Lead Opinion
OPINION
{1} This appeal arose from the refusal of Elane Photography, LLC (Elane Photography), to photograph the commitment ceremony of Vanessa Willock (Willock) and her same-sex partner (Partner). Elane Photography denied Willock’s request to photograph the ceremony based upon its policy of refusing to photograph images that convey the message that marriage can be defined to include combinations of people other than the union of one man and one woman. Elane Photography’s owners are Christians who believe that marriage is a sacred union of one man and one woman. They also believe that photography is an artistically expressive form of communication and photographing a same-sex commitment ceremony would disobey God and the teachings of the Bible by communicating a message contrary to their religious and personal beliefs. We conclude that Elane Photography’s refusal to photograph Willock’s ceremony constitutes a violation of NMSA 1978, Section 28-l-7(F) (2004) of the New Mexico Human Rights Act (NMHRA). As a result, we affirm the decision of the district court in favor of Willock.
I. FACTUAL AND PROCEDURAL HISTORY
A. Factual History
{2} Elane Photography is a limited liability company owned by Elaine and Jonathan Huguenin. Elaine Huguenin also serves as Elane Photography’s head photographer. Elane Photography offers photography services to the public on a commercial basis and primarily photographs significant life events such as weddings and graduations. However, Elane Photography has a policy of only photographing life events that communicate messages consistent with the Huguenin’s personal and religious beliefs. Elane Photography solicits customers by offering its services through its website, advertisements on multiple search engines, and in the Yellow Pages.
{3} This case arose when Willock, who was involved in a same-sex relationship, emailed Elane Photography to inquire about photography for her upcoming commitment ceremony. Willock indicated in the email that this would be a “same-gender ceremony.” Elane Photography quickly responded, thanking Willock for her interest but explaining that Elane Photography photographs “traditional weddings.” Unsure what Elane Photography meant by “traditional weddings,” Willock sent a second email asking Elane Photography to clarify whether it “does not offer [its] photography services to same-sex couples.” Elane Photography responded affirmatively, stating, “[y]es, you are correct in saying we do not photograph same-sex weddings,” and again thanked Willock for her interest in Elane Photography.
{4} Partner, without disclosing her same-sex relationship with Willock, sent an email to Elane Photography the next day. The email mentioned that Partner was getting married but did not specify whether the marriage was same-sex or “traditional.” Partner also asked Elane Photography whether it would be willing to travel for a wedding. Elane Photography responded that it would be willing to travel and included pricing information. Elane Photography also offered to meet with Partner to discuss options. When Elane Photography did not hear back from Partner, it sent a follow-up email to determine if Partner had any questions about the offered services.
B. Procedural History
{5} In December 2006, Willock filed a discrimination claim with the New Mexico Human Rights Commission (NMHRC) alleging that Elane Photography refused to offer its photographic services to Willock because of her sexual orientation. The NMHRC determined that Elane Photography was a “public accommodation” under NMSA 1978, Section 28-l-2(H) (2007). The NMHRC further determined that the evidence demonstrated that Elane Photography violated Section 28-1-7(F) by discriminating against Willock based upon her sexual orientation. The NMHRC ordered Elane Photography to pay Willock $6,637.94 in attorney fees and costs. Willock did not seek monetary damages.
{6} Elane Photography appealed to the district court, invoking the district court’s original and appellate jurisdiction. It asked the court to review the NMHRC’s determination and to consider whether the NMHRC’s interpretation of the NMHRA violated (1) Elane Photography’s right to freedom of speech under the First Amendment of the United States Constitution and Article II, Section 17 of the New Mexico Constitution; (2) Elane Photography’s rights under the free exercise clause of the First Amendment to the United States Constitution and Article II, Section 11 of the New Mexico Constitution; and (3) Elane Photography’s rights under the New Mexico Religious Freedom Restoration Act (NMRFRA), NMSA 1978, Sections 28-22-1 to -5 (2000). Both parties filed motions for summary judgment. The district court denied Elane Photography’s motion and granted Willock’s motion for summary judgment. The district court upheld the NMHRC’s determinations that Elane Photography was a “public accommodation” under the NMHRA and that Elane Photography violated the NMHRA by discriminating against Willock based upon her sexual orientation. In its memorandum opinion and order, the district court also rejected Elane Photography’s constitutional and statutory arguments based upon freedom of speech, freedom of religion, and the NMRFRA. Elane Photography filed a timely appeal to this Court.
