August 22, 2013
"We use the terms 'wedding' and 'commitment ceremony' interchangeably."
Footnote 1 of today's opinion of the Supreme Court of New Mexico in Elane Photography, LLC v. Willock says that "[w]e use the terms 'wedding' and 'commitment ceremony' interchangeably." That posited interchangeability is what allows the court to use the words interchangeably throughout the rest of the opinion, as in the quotable (and quoted) statement that, "when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the [New Mexico Human Rights Act] in the same way as if it had refused to photograph a wedding between people of different races." But suppose that there is a difference between a wedding and a commitment ceremony, in that a wedding celebrates a marriage while a commitment ceremony does not. The analogy to inter-racial weddings is then obviously inapt, right?
Consider, also, the following: "Elane Photography is primarily a wedding photography business. It provides wedding photography services to heterosexual couples, but it refuses to work with homosexual couples under equivalent circumstances." Couldn't Elane Photography argue that the circumstances are not equivalent because the commitment ceremony is not a wedding because it does not involve a marriage? The argument would be that because a commitment ceremony is not a wedding, Elane Photography is not discriminating in the "wedding photography business."
Posted by Kevin C. Walsh on August 22, 2013 at 10:33 PM | Permalink
"Couldn't Elane Photography argue that the circumstances are not equivalent because the commitment ceremony is not a wedding because it does not involve a marriage?"
It could claim that, of course, but unless it came up with some substantive argument to support the claim, it would just be begging the question, I'd say. Now, perhaps an argument can be given, but we'd certainly need a lot more than what's said here. (Otherwise, we could do the same thing w/ the inter-racial marriage- the photographer could say they are in the "wedding^1 photo" business, where "wedding^1" is what a same-race marriage has, so now there is a difference.)
This doesn't, of course, address whether these laws are good ideas. I'll admit to not being 100% sure about that. But to be anything more than transparent sophistry we'd need some more substance than the argument suggested here would provide.
Posted by: Matt | Aug 23, 2013 9:07:27 AM
If it is apparent -- it's really not -- the only reason the LLC in question won't even hire someone to photograph any sort of 'commitment ceremony' because it only does 'weddings,' that might work. Is there any evidence that if a different sex couple wanted them to photograph a 'commitment ceremony' that the company would refuse, saying "oh sorry, we don't do them"?
I understand we are assuming for the sake of argument, but the real world is important all the same there. Anyway, just to be clear, the footnote also notes "parties agree that the ceremony was essentially a wedding."
Posted by: Joe | Aug 23, 2013 10:29:04 AM
Matt -- should it matter whether or not, in the jurisdiction in question, same-sex marriages are legally recognized? That is, would it really just be sophistry for a photographer, in a jurisdiction that retains, for purposes of legal recognition, the traditional understanding of marriage, to distinguish between a "wedding" and a "ceremony"?
Posted by: Rick Garnett | Aug 23, 2013 10:33:23 AM
Matt: I don't see the same move as legally available in the inter-racial marriage context. As I see it, the photographer in my example would argue (in support of the argument stated in the post): (1) every wedding involves a marriage; (2) marriage requires a man and a woman. This argument takes existing categories recognized in culture and law and draws reasonable boundaries around each category. If a photographer opposed to photographing inter-racial weddings wanted to "do the same thing," he would have to argue at step (2) that marriage requires people of the same race. And the argument loses right there. The example that you pose is not really "the same thing." It involves creating a new category called "wedding^1." What do you think?
Rick: The way that the relevant jurisdiction's positive law defines marriage is relevant. But I don't think it should be dispositive. Two days after New Mexico expands its marriage laws to encompass same-sex unions, the legal reasonableness of the photographer's boundary-drawing around the category of marriage would be supported by the jurisdiction's acceptance of that boundary in its positive law until just the other day.
Joe: I'm not familiar with all the evidence and arguments in this case. The opinion relates the photographer's statement that her company photographs only "traditional weddings." I do not know what the photographer would say about the reach of that term, but it would seem reasonable for the photographer to say that a heterosexual commitment ceremony is not a "traditional wedding." I have also not gone beneath the opinion to check the court's claim that "the parties agree that the ceremony was essentially a wedding." But the word "essentially" is doing a lot of work in that claim of (essential?) agreement. In support of this claim, the court notes that "Elane Photography emphasizes that there were vows, rings, a minister, flower girls, and a wedding dress, and Willock uses the word 'wedding' to describe the ceremony in her brief." It seems that the court believes that a ceremony is "essentially a wedding" if one party calls it that in its brief and the other party notes that there were vows, rings, a minister, flower girls, and a wedding dress. Perhaps you think that's enough to ground the claimed agreement. I don't. If I were a lawyer, I'd feel silly arguing to a court in a responsive brief that Elane Photography agrees that a commitment ceremony is "essentially a wedding" because its opening brief emphasized that there were vows, rings, a minister, flower girls, and a wedding dress.
Posted by: Kevin C. Walsh | Aug 23, 2013 2:01:41 PM
Kevin- I still don't think that works. They can say that they are in the Wedding^1 photography business, and they only do that for marriages^1, which they and people like them know to be same-race marriages. That would certainly be sophistry, but it doesn't seem any more so than the argument presented above. In both cases you'll be appealing to a limited community understanding of the term, and I don't see how that's relevant for the law in question. Now, maybe there's a theory in the background that can do some important work here, but the labels alone can't do it in the way you've set it up, I think.
