of the compelled speech, the virtue or depravity of the compelled speech, all of which may vary with the eye of the beholder. The constitutional issue is compelling individual participation in crafting and expressing whatever the message might be. It is putting words in the mouth of the unwilling individual.

It is not the sexual orientation of the customer, but the nature of the event and the expressive message that event is obviously intended to convey, that Elane Photography proffers as the reason to refuse to photograph the commitment ceremony. If Elane Photography were hired to take class photos, and said "not that one -- they're gay," nothing in the First Amendment would constrain the HRA from requiring Elane Photography to take the photo.

It is worth noting that no claims of religious exemption made by Elane Photography are considered or decided in this opinion. As we observed in Barnette, "Nor does the issue, as we see it, turn on one's possession of particular religious views or the sincerity with which they are held. While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual. [Footnote 15] It is not necessary to inquire whether nonconformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty."

There is no power in any government body subject to the First Amendment to compel Elane Photography to participate in the commitment ceremony at issue here. It is a restraint even on well-intended and generally valid public accommodations laws, that "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."

The State of New Mexico may forbid Elane Photography to turn away a customer based on the customer's sexual orientation, but it may not compel Elane Photography to craft and express a message extolling any sexual orientation or celebrating a same-sex commitment.

New Mexico's HRA, as applied in the circumstances of this controversy, offers disturbing hallmarks of a rationale we rejected in Hurley, "that the ultimate point of forbidding acts of discrimination toward certain classes is to produce a society free of the corresponding biases." But "if this indeed is the point of applying the state law to expressive conduct, it is a decidedly fatal objective." Even in a commercial context, if the HRA is "used to produce thoughts and statements acceptable to some groups or, indeed, all people" then the HRA, as applied, "grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis."

The decision of the Supreme Court of New Mexico is reversed, and remanded for further proceedings not inconsistent with this opinion.

Now, one may well ask, what are the chances The Nine will actually rule more or less this way. I note first that the Hurley decision was unanimous, and the nine unanimous justices were Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, the same justices who decided Lawrence v. Texas. That means the five justices who formed the majority in Lawrence, plus the one justice who concurred on different grounds, were two thirds of the justices who agreed on Hurley. 

Since then Rehnquist has been replaced by John Roberts, Stevens by Elena Kagen, O'Connor by Samuel Alito, and Souter by Sonya Sotomayor. That isn't much of an ideological shift, if any.

Although advocates and opponents of same-sex marriage seldom realize it, there is a huge difference in constitutional jurisprudence between restraining the law from intervening in people's private lives, and using the blunt instrument of the law to demand universal respect for those same private lives. In fact, the principles that urge restraint in the exercise of police powers cut against universal conformity, either way.

Trayvon Martin: Let It Rest

Personally, I thought George Zimmerman was guilty of some degree of homicide. Not first degree: he did not deliberately set out to target Trayvon Martin with malice aforethought and intent to kill. Not second degree: when he shot Trayvon, he did not shoot with malice. But it wasn't justified self defence either: you don't get to pick a fight with someone, then when the fight goes against you, pull out a gun and kill, and claim "self-defence." If George Zimmerman had stayed in his truck, Trayvon Martin would be alive today.

I do not believe the jury that found George Zimmerman not guilty of all charges was primarily motivated by racism, and I cannot know with certainty that it was motivated at all by racism. Credible accounts that Martin had Zimmerman pinned to the ground, and Zimmerman feared for his own safety are quite enough to explain the jury's verdict.

I wasn't in the court room, and I didn't hear all the evidence. Like most people, I had to sort through what was pumped out in the media, generally with a lot of overlay by people who were either pumping for Zimmerman as a poster boy for something or other, or were demanding that he be convicted. I tried to get the best picture I could, but only the jury heard it all.