II. DISCUSSION
{7} Elane Photography contends that Willock failed to establish a violation of the NMHRA, and that applying the NMHRA under these circumstances would violate federal and state constitutional law as well as state statutory law. Elane Photography also argues that application of the NMHRA violates the NMRFRA. An appeal from a grant of a motion for summary judgment presents a question of law and is reviewed de novo. Self v. United Parcel Serv., Inc.,
A. The New Mexico Human Rights Act
{8} The NMHRA prohibits “any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services ... to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation},] or physical or mental handicap.” Section 28-1-7(F) (emphasis added). Elane Photography argues that it did not violate the NMHRA for two reasons: (1) it is not a “public accommodation,” and (2) it did not make any distinction based on sexual orientation in refusing its services to Willock
1. Public Accommodation
{9} Elane Photography focuses its initial argument on the issue of whether it is a “public accommodation” pursuant to the NMHRA. [BIC 11-15] A “public accommodation” is “any establishment that provides or offers its services ... to the public, but does not include a[n] . . . establishment that is by its nature and use distinctly private.” Section 28-l-2(H).
{10} Elane Photography argues that the analytical framework set forth in Human Rights Comm’n of N. M. v. Board of Regents of Univ. of N. M.,
{11} In Regents, our Supreme Court specifically held that “the University’s manner and method of administering its academic [nursing] program” was not a “public accommodation” under the NMHRA. Id. In making this determination, our Supreme Court recognized the newly expanded general application ofthe NMHRA. Id. However, the Supreme Court felt that the Legislature did not intend this expanded statutory language “to [automatically include] all establishments that were historically excluded ... as public accommodations.” Id. In its ruling, the Supreme Court carefully limited its holding and specifically stated that “[t]his opinion should be construed narrowly and is limited. . . . We reserve the question of whether in a different set of circumstances the University would be a ‘public accommodation’ and subject to the jurisdiction of the [NMHRC].” Id. No other guidance was provided by the Supreme Court to address the Legislature’s expansion of the NMHRA to other public accommodations outside the unique academic circumstances analyzed in Regents.
{12} When our Supreme Court specifically reserved any determination of whether the University would be a public accommodation under a different set of circumstances and did not analyze the extent that the NMHRA expanded the application of a “public accommodation” to other non-traditional and non-historic types of businesses, it signaled that this Court should independently evaluate the applicability of the NMHRA in all future cases. Id.; see Ottino v. Ottino,
{13} Having determined that our Supreme Court’s analysis in Regents is narrow and has limited application to the facts of this case, we begin our analysis by looking at the language of the statute to ascertain the present scope of the NMHRA. See Santillo v. N.M. Dep’t of Pub. Safety,
{14} Willock points out, and we agree, that the expansive language of the current NMHRA “extends protection to ‘services’ and ‘goods’ as well as ‘facilities’ and accommodations,’ making [it] clear that [the NMHRA] reaches commercial activity beyond the nineteenth-century paradigm of an inn, restaurant, or public carrier.” It should be emphasized that the Legislature explicitly amended the wording of the statute to remove the narrow and specifically enumerated traditional places of public accommodation relied upon by Elane Photography. See NMSA 1953, § 49-8-5 (1955 Supp.). The Legislature replaced the narrowly identified places of public accommodation with the broad definition of “any establishment that provides or offers its services, facilities, accommodations or goods to the public.” Section 28-l-2(H). This broadly worded definition includes only one exception and that exception is inapplicable in this case. See id. Consistent with the Supreme Court’s instructions in Ocana, we are now able to review decades of precedent from other jurisdictions that has developed since the decision in Regents and will assist us in our analysis of the broader language in the NMHRA. Ocana,
{15} Cases addressing public accommodations statutes with similarly broad language support a national trend that has expanded the traditional definition ofbusiness activity that constitutes a “public accommodation.” See Roberts,
{16} The Superior Court of New Jersey supported a similarly expansive definition of a public accommodation, concluding “that the hallmark of aplace of public accommodation [is] that ‘the public at large is invited[.]’” Nat’l Org. for Women v. Little League Baseball, Inc.,
