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Photographing Same-Sex Weddings: Do I Have a Choice?

Maybe; maybe not. It depends on your state laws, and even then there are still some things left to interpretation. 

In light of the U.S. Supreme Court’s landmark decision in Obergefell v. Hodges legalizing same-sex marriage, I thought it was timely to bring you a summary of the Supreme Court’s decision and how it will affect your work.

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Obergefell v. Hodges

Today, the Supreme Court settled two major questions:

  1. Whether same-sex marriage is up to the states to provide or prohibit, or whether it is a right protected by the constitution;

AND

  1. Whether a state must recognize a marriage that was legally performed in another state.

In an opinion written by Justice Anthony Kennedy, the court ruled that marriage is a fundamental liberty, “central to individual dignity and autonomy,” protected by the Fourteenth Amendment, and that same-sex couples may not be denied that right under the Equal Protection and Due Process clauses of the Fourteenth Amendment. (Opinion p. 10) The obligation of states to recognize same-sex marriage also falls under the Fourteenth Amendment, but becomes moot because the Constitution mandates that all states must allow same-sex marriage. (Opinion p. 28)

The Fourteenth Amendment’s Due Process Clause protects the enumerated rights in the Bill of Rights, but also extends “to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” (Syllabus p. 2) Describing marriage, Kennedy writes that “[r]ising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.” (Opinion p. 3) The court reviews its history of finding that marriage and intimacy are profound individual rights, finding precedence in its rulings in interracial marriage case Loving v. Virginia, contraceptive case Griswold v. Connecticut, and gay rights case Lawrence v. Texas. Kennedy goes on to say that what the Constitution protects, and what the petitioners are requesting, is “equal dignity in the eyes of the law.” (Opinion p. 28)

Strict constructionists and originalists oppose this finding of non-enumerated rights in the Fourteenth Amendment. But the opinion addresses the Constitution as a dynamic document, evolving with our ever-changing understanding of liberty.

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed. (Opinion p. 11)

The opinion also discounts the argument that same-sex marriage, as a fundamental right, should be up to the states to decide by saying “[a]n individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act…This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’” (Opinion p. 24)

Finally, the opinion also contains language limiting it’s reach, specifying, “these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.” (Opinion p. 27) In an apparent attempt to comfort those who are afraid that this decision will force their churches to perform same-sex marriages, Kennedy writes that “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” (Opinion p. 27) But finds that “[t]he Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” (Opinion p. 27)

 

Photographer’s Rights & Obligations

As a photographer, you are probably familiar with a 2014 New Mexico Supreme Court decision ruling that a photographer’s refusal to photograph a same-sex wedding was a violation of New Mexico’s Human Rights Act. New Mexico’s Supreme Court legalized same-sex marriage in 2013. Opponents of the lawsuit argued that forcing the photographer to photograph a same-sex wedding was a violation of her religious freedom or first amendment freedom of artistic expression. Because the U.S. Supreme Court declined to rule on the New Mexico court’s decision, the state’s decision held, and this debate moved to the states. A few states have introduced legislation meant to protect business owners’ religious freedoms and legalizing their ability to decline services to same-sex couples based on their beliefs. However, in states that have anti-discrimination protection, a business owner generally may not refuse to serve customers based on their sexual orientation.

Let’s dig in a little more about what a business-owner’s rights and obligations are when it comes to same-sex marriage. And for those of you historically inclined, I’ve even included a comprehensive overview of the history of same-sex marriage legislation and judgments across the land at the end of this article.

 

States with Equal Rights Protection for Same-Sex couples

As we discussed above, New Mexico provides equal protection for same-sex couples. The state supreme court’s decision makes clear that a photographer cannot refuse to serve a same-sex couple because of their sexual orientation. In similar cases, one involving a florist in Washington and another involving a baker in Colorado, courts have also ruled that the business violated the state’s anti-discrimination laws, by refusing to provide their services to a same-sex couple.