The best sense I got is that two people were each afraid the other was up to no good, and lashed out in what they perceived to be self-defense. Zimmerman thought he was following a potential burglar, and he was wrong. Martin thought a crazy man was following him with intent to assault, rob, or otherwise harm him, and he wasn't quite right about that either. Based on a video that's been posted, it is obvious why Martin might have found Zimmerman's behavior bizzare and threatening. Martin probably felt 'this guy's following me down the street on a dark rainy night, driving past me, then stopping, watching me, following me around the corner and around a bend, then getting out of his vehicle and following me.' Zimmerman thought Martin was acting bizarre when Martin ducked out of sight for fear of Zimmerman.

Zimmerman thought it odd that Martin was looking at him. Martin thought it odd that Zimmerman was looking at him. At some point, Martin thought the best way to insure his own safety was to incapacitate this creepy guy following him. That was overkill. So Martin turned on Zimmerman, quite possibly intending to render him unconscious, and Zimmerman, who found that understandably threatening, pulled out a gun and shot Martin.

Nobody who has had a friend or relation in prison, or worked with families who did, could fail to have some sympathy for Zimmerman's parents and wife, and even Zimmerman himself. He believed he was doing the right thing. He really did. But killing someone, in the honest and unreasonable belief that someone poses a danger, is a crime, albeit less than murder. The hard part is, Zimmerman had a reasonable belief that Martin was doing great bodily harm to him at the time he fired. What he did not have was a reasonable basis to behave in the bizarre fashion that led Martin to believe Zimmerman was posing a danger to Martin.

Apparently the jury found Zimmerman's injuries established a reasonable doubt that he was guilty of any degree of criminal homicide. But the fact remains, Zimmerman began the chain of circumstances that ended with Zimmerman shooting Martin. Zimmerman made a faulty assumption about Martin, and acted on it. It is dangerous for people who jump to conclusions to be following other people on dark rainy nights. It is even more dangerous for such people to be carrying weapons. We need protection from people who do what George Zimmerman did. A conviction would have provided a bit of that protection.

Trials are not held to provide the community with catharsis. The jury has a specific duty NOT to respond to any organized body of opinion that Zimmerman should or should not be convicted. They heard all the evidence, and did what seemed to them the best they could do. They clearly weren't happy with it. Even if the evidence was clear and convincing, they had to find proof beyond a reasonable doubt in order to convict.

Zimmerman does come across as a creepy guy. Hopefully he will at least have learned to stay home and stop acting like Superman. The verdict cannot be satisfying to Martin's family, but the fact that there was a trial was a victory. Zimmerman did not get to walk after a routine dismissal by police. He had to face detailed testimony, and the entire matter was examined and sifted. That is a bit more than nothing. Let it rest.

Emory President is right about "three-fifths compromise" ... for what it's worth

James W. Wagner, the president of Emory University, has stirred up a storm by referring to the "three-fifths compromise," in drafting the federal constitution in 1787, as an example of how polarized people could find common ground. Students have marched on campus denouncing racism and calling for Wagner's resignation. Wagner himself has called it a clumsy and regrettable mistake.

The "three-fifths compromise" was an agreement that in figuring out how many seats a state was entitled to in the federal congress, the whole number of free persons and three fifths of the whole number of "all other Persons," an embarrassed euphemism for people of African descent - by and large enslaved, would be counted. Whatever else this may have been, it was in fact an example of how polarized people could find common ground.

What they were polarized about was not the humanity of people from Africa. They weren't even thinking about that. Contrary to common myth, the Framers of our federal constitution did not agree that Americans of African descent were 3/5 of a human being each, or that a person of African descent was 3/5 the value of a "white man."

The "three-fifths compromise" was strictly a power play between states, over which states would carry how much weight in the federal legislature. Everyone was agreed that the House of Representatives would be based on population. It would be a mistake to even say that "universal manhood suffrage" or "free white males" was the basis of representation.

Who would have the right to vote in congressional elections? Those in each state who "shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." In most states, that involved some minimum value of property ownership. Not everyone could vote, but the entire "free" population was counted in figuring how many representatives a state could elect.