{17} Elane Photography argues that these expanded definitions of public accommodations fail to take into account or distinguish the unique artistic nature of certain services, such as those offered by Elane Photography. However, Elane Photography avoids addressing the critical factor that a photography business does offer its goods or services to the general public as part of modern commercial activity. In response, Willock specifically emphasizes the numerous jurisdictions that have adopted a broad definition of “public accommodation” and have included businesses “providing services to the general public,” and have not recognized a special exception for nonessential, artistic or discretionary businesses. See, e.g., N. Coast Women’s Care Med. Grp., Inc. v. San Diego Cnty. Super. Ct.,
{18} Today, services, facilities, and accommodations are available to the general public through a variety of resources. Elane Photography takes advantage of these available resources to market to the public at large and invite them to solicit services offered by its photography business. As an example, Elane Photography advertises on multiple internet pages, through its website, and in the Yellow Pages. It does not participate in selective advertising, such as telephone solicitation, nor does it in any way seek to target a select group of people for its internet advertisements. Rather, Elane Photography advertises its services to the public at large, and anyone who wants to access Elane Photography’s website may do so. We conclude that Elane Photography is a public business and commercial enterprise. The NMHRA was meant to reflect modern commercial life and expand protection from discrimination to include most establishments that typically operate a business in public commerce. As a result, Elane Photography constitutes a public accommodation under the NMHRA definition and cannot discriminate against any class protected by the NMHRA.
2. Discrimination Based on Sexual Orientation
{19} Having determined that Elane Photography constitutes a public accommodation, we mustnext look at whether Elane Photography violated the NMHRA by discriminating against Willoclc on the basis of sexual orientation. See § 28-l-7(F). The ultimate issue in a discrimination claim is “whether the [challenged entity’s] actions were motivated by impermissible discrimination.” Martinez v. Yellow Freight Sys., Inc.,
{20} Elane Photography argues that the district court erred in finding that Elane Photography’s policy of categorically refusing to photograph same-sex commitment ceremonies facially discriminates against persons of a certain sexual orientation. Elane Photography claims there is no prima facie case of discrimination because it did not decline photography services to Willock because of her sexual orientation. Rather, Elane Photography “declined [Willock’s] request because [Elane Photography] company policy and its owners’ sincerely held religious and moral beliefs prohibit photographing images that convey the message that marriage can be defined other than the union of one man and one woman.” Thus, Elane Photography argues that its refusal to photograph Willoclc in one context was not based on her sexual orientation because it would have photographed W illoclc in a variety of other contexts. “If, instead, for example, Willoclc had asked Elane Photography to take portrait photos, the[n Elane Photography] would have photographed her.” Similarly, Elane Photography would photograph opposite-sex weddings between persons of any sexual orientation. Elane Photography simply could not photograph Willoclc in the “requested context of a same-sex commitment ceremony because of the message conveyed by that event and thus by their photography.” This argument, however, attempts to justify impermissible discrimination by distinguishing Willoclc’s participating in a same-sex commitment ceremony from her status as a member of a protected class and is without merit. In this context the United States Supreme Court has “declined to distinguish between status and conduct.” Christian Legal Soc’y v. Martinez, ___ U.S. ___, ___,
{21} Elane Photography also poses another hypothetical situation in support of its argument. The hypothetical involves an African-American photographer’s refusal to photograph a Ku-Klux-Klan rally because the photographer wanted to “refrain from using her photography to communicate a message that she finds deeply offensive.” Elane Photography claims that “[i]t would be absurd to find (and this Court would, no doubt, decline to conclude) that the photographer discriminated against the Klan member because of his race.” This argument fails as a matter of law. As the district court stated that “[o]nce one offers a service publicly, they must do so without impermissible exception. Therefore, [Elane Photography] could refuse to photograph animals or even small children, just as an architect could design only commercial buildings and not private residences.” What Elane Photography’s hypothetical fails to address is the fact that, like animals, small children, and private residences, the Ku-Klux-Klan is not a protected class. Sexual orientation, however, is protected.