Another note: everyone in the U.S. is covered by the Federal Civil Rights Act of 1964, which prohibits discrimination by privately owned places of public accommodation on the basis of race, color, religion or national origin; the Americans with Disabilities Act similarly protects the disabled. “Public accommodation” generally means businesses open to the public, like hotels, restaurants, and shops. But federal law does not include sexual orientation as a protected class. So, in addition to federal protection, twenty-one states and Washington, D.C. have laws that prohibit discrimination based on sexual orientation. These states are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Nevada, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

For businesses operating in states with such anti-discrimination laws that include sexual orientation, refusing to provide your service to someone’s same-sex marriage could land you in hot water. The important thing to note in these high-profile cases is that the business owners specifically refused provide their service or product at the same-sex couple’s wedding, because they were against same-sex marriage. In fact, the florist did business with the couple in question for many years, until they requested her services at their wedding. If the businesses refused service because of reason unrelated to sexual orientation, such as a scheduling conflict, then theoretically they would not be running afoul of these anti-discrimination laws. And whether these laws apply to businesses without dedicated storefronts or service-only based businesses depends on each state’s specific law and how it’s applied by the courts.    

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Today’s Supreme Court decision does not appear to affect the existence (or absence) of anti-discrimination laws in the states, but it will likely influence more states to include sexual orientation as a protected class under their anti-discrimination laws.  

If you’d like more information about the ruling in each state (or just your state) prior to today’s U.S. Supreme Court ruling, I’ve put that below:

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States that permitted Same-Sex Marriage before Obergefell

State recognition of same-sex marriage has undergone a rapid evolution over the past two years. Prior to the Supreme Court’s ruling in Obergefell, thirty-seven states and the District of Columbia recognized same-sex marriage. These recognitions have come about through federal and state court rulings, citizen referendum, and legislation, and most are relatively recent. Here is a summary of the law in each state where same-sex marriage was legalized how it came about.  

 

Court Rulings in the States

In Alabama, a federal judge ruled that the state’s ban on same-sex marriage was unconstitutional, but the state supreme court intervened and ordered a halt to issuing same-sex marriage licenses. The federal judge responded by ordering state clerks to issue the licenses, and the U.S. Supreme Court agreed, but the state supreme court continued to defy those rulings.

In 2014, federal district judges in Alaska, and Arizona ruled the states’ bans on same-sex marriage were unconstitutional for violating the Constitution’s equal protection clause.

California’s history with same-sex marriage is more complex. Its state supreme court originally ruled same-sex marriage legal, but then voters passed Proposition 8 barring same-sex marriage. A federal judge then ruled Proposition 8 unconstitutional, and in 2013 the U.S. Supreme Court affirmed his ruling on procedural grounds. It did not rule on the constitutionality of same-sex marriage at that time.

Kansas federal judge granted an injunction against the enforcement of the state’s ban in late 2014, but due to the state’s interpretation of the ruling, only about half of the counties in Kansas would issue a marriage license to a same-sex couple. A Florida federal judge granted a similar injunction in early 2015.

As was becoming commonplace by the middle of 2014, federal judges in Idaho and Indiana struck down those states’ bans as a violation of equal protection. Pennsylvania’s ban was also struck down by a federal judge in mid-2014.  

Massachusetts was the first state to legalize same-sex marriage, when its state supreme court in 2003 ruled that refusing to grant same-sex couples a marriage license violated the Massachusetts Constitution. The court gave state agencies a few months to comply, and the state began issuing licenses in early 2004. Connecticut also was an early adopter of same-sex marriage, when it’s state supreme court ruled in favor of it in 2008. Iowa’s state supreme court did the same in 2009. New Jersey’s supreme court ruled in favor of same-sex marriage following the Supreme Court’s ruling overturning the federal Defense of Marriage Act in 2013.

