Epstein on Elane Photography v. Willock

The Dark Side of the Gay Rights Movement
Richard A. Epstein
August 23, 2013

Just yesterday, in Elane Photography v. Willock, the New Mexico Supreme Court issued a most unfortunate ruling on the application of the New Mexico Human Rights Laws to a Christian photographer, Elaine Huguenin, who refused, on religious grounds, to photograph the wedding of a lesbian couple. The decision of the Court was unanimous (with one misguided concurrence), and it shows the sorry state to which the human rights laws have fallen in their treatment of public accommodations.

In this case, the New Mexico Human Rights Act (NMHRA), adopts (as is typical in these instances) a very broad definition of what counts as a public accommodation subject to its general non-discrimination laws. Thus, the term includes, “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.”

There is, in my view, no doubt that this definition covers Elane Photography, the small husband-and-wife photography firm hauled before the court. And that is just where the problem begins. The traditional account of a public accommodation, derived from the early English Law, was limited to those organizations that had some degree of monopoly power in a particular market. This was intended to deal with situations where, for example, only one firm could get you from London to Oxford, or only one inn was available in Reading. At that point, a refusal to deal could not be offset by going to another provider.

Richard A. Epstein