{22} We conclude that Willoclc has met her burden of demonstrating that Elane Photography intentionally discriminated against her because of her sexual orientation. See Sonntag v. Shaw,
{23} Only one conclusion could be drawn from the above evidence — that Elane Photography discriminated against Willock for invalid reasons. As a result, Willock has made a prima facie case of discrimination in violation of Section 28-l-7(F). Willock presented sufficient evidence to prove that in refusing to photograph Willock’s same-sex ceremony, Elane Photography made a distinction based on Willock’s sexual orientation. Because this evidence was not materially in dispute, we affirm the district court’s denial of Elane Photography’s motion for summary judgment and the grant of Willock’s motion for summary judgment based upon the NMHRA.
B. FREEDOM OF EXPRESSION
{24} Having determined that Elane Photography violated the NMHRA, we must also look at whether applying the NMHRA under these circumstances would nonetheless violate Elane Photography’s freedom of expression protected by the federal and state constitutions. See U.S. Const, amend. I; N.M. Const, art. II, § 17. Elane Photography contends that “[t]he wedding photography produced by Elane Photography, as well as the artistic skills and creative processes that [Elane Photography] uses to create those photographs, constitutes artistic expression entitled to First Amendment protection.” The First Amendment’s freedom of expression applies not only to the written or spoken word, but also to expressive conduct and artistic expression. See Rumsfeld v. Forum for Academic & Inst. Rights, Inc.,
{25} Elane Photography seeks to shield its commercial conduct from governmental regulation on the basis of the First Amendment’s protection of expression. As such, the threshold question is whether Elane Photography’s conduct is predominantly expressive. See id.; Rumsfeld,
{26} Similarly, the First Amendment does not apply when a law regulates conduct rather than expression. See Rumsfeld,
{27} Similarly, we are unpersuaded by Elane Photography’s argument that a photographer serves as more than a mere conduit for another’s expression. See Turner Broad. Sys., Inc., v. F.C.C.,
{28} Here, as in Rumsfeld, the NMHRA regulates Elane Photography’s conduct in its commercial business, not its speech or right to express its own views about same-sex relationships. As a result, Elane Photography’s commercial business conduct, taking photographs for hire, is not so inherently expressive as to warrant First Amendment protections. The conduct of taking wedding or ceremonial photographs, unaccompanied by outward expression of approval for same-sex ceremonies, would not express any message from Elane Photography. Similar to Rumsfeld, an observer who merely sees Elane Photography photographing a same-sex commitment ceremony has no way of knowing if such conduct is an expression of Elane Photography’s approval of such ceremonies. Instead, such an observer might simply assume that Elane Photography operates a business for profit and will accept any commercially viable photography job. Without Elane Photography’s explanatory speech regarding its personal views about same-sex marriage, an observer might assume Elane Photography rejected Willock’s request for any number of reasons, including that Elane Photography was already booked, or did not want to travel. Finally, even if Elane Photography chose to publically display oruse photographs of Willock’s same-sex ceremony for its own business purposes, an observer might simply assume the photographs reflect the quality of their work. In no context would Elane Photography’s conduct alone send a message of approval for same-sex ceremonies. Without explanatory speech, the act of photographing a same-sex ceremony does not express any opinions regarding same-sex commitments, or disseminate a personal message about such ceremonies.
{29} Similarly, unlike the parade organizers in Hurley, here, Elane Photography is not the speaker. By taking photographs, Elane Photography does not express its own message. Rather, Elane Photography serves as a conduit for its clients to memorialize their personal ceremony. Willock merely asked Elane Photography to take photographs, not to disseminate any message of acceptance or tolerance on behalf of the gay community. Moreover, the NMHRA prohibits discriminating in services offered to the public, but it does not require Elane Photography to identify with its clients or publically showcase client photographs. Elane Photography generally retains copyright on all photographs and displays them on Elane Photography’s website, but as Willock points out, these are “discretionary business practices.” Elane Photography could choose not to retain the copyright or otherwise display the photographs for viewing. Without Elane Photography taking further actions to broadcast or disseminate the Willock photographs, Elane Photography’s conduct in accepting or refusing services does not express a message. As a result, regulating Elane Photography’s discriminatory conduct does not violate the First Amendment.