 

Circuit Courts of Appeals Rulings

In 2014, the United States Circuit Courts of Appeals weighed in and settled some of the conflict out of the federal district courts. The 4th Circuit Court of Appeals struck down the ban on same-sex marriage in Virginia, and it’s ruling affected Maryland (where it was already legal), North Carolina, South Carolina, and West Virginia. District Judges in North Carolina and South Carolina then ruled in accordance that its ban was unconstitutional. West Virginia’s attorney general declined to pursue appeals. The 7th Circuit Court of Appeals struck the bans down in Indiana and Wisconsin; Illinois had already legalized it. The 10th Circuit Court of Appeals also found the same-sex marriage bans in Utah and Oklahoma unconstitutional as violations of the equal protection clause.

These circuit cases were appealed to the United States Supreme Court, who, in late 2014, allowed the rulings in the 4th, 7th, and 10th Circuits to stand by denying to hear the appeals. With that decision, no states in the 10th Circuit could legally ban same-sex marriage. And because it falls under the 10th Circuit, Colorado’s Attorney General ordered clerks to begin issuing marriage licenses to same-sex couples that year. A federal district judge in Wyoming struck down its ban in accordance with the 10th Circuit decision, and the governor declined to appeal the ruling. Soon after, the 9th Circuit Court of Appeals struck down bans in Nevada and Idaho, and its decision influenced rulings in Arizona, and Montana, striking down the bans in those states.

But a month after the Supreme Court’s denial of the appeals in the 4th, 7th, and 10th Circuits, the 6th Circuit Court of Appeals detracted and upheld the bans in Kentucky, Michigan, Ohio, and Tennessee. This is what’s known as a “circuit split,” and it generally prompts Supreme Court intervention.

The Supreme Court then granted certiorari to hear the 6th Circuit case, which was consolidated under the name Obergefell v. Snyder. They heard oral arguments earlier this year, and today issued the opinion that bans on same-sex marriage is unconstitutional because it violates the 14th Amendment’s equal protection clause.

 

Legislation

Vermont in 2009 was the first state to codify same-sex marriage without being prompted by a court ruling. The next year, New Hampshire passed legislation allowing same-sex marriage, as did Washington, D.C. Over the next few years, New York (2011), DelawareRhode IslandMinnesotaHawaii (all in 2013), and Illinois (2014) followed.

 

Popular Vote

MaineMaryland, and Washington codified same-sex marriage through popular vote, all between the end of 2012 and in early 2013. In Maryland and Washington, the legislature passed a law that was then put to the voters by referendum.

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States where Same-Sex Marriage was Unavailable

In 13 states, same-sex marriage was outlawed by a constitutional and/or legislative ban on same-sex marriage. These states were Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri (see below), Nebraska, North Dakota, Ohio, South Dakota, Tennessee, and Texas.  Many of these laws were challenged, and not all of them were defeated. As discussed above, a federal appeals court upheld the bans on same-sex marriage in Kentucky, Michigan, Ohio, and Tennessee.

 

Outstanding Appeals Pending Supreme Court Ruling

Both a state and federal judge in Arkansas ruled the state’s ban on same-sex marriage was unconstitutional; the judgments are pending appeal to the Arkansas Supreme Court and the 8th Circuit Court of Appeals. A Missouri judge did the same. His ruling is on appeal to the 8th Circuit, which expedited briefing in the case even though the Supreme Court was going to be ruling on the issue. Missouri, however, recognizes same-sex marriages from other states. And a state district court struck down the ban in St. Louis, which is the only place in the state where same-sex marriage was permitted. Same-sex marriage was also on hold in Nebraska, even though a federal judge struck down its ban, because the 8th Circuit stayed the district court’s ruling. In South Dakota, the judge who struck down the ban stayed her own ruling pending the 8th Circuit appeals.

In Mississippi and Texas, federal judges overturned their respective state’s bans on same-sex marriage, but stayed their own rulings pending the 5th Circuit appeals. A judge in Louisiana upheld its ban, but that case is also on appeal to the 5th Circuit.

These pending state and federal cases are now guided by the Supreme Court’s decision today, and the various courts with outstanding cases before them will likely soon rule in favor of the same-sex marriage party in accordance with the Obergefell decision.

Photographing Same-Sex Weddings: Do I Have a Choice?

 

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