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Same-sex marriage (SSM) in New Mexico:

2013-DEC: Senator Sharer (R) files bill to amend
the New Mexico Constitution.
2014-APR: U.S. Supreme Court rejects appeal
in Elane Photography discrimination case.

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Discussion of his topic is continued from the previous essay

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2013-DEC-20: State Senator Bill Sharer (R) files proposed state constitutional amendment:

One day after the New Mexico Supreme Court legalized same-sex marriage, Senator Sharer prefiled Senate Joint Resolution 6. If is approved by the Legislature and later on election day by state voters, it would add a short clause to the state Constitution -- apparently the first time that discrimination has been entered into the constitution. The clause would say:

"Marriage, which is a right, in this state shall consist only of the union between one man and one woman."

Senator Sharer said:

"With this disappointing ruling [by the state Supreme Court] yesterday, the ... Court in essence is saying current laws that refer to marriage as between a man and a woman are unconstitutional. we need to make that union constitutional by putting the definition of marriage in the state Constitution with the will of the people. ... “It is now up to the Legislature to give voters this opportunity to be heard on such a significant cultural debate." 7

Steve Terrell of the Santa Fe New Mexican, commented:

"Legislative opponents of gay marriage — including Sharer — have tried many times for more than a decade to pass laws or constitutional amendments outlawing same-sex marriage. Normally, such legislation stalls in the legislative committee process. With Democrats controlling the Legislature, there’s no evidence to indicate the result would be any different in the upcoming session." 7

The proposed amendment will face other challenges if it comes up to a popular vote:

  • Other states, when they have legalized same-sex marriage, have seen public support for marriage equality increase significantly.

  • Also in other states, voters have been observed to be reluctant to change state constitutions in order to introduce discrimination.

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2013-NOV: Elane Photography discrimination case is appealed to the U.S. Supreme Court:

The company had refused to accept their defeat at the hands of the New Mexico Supreme Court. They appealed their case as high in the court system as they can go: to SCOTUS, the Supreme Court of the United States. This triggered a number of attempts in various state legislatures to create "religious freedom to discriminate" legislation. These were intended to protect public accomodations like Elane Photographer by allowing them to discriminate against any potential customers on sincerely held religious grounds.

The defendants' lawyers came from the Alliance Defending Freedom (ADF) -- a conservative Christian legal advocacy group. Their appeal was based on the guarantee of individual freedom of speech contained in the First Amendment of the U.S. Constitution. The ADF argued that the New Mexico human rights statute forced the photographper to "create expression" in violation of her religious beliefs. Some commentators referred to the state human rights law as a form of "compelled speech." The appeal argued that the statute, when applied broadly, would:

"... require individuals who create expression for a living -- like marketers, advertisers, publicists and website designers -- to speak in conflict with their consciences."

The human rights legislation applies to "public accomodations." These are typically individuals or companies in businesses to provide goods or services to the general public. Some of these companies are in the marriage "industry," and include wedding photographers, bakers of wedding cakes, drivers of limousines for rent, owners of halls for rent, retail companies selling wedding dresses, etc.

ADF appears to have argued that these wedding-related public accomodations should be divided into two groups:

  1. Those companies that require artistic expression, like photographers, wedding cake decorators, and perhaps wedding invitation printers, flower arrangers, etc. The human rights statute in New Mexico and many other states requires them to supply a service or sell a product to any customer, and not to reject certain customers on the basis of their skin color, race, nationality, gender, sexual orientation, etc. The ADF believes that this violates the owner(s)' First Amendment guarantee of freedom of speech.

  2. Those companies that supply a service or sell a product that does not require artistic expression, like limousine drivers, hall renting, sellers of wedding dresses manufactured by others, etc.

They assert that whenever artistic expression is involved, that the company or individual should be immune to prosecution under state human rights laws.

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2014-APR-07: End of the road for the Elane Photography case:

The company had appealed their case to the U.S. Supreme Court (SCOTUS).

SCOTUS may accept appeals from either state Supreme Courts or federal Circuit Courts of Appeals. However, is not required to review any specific case. In fact, it rejects most appeals. A minimum of four out of the nine Justices must agree before the Court issues a "a writ of certiorari" -- an agreement to accept the appeal. This is commonly referred to as the "rule of four."

Fewer than four Justices agreed to review the New Mexico case. On APR-07, the court issued a one-line statement stating that they would not accept the appeal. No reason is required of the court, and no reason was apparently given. The ruling of the lower court stands. The New Mexico human rights legislation continues to be valid. Elane Photography continues to be convicted of the violation of New Mexico's human rights statute. Other human rights statutes in other states appear to remain valid -- for now.