{30} The NMHRA does not force Elane Photography to endorse any message or modify its own speech in any way. Rather, the NMHRA requires Elane Photography merely to offer its photography services without discrimination against any member of a protected class. As such, the NMHRA is a neutral regulation of commercial conduct and does not infringe upon freedom of speech or compel unwanted expression, and we affirm the district court’s decision on that issue.
C. FREEDOM OF RELIGIOUS EXERCISE
{31} Elane Photography also argues that “applying the [NMJHRA to force Elane Photography to photograph Willock’s ceremony, and thus engage in conduct that its owners believe is disobedient to God’s commands, would infringe [on Elane Photography’s] and its owners’ free[]exercise of religion under the [fjederal and [s]tate [constitutions.” Elane Photography argues that this Court should apply a strict scrutiny analysis for three reasons: (1) the New Mexico state constitution provides broader protections than the federal constitution, (2) the NMHRA is not generally applicable, and (3) the hybrid rights theory mandates strict scrutiny.
I. The New Mexico Constitution
{32} The New Mexico Constitution states that “[n]o person shall be required to attend any place of worship or support any religious sect or denomination.” N.M. Const, art. II, § II. As a preliminary matter, Elane Photography contends that the state constitution provides broader protection than the federal constitution and, therefore, this Court should not use federal standards to analyze the state constitutional claim. Elane Photography asks this Court to interpret Article II, Section 11 of the New Mexico constitution as a per se ban on compelled physical presence at any place of worship. It asserts that the New Mexico constitution provides “‘broader protection’... because of, among other things, ‘distinct state characteristics.’” But ifNew Mexico has ever recognized such a broader interpretation, Elane Photography has failed to cite any precedent in its brief to support this interpretation. See Wilburn v. Stewart,
{33} Article II, Section 11 and the federal free exercise and establishment clauses speak to compulsory participation in religious worship or observance. See Friedman v. Bd. of Cnty. Comm’rs of Bernalillo Cnty.,
2. The General Applicability of the NMHRA
{34} A state implicates the free exercise clause when it places burdens upon religious practitioners because of their affiliation or beliefs. But “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Emp’t Div., Dep’t of Human Res. of Oregon v. Smith,
{35} The principle of neutrality and general applicability relied upon in Smith was recently reconfirmed in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., __ U.S. __, __,
{36} Elane Photography claims that the NMHRA is not a statute of general applicability because it contains “secular and religious categorical exemptions that undermine the statute’s general purpose.” We •disagree. A statute is generally applicable when it does not impose burdens on select groups. See Cohen v. Cowles Media Co.,
{37} Unlike Lukumi, the case at bar is generally applicable and neutral; it does not selectively burden any religion or religious belief. The NMHRA applies generally to all citizens transacting commerce and business through public accommodations that deal with the public at large, and any burden on religion or some religious beliefs is incidental and uniformly applied to all citizens. See Christian Legal Soc’y, ___U.S. at ___ n.27,
3. Strict Scrutiny Based Upon a Hybrid-Rights Theory
{38} Elane Photography also argues that strict scrutiny should be applied because it has asserted a hybrid-rights claim. See Wisconsin v. Yoder,
{39} Elane Photography asserts that it has presented a valid hybrid-rights claim based upon its free exercise claim that was combined with a freedom of expression claim and also a compelled-speech claim. It also asserts that either the freedom of expression claim or the compelled-speech claim had a fair probability or likelihood of success on the merits and, therefore, was colorable. Based upon its review of the facts and legal issues presented by Elane Photography, including its doubts about the hybrid-rights theory generally, the district court found that the hybrid-rights theory was not established in this case. Without making any determination that this Court has or should recognize a hybrid-rights theory as discussed in Health Services, we will proceed to review Elane Photography’s claims based upon the “colorability” standard recognized by the Tenth Circuit.