Rick- it might be relevant. I suppose it depends on how the anti-discrimination law in the area in question works, so I'd need to know more about that to have a clear idea.
Posted by: Matt | Aug 23, 2013 2:53:53 PM
What Joe said. Also, the Court quotes the record to show that the photographer in question herself used the word "wedding" to describe the commitment ceremony: "'Yes, you are correct in saying we do not photograph same-sex weddings'"
Posted by: Brennan | Aug 23, 2013 3:14:47 PM
Matt: The distinction I drew was between (1) an argument that "takes existing categories recognized in culture and law and draws reasonable boundaries around each category"; and (2) an argument that creates a new category previously unrecognized in culture or law. It is true that (1) and (2) both appeal to a "limited community understanding" of the terms "marriage" and "wedding." But if I understand correctly what you mean by a "limited community understanding," so do _all_ arguments about the content of positive law. Of course the photographer in your example can say that she is in the wedding^1 photography business and she only offers her services for marriages^1. But I don't see what follows from this structural similarity. For purposes of the law in New Mexico right now, an inter-racial marriage is a marriage, but a same-sex commitment is not a marriage. This seems like a relevant distinction to draw when figuring out whether there has been discrimination within the meaning of New Mexico's law. As I suggested in my answer to Rick, I don't think that the definition of marriage in positive law should be dispositive of whether to recognize the photographer in my example's scope-of-business definition. But surely she has substantially more support than the photographer in your example.
Posted by: Kevin C. Walsh | Aug 23, 2013 3:28:27 PM
Brennan and Joe: I've just reviewed the briefs, and they are inconsistent with the court's characterization of Elane Photography's use of terminology. Elane Photography's briefs are available at http://www.adfmedia.org/files/ElanePhotoChiefBrief.pdf and http://www.adfmedia.org/files/ElanePhotoReplyBrief.pdf. The opening brief, for example, sometimes uses the phrase "wedding-like ceremony" or "wedding-like event" to refer to the commitment ceremony at issue. This usage explicitly distinguishes the ceremony at issue as wedding-like, rather than a wedding. The phrase is truly bizarre if one thinks that the commitment ceremony is "essentially a wedding."
Consider the following quotation from pages 24-25 of Elane Photography's opening brief: "Compelling Elane Photography to photograph a same-sex commitment ceremony would require the Company to create pictures communicating the story of a wedding-like event between two persons of the same sex. This story would convey both a factual message--that same-sex couples conduct wedding-like ceremonies to celebrate their relationships--and an approval message--that same sex unions are good and worthy of celebration." With language like that, does it fairly represent Elane Photography's usage to assert that "the parties agree that the ceremony was essentially a wedding"?
Suppose the court had said: "The parties agree that the ceremony was essentially a wedding. Willock uses the word "wedding" to describe the ceremony in her brief. Elane Photography uses the phrase "wedding-like ceremony" in her brief. But Elane Photography also emphasizes that there were vows, rings, a minister, flower girls, and a wedding dress. Accordingly, we use the terms 'wedding' and 'commitment ceremony' interchangeably." What sort of opinion might you form of the court's reliability from reasoning like that?
Sure, the photographer used the phrase "same-sex weddings" in an email exchange. But for purposes of describing the parties' use of terminology to establish the kind of agreement that the court attributes to them, the deliberate usage in the brief by the lawyers representing the company controls. As one might expect, the parties use different terms in their briefs to suit their different purposes. The court follows one party's usage and justifies it by projecting an illusory agreement onto the parties. That's not right.
Posted by: Kevin C. Walsh | Aug 23, 2013 4:04:11 PM
The question here is at bottom a question about the interpretation of New Mexico Human Rights Act's ban on sexual orientation discrimination in public accommodations. The question is thus not, "Can we devise a reasonable conceptual scheme in which what Elane Photography did here does not count as sexual orientation discrimination?" The question is, rather, whether such a conceptual scheme comports with the nature and function of the statute. And the answer, it seems to me, is that it pretty clearly does not. The same-sex status of the couple cannot be used to break the equivalence of circumstances because that would undermine the whole point, which is that distinctions of that sort are not supposed to control who has access to goods and services offered to the public.
Posted by: JHW | Aug 23, 2013 9:30:51 PM
I appreciate the heavy-lifting Prof. Walsh has provided but still don't think at the end of the day it really matters in the case at hand or most cases.
Elane Photography doesn't wish to serve same sex couple commitment ceremonies here because they believe in "preserving marriage as a union of a man and a wife," and if it was in business in NY and a same sex couple came with a NY marriage license and wished to have a "wedding" connected to it, would seem -- like the judge in Loving who held that God did not bless interracial unions as valid marriages -- to equally not wish to serve them. They cite the case of polygamous weddings. But, they don't say that "commitment ceremonies" as a whole are the problem.
My comment (putting aside the footnote quote) holds in that respect. The case doesn't turn on it being a 'wedding' and I don't know what the difference between "wedding" and "wedding-like" really means. What is the correct definition of "wedding"? Does it mean what the state itself authorizes? If objectively the ceremony looks like a wedding to a jury or judge is that enough? Would outside of law class hypos it be that likely that "we only do weddings, even if you are one man, one woman doing a commitment ceremony, sorry" is likely to really occur?
Posted by: Joe | Aug 23, 2013 10:23:57 PM
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