Austin R. Nimocks, the photographer's attorney, is from the conservative Christian legal advocacy group Alliance Defending Freedom (ADF). He said:

"When you've got hundreds of photographers who are willing to take photographs the same sex couple wanted, in fact they got that done. There's no need for the Government to strong arm a photographer or anybody for that matter into doing something against their deeply held beliefs."

Senior Counsel Jordan Lorence at ADF said:

"Only unjust laws separate what people say from what they believe. The First Amendment [of the U.S. Constitution] protects our freedom to speak or not speak on any issue without fear of punishment. We had hoped the U.S. Supreme Court would use this case to affirm this basic constitutional principle; however, the court will likely have several more opportunities to do just that in other cases of ours that are working their way through the court system."

David Cortman, another Senior Counsel at ADF said:

"Elaine and numerous others like her around the country have been more than willing to serve any and all customers, but they are not willing to promote any and all messages. A government that forces any American to create a message contrary to her own convictions is a government every American should fear."

Tobias Barrington Wolf, the attorney for the lesbian couple who were refused service, said:

"One of the things that happens when businesses are allowed to discriminate is that certain tpes of people might be excluded all together from access to goods and servces. But the other thing that happens is that they are made to feel unwelcome and unsafe in the public marketplace."

In the Elane Photography case, the couple was able to secure the services of another photographer who documented their commitment ceremony. 8,9,10

Reuters published an article about this case, titled: "Supreme Court declines free speech, gay marriage case." 11 That title is surprising because Reuters has an excellent reputation for unbiased, accurate reporting. The Elane Photography case does not involve free speech. Rather, it involves freedom of discriminatory action based on the religious beliefs of the owners of the company. Also gay marriage was not involved; the lesbian couple were planning an informal committment ceremony because New Mexico did not allow same-sex marriages at the time.

Unfortunately, Reuters only opens their comments section for a few days. Otherwise we would have posted a comment that pointed these apparent errors. Instead, we sent the following request on APR-15 to Reuters Online Support:

On APR-07, you published an article by Lawrence Hurley, titled: "Supreme Court declines free speech, gay marriage case."

IMHO, this title contains two errors:

1) No gay marriage case was involved. The case involved an informal commitment ceremony.

2) No freedom of speech was involved -- only freedom to take actions that discriminated against others, based on the company owners' religious beliefs.

If we receive a response from Reuters, we will add it here.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Lisa Keen, "NM Supreme Court: Marriage Equality A Reality for Same-Sex Couples," The Rainbow Times, 2013-DEC-19. at: http://www.therainbowtimesmass.com/
  2. Aaron Blake, "New Mexico Supreme Court legalizes gay marriage," Washington Post, 2013-DEC-19, at: http://www.washingtonpost.com/
  3. "NM County Officials Resign Over Marriage Equality," The Rainbow Times, 2013-DEC-20. at: http://www.therainbowtimesmass.com/
  4. Text of the "New Mexico Supreme Court decision legalizing same-sex marriage," Scribd, 2013-DEC-19, at: http://www.scribd.com/
  5. Bethany Monk, "New Mexico Supreme Court Rules in Favor of Same-Sex Marriage," CitizenLink, 2013-DEC-19, at: http://www.citizenlink.com/
  6. Steve Terrell, "Gay marriage allowed in New Mexico," Santa Fe New Mexican, 2013-DEC-29, at: http://www.santafenewmexican.com/
  7. Steve Terrell, "Lawmaker files proposal for amendment to ban gay marriage," Santa Fe New Mexican, 2013-DEC-21, at: http://www.santafenewmexican.com/
  8. Regina Ruiz, "U.S. Supreme Court refuses to hear Elane Photography same-sex discrimination case," KOAT ABC Albuquerque, 2014-APR-07, at: http://www.koat.com/
  9. , "Supreme Court won't hear appeal of New Mexico gay bias case," Los Angeles Times, 2014-APR-07, at: http://www.latimes.com/
  10. Elane Photography v. Willock," Alliance Defending Freedom, 2014-APR_07, at: http://www.alliancedefendingfreedom.org/
  11. Lawrence Hurley, "Supreme Court declines free speech, gay marriage case," Reuters, 2014-APR-07, at: http://www.reuters.com/

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Copyright © 2013 & 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2013-DEC-20
Latest update: 2014-APR-15
Author: B.A. Robinson

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