{40} Although the district court did not address the issue of “colorability” in any detail, we agree with its finding that Elane Photography failed to establish a claim based upon the hybrid-rights theory. We have already reviewed both of Elane Photography ’ s freedom of expression and compelled-speech claims above. We agreed with the district court that both claims were not viable on the merits and that summary judgment in favor of Willock was proper in both instances. Because of our previous analysis of the freedom of expression and compelled-speech claims, we determine that there was not a fair probability, or a likelihood, of success on these companion claims. As a result, Elane Photography is not entitled to a heightened scrutiny analysis for its free exercise claim based upon an application of the hybrid-rights theory.
{41} Moreover, even if a compelling state interest were required, we agree with the district court that the burden on freedom of religion experienced by Elane Photography is unclear. “Congress and the courts have been sensitive to the needs flowing from the [fjree [ejxercise [cjlause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs.” United States v. Lee, 455 U.S.252, 261 (1982). Elane Photography was created as a limited liability company and was organized to do business in New Mexico. Elane Photography voluntarily entered public commerce and, by doing so, became subject to generally applicable regulations such as the NMHRC. “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes [that] are binding on others in that activity.” Lee,
{42} Elane Photography argues that application of the NMHRA “effectively den[ies] Elane Photography and its owners the civil privilege of lawfully operating their photography business simply because of their religious beliefs.” Elane Photography argues that the district court’s analysis and application of Swanner v. Anchorage Equal Rights Comm’n,
Id. at 283.
{43} Elane Photography claims Alaska’s Swanner analysis is inapplicable because the New Mexico constitution provides that “no person shall ever be molested or denied any civil or political right or privilege on account of his religious opinion.” N.M. Const, art II. §11. Applying the NMHRA, however, only mandates that Elane Photography not use its personal religious beliefs to circumvent laws of general applicability that proscribe discrimination in commerce. This does not deny Elane Photography the right to express its religious opinion. The owners are free to express their religious beliefs and tell Willock or anyone else what they think about same-sex relationships and same-sex ceremonies. However, like the landlord in Swanner and the owners of all other public accommodations, Elane Photography may not discriminate in its commercial activities againstprotected classes as the basis for expressing its religious opinion.
D. NEW MEXICO RELIGIOUS FREEDOM RESTORATION ACT
{44} The New Mexico Religious Freedom Restoration Act (NMRFRA) prohibits a government agency from restricting aperson’s free exercise of religion unless the restriction is generally applicable, does not discriminate against religion, and the application of the restriction is essential to, and the least restrictive means of, furthering a compelling government interest. Sections 28-22-1 to -5. Again, on summary judgment, we review this question of statutory law de novo. Self,
{45} Elane Photography claims that the NMRFRA is applicable to the case at bar and is not limited to suits involving government agencies. Willock responds that the NMRFRA can only be applied to suits involving government agencies as adverse parties because the only relief allowed is for (1) injunctive or declaratory relief against a government agency, and (2) damages pursuant totheTortClaimsAct(NMSA1978, §§ 41-4-1 to 41-4-27) (1976, as amended through 2009). See § 28-22-4(A)(l) & (2). A “governmental agency” is also a defined term that “means the state or any of its political subdivisions, institutions, departments, agencies, commissions, committees, boards, councils, bureaus or authorities.” Section 28-22-2(B).
{46} The text of the NMRFRA is clear in limiting its scope to cases in which a “government agency” has restricted aperson’s free exercise of religion. Section 28-22-3. Elane Photography claims thatthe language of the statute authorizing a litigant to “assert [a NMRFRA] violation as a claim or defense in a judicial proceeding” allows cases between private parties. Section 28-22-4(A). Elane Photography takes this language out of context. In context, parties may raise NMRFRA violations as a claim or defense to “obtain appropriate relief against a government agency}.]” Id. Willock is not included in the definition of a “government agency” under the NMRFRA, and this statute was not meant to apply in suits between private litigants. See § 28-22-2(B); see also Tomic v. Catholic Diocese of Peoria,
{47} However, in Hankins v. Lyght, the Second Circuit held that the USRFRA did apply to a suitbetween two private parties, but admitted that it could not find a single court holding that supported its novel application of the USRFRA.
