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Valparaiso Univ. Law School

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Monday, August 26, 2013

Freedom Not to Contract: In New Mexico, Not So Much

Rainbow FlagFriday's New York Times included this story that might be of interest to Hurly v. Eddingfield fans.  As readers of this blog should recall, Hurley is a case about a doctor who refused to see his deathly ill patient, giving no reason and despite a proffer of payment and having no excuse for his refusal.  We have blogged about the case previously here and here.  The point of the case is that the doctor is not contractually obligated to come to the aid of his patient, and the law will not impose on him an obligation to enter into such a contractual obligation unwillingly.   

As many of my students find it a bad state of affairs if a doctor cannot be compelled to treat her patient, when she is the only doctor available and she has no reason for refusing to do so, I assure them that there are non-contractual mechanisms -- state or professional codes -- for that may address Hurley's facts.  Friday's story in the Times illustrates how this can work.

Vanessa Willock (Willock) contacted Elane Photography, LLC (Elane), to determine whether Elane would be available to photograph her commitment ceremony/wedding to another woman.  (New Mexico's Supreme Court explains that although Willock at first referred to the ceremony as a commitment ceremony, the parties also referred to the event as a wedding, and the court used the terms interchangeably.)  Elane's lead photographer is opposed to same-sex marriage and will not photoraph events that violate her religious beliefs.  

Represented by the Washington-based Alliance Defending Freedom, Willock sued, citing New Mexico's constitutional Human Rights Act, which was revised in 1972 to prohibit discrimination on the basis of sexual orientation.  Elane claimed that forcing it to photograph Willock's commitment ceremony/wedding violated its First Amendment Rights.  Eugene Volokh has blogged extensively on the case (e.g., here), and he filed an amicus brief in the case.  Volokh characterized his position and that of his fellow amici as follows: "All the signers of the brief support same-sex marriage rights; our objection is not to same-sex marriages, but to compelling photographers and other speakers works that they don’t want to create."

New Mexico's Supreme Court (and all other courts that heard the case) ruled in favor of Willock. Willock sought only a declaratory judgment that Elane had violated New Mexico's Human Rights Act.  Willock sought no other remedy.  We leave the constitutional issues to Volokh and others with greater claims of expertise.  We note, however, that the effect of the ruling is that New Mexico's constitutional interest in prohibiting discrimination trumps the common law contractual principle of freedom of contract.  Unlike the doctor in Hurley, Elane's must contract with people with whom it does not want to contract, even though, also unlike doctor in Hurley, Elane's has grounds for its unwillingness to contract sounding in constitutional principles of freedom of speech and freedom of religion.  

The Times provides the full text of the case, Elane Photograhpy, LLC v. Willock.

[JT]

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