Large numbers of non-voting free people who didn't own much property would nonetheless be counted in the census and add to the number of representatives in a state's delegation. Since enslaved persons were legally chattel property, could they be counted? Northern delegates said, if you count your slaves, then we should be able to count our mules, horses, and cattle. Are they men? If so, let them vote.

(That would have been a hollow bit of humanitarian sentiment, since even as men, or women, they would own enough property to vote. But the sentiment was not humanitarian, it was about power, distributed among states, governed by a minority of even the "free white male" inhabitants.)

Essentially, the northern delegates said slaves should count for zero, and southern delegates said slaves should count one hundred percent. Did the northern delegates thus set the value of Africans lower than the southern delegates did? Nope, they were all just trying to increase their own balance of power, at the expense of the rest.

So, taking the compromise as what it really was, settling a dispute about which property owning free white men should have how much power in the new government, it was indeed a pragmatic half-victory that "kept in view the higher aspiration of drawing the country more closely together."

Leslie Harris, a professor of history at the school, responded, "The three-fifths compromise is one of the greatest failed compromises in U.S. history.” She elucidated that “Its goal was to keep the union together, but the Civil War broke out anyway."

Indeed it did. But it would be quite accurate to say that it was the three-fifths compromise that made possible the Emancipation Proclamation and the Thirteenth Amendment.

If no compromise had been reached, the southern states would have gone their own way, two, perhaps three confederacies would have formed along the Atlantic seaboard. New York and Rhode Island might have stayed out of any confederation. Virginia would have retained its claims to the entire northwest. There probably would have been no Northwest Ordinance, keeping slavery out of the states north of the Ohio River.

But, because the three-fifths compromise allowed the formation of one nation, it was possible four score and seven years later to insist that it remain one nation. When a band of men who had a large chunk of their capital invested in enslaved human beings tried to lead their states into secession from the union, there were others (south as well as north) who said, no, you can't do that. The end result, intended by almost nobody, was the end of slavery.

Which brings the gentle reader back to Wagner's original point: there are men and women in congress today who declare an unshakable commitment to be guided only by the language of the United States Constitution, and never to compromise their ideals. These men and women are ignorant of the process by which the constitution was written and ratified. These men and women are speaking out of both sides of their mouths, because the constitution was in fact the product of compromising principles.

Compromise almost always means compromising principles, because the people on the other side of the table also have principles, which is why there are differences to be compromised.

There are other good examples to draw on. Joe Slovo, a leader of the South African Communist Party and the African National Congress, was asked why the ANC's complete program (which included nationalization of all mines and natural resources) had not been implemented after Nelson Mandela was elected president. He replied, because we didn't win. The compromise between F.W. De Klerk and Nelson Mandela recognized that neither side had the power to vanquish the other. They could continue a low-level conflict for decades, or compromise. The compromise has indeed been messy and disappointing to just about everyone.

Likewise, when William F. Buckley, Jr. and S.I. Hayakawa were discussing the Panama Canal, Hayakawa said you don't negotiate from a position of weakness. Buckely astutely responded, of course you do. If you have the upper hand, and can have it all your way, you have no reason to negotiate. You only negotiate when you cannot get everything your own way.

Wagner's explanation to readers who found fault with his original column therefore remains quite appropriate to consider:

"We see these truths in hindsight. In retrospect we can fairly ask ourselves, would we have voted for the Constitution—for a new nation, for “a more perfect union”—if it meant including the three fifths compromise? Or would we have voted no—that is, voted not to undertake what I hope we see as a noble experiment, however flawed and imperfect it has been? Would the alternative have been a fractured continent, a portion of which might have continued far longer as an economy built on the enslavement of human beings? We don’t know; nor could our founders know.

"The ends do not in themselves justify any means necessary to achieve them. My essay did not suggest that. But without a struggle to find a way through to our higher purpose, we may be left with far more damaging circumstances than what our light calls us toward. Inevitably, our existence as human beings is a compromised existence, never pure. Unless we recognize that with humility and mutual charity, we will always remain polarized."