III. CONCLUSION
{48} We hold that Elane Photography’s refusal to photograph Willock’s commitment ceremony violated the NMHRA. In enforcing the NMHRA, the NMHRC and the district court did not violate Elane Photography’s constitutional and statutory rights based upon freedom of speech, freedom of expression, freedom of religion, and the NMRFRA. We affirm the district court’s denial of Elane Photography’s motion for summary judgment and its decision to grant Willock’s motion for summary judgment.
{49} IT IS SO ORDERED.
I CONCUR:
Concurrence Opinion
(specially concurring).
{50} I concur in the majority opinion. I write separately to address Article II, Section II of the New Mexico Constitution, which reads, in its entirety,
Every man shall be free to worship God according to the dictates of his own conscience, and no person shall ever be molested or denied any civil or political right or privilege on account of his religious opinion or mode of religious worship. No person shall be required to attend any place of worship or support any religious sect or denomination; nor shall any preference be given by law to any religious denomination or mode of worship.
Its federal counterpart, the First Amendment, provides, in pertinent part, that “Congress shall make no law . . . prohibiting the free exercise” of religion.
{51} Elane Photography argues that the N ew Mexico constitutional provision pro vides broader protection than the First Amendment, and, therefore, the NMHRA infringes on Elaine’s religious freedom under the New Mexico Constitution, even if it does not infringe on her rights under the First Amendment. The majority opinion analyzes Elane Photography’s free exercise of religion claim under federal standards.
{52} I agree with Elane Photography that the New Mexico Constitution may provide broader protection than the First Amendment. Elane Photography specifically points to the language of the second sentence of Article II, Section 11 that it argues “prohibits the government from requiring a person to attend a place of worship” as being “distinctive” from the First Amendment. It contends that “Elaine would have been forced to ‘attend’ [a religious] ceremony to photograph it.” While I agree that the language of Article II, Section II is different from that of the First Amendment, I do not agree with Elane Photography that there was an infringement of Article II, Section 11 rights based on this language. The nub of Elaine’s religious freedom argument is not that she was compelled to attend aplace of worship or even a religious ceremony. Nothing in the facts indicates that when Elane Photography declined the job Elaine knew that there was any religious aspect to the ceremony she was asked to attend.
{53} Rather, the language of Article II, Section 11 that to me captures Elane Photography’s religious freedom position is the first sentence, stating that “[e]very man shall be free to worship God according to the dictates of his own conscience” and prohibiting the denial of any “privilege on account of his religious opinion.” This language, which focuses on a person’s freedom to act in accordance with one’s conscience concerning one’s religious opinion or worship, seems broader than the First Amendment language that focuses on preventing federal laws that “prohibit” a person’s free exercise of religion. See Humphrey v. Lane,
{54} However, this Court can only review issues that have been properly preserved for review below. Rule 12-216(A) NMRA. Our Supreme Court has adopted the interstitial approach to preserve an argument that the New Mexico Constitution provides greater protection than its federal counterpart. Gomez,
[wjhere a state constitutional provision has previously been interpreted more expansively than its federal counterpart, trial counsel must develop the necessary factual base and raise the applicable constitutional provision in trial court. Where the provision has never before been addressed under our interstitial analysis, trial counsel additionally must argue that the state constitutional provision should provide greater protection, and suggest reasons as to why, for example, a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.
State v. Leyva,
{55} Interpreting Article II, Section 11 differently from the First Amendment is an issue of first impression. Thus, Elane Photography argued to the district court that the New Mexico constitutional language was broader than the First Amendment. However, it did so only with respect to the language of the second sentence of Article II, Section 11 relating to attendance of a place of worship. It did not argue that the first sentence provided broader protection, and thus it did not invoke a ruling from the district court that the language of the first sentence provides broader protection than the First Amendment. It therefore did not preserve under Rule 12-216(A) an argument based on the language of the first sentence of Article II, Section 11 that the NMHRA infringed upon Elaine’s freedom “to worship God according to the dictates of [her] own conscience.” Although the language of Article II, Section 11 is different from that of the First Amendment and may provide broader protection, determination of its scope remains for another day.