May 31, 2012 – Elane Photography, LLC v. Vanessa Willock, No. 30,203

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	May 31, 2012
NO. 30,203
ELANE PHOTOGRAPHY, LLC,
Plaintiff-Appellant,
v.
VANESSA WILLOCK,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alan M. Malott, District Judge
Becht Law Firm
Paul Becht,
Albuquerque, NM
Jordan W. Lorence,
Washington, D.C.
James A. Campbell,
Scottsdale, AZ
for Appellant

Tobias Barrington Wolff,
Philadelphia, PA
Lopez & Sakura, LLP
Julie Sakura,
Santa Fe, NM
Sarah Steadman,
Santa Fe, NM
for Appellee

OPINION
GARCIA, Judge.
{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 28-1-
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

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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

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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 28-1-2(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

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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

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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., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970
P.2d 582.
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

6
distinctly private.” Section 28-1-2(H).
{10} 	Elane Photography argues that the analytical framework set forth in Human
Rights Commission of New Mexico v. Board of Regents of University of New Mexico,
95 N.M. 576, 577-78, 624 P.2d 518, 519-20 (1981), requires this Court to legally
determine that it is not a public accommodation within the meaning of the NMHRA
because it does not fall within the historic and traditional categories of public
accommodation. In Regents, our Supreme Court looked to the previous New Mexico
statute, 	federal 	law, 	and 	the 	historical 	and 	traditional 	meanings 	of 	“public
accommodation” at that time for guidance in applying the new statutory change to a
specific higher education context. Id. Elane Photography emphasizes that Regents
is the first and only New Mexico case to address the question of what constitutes a
“public accommodation” for purposes of the NMHRA and urges this Court to adopt
a broad reading of Regents in this case. Following the reasoning discussed in Regents,
Elane 	Photography 	argues 	that 	“[t]raditional 	public 	accommodations 	provide
standardized products or ministerial services that are essential to the public at large.”
Accordingly, Elane Photography contends that because it provides “nonessential,
discretionary, unique, and expressive services to the public,” it “does not fit within,
or 	even 	remotely 	resemble” 	any 	of 	the 	traditional 	meanings 	of 	a 	public
accommodation. 	Such a broad application of Regents, however, would directly

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contradict our Supreme Court’s instructions regarding the limited application of this
particular case. Id. at 578, 624 P.2d 520.
{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 of the 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

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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, 2001-
NMCA-012, ¶ 10, 130 N.M. 168, 21 P.3d 37 (stating that where the Supreme Court
has expressly refrained from deciding a question, the lower courts are not bound by
the prior precedent); Bogle Farms, Inc. v. Baca, 1996-NMSC-051, ¶¶ 19-20, 36, 122
N.M. 422, 925 P.2d 1184 (recognizing that similar precedent will not be binding
where an issue must be decided on a case-by-case basis). As a result, we will review
all of the applicable authority to analyze whether Elane Photography is a “public
accommodation.” See Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 23, 135 N.M.
539, 91 P.3d 58 (recognizing that when it is considering claims under the NMHRA,
our Supreme Court will look at federal civil rights adjudication for guidance in
interpreting the NMHRA).
{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, 2007-NMCA-159, ¶ 17, 143 N.M. 84, 173 P.3d 6 (“The
plain language of the statute is our primary guide to legislative intent, and we will give
persuasive weight to any administrative construction of statutes by the agency charged

9
with administering them.”); Bd. of Educ. v. N.M. State Dep’t of Pub. Educ., 1999-
NMCA-156, ¶ 16, 128 N.M. 398, 993 P.2d 112 (“The primary purpose of statutory
interpretation is to ascertain and give effect to legislative intent.” (internal quotation
marks and citation omitted)). When addressing the plain language of a statute, the
words are given their ordinary meaning, and we will not resort to further interpretation
unless the language is ambiguous. Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 37,
147 N.M. 583, 227 P.3d 73 (“[W]hen a statute contains language [that] is clear and
unambiguous, we must give effect to that language and refrain from further statutory
interpretation.” (internal quotation marks and citation omitted)); Marbob Energy
Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206
P.3d 135 (“Only if an ambiguity exists will we proceed further in our statutory
construction analysis.”); N.M. Indus. Energy Consumers v. N.M. Pub. Regulation
Comm’n, 2007-NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d 105. Elane Photography
does not claim that the language used in Section 28-1-2(H) is ambiguous. Instead,
Elane Photography asks this Court to determine either that photography does not
involve an essential service under the prior statute’s more narrow interpretation of
“public accommodations,” or to recognize an exception for any business that includes
a creative, expressive, or artistic component protected by the First Amendment. It is
well recognized that we “will not read into a statute . . . language which is not there,

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particularly if it makes sense as written.” Johnson v. N.M. Oil Conservation Comm’n,
1999-NMSC-021, ¶ 27, 127 N.M. 120, 978 P.2d 327 (internal quotation marks and
citation omitted).
{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 28-1-2(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, 2004-NMSC-018, ¶ 23.
{15} 	Cases addressing public accommodations statutes with similarly broad language

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support a national trend that has expanded the traditional definition of business
activity that constitutes a “public accommodation.” 	See Roberts, 468 U.S. at 626;
D’Amico v. Commodities Exch. Inc., 652 N.Y.S.2d 294, 296 (N.Y. App. Div. 1997);
Burks v. Poppy Constr. Co., 370 P.2d 313, 317 (Cal. 1962) (in bank); Pa. Human
Relations Comm’n v. Alto-Reste Park Cemetery Ass’n, 306 A.2d 881, 885-87 (Pa.
1973). 	For example, in Roberts, 468 U.S. at 612, 616, the United States Supreme
Court addressed constitutional attacks on a Minnesota Supreme Court opinion holding
that a non-profit membership organization whose bylaws limited membership to men
was a public accommodation. 	The United States Supreme Court 	noted that
“Minnesota has adopted a functional definition of public accommodations that reaches
various forms of public, quasi-commercial conduct.” Id. at 625. The United States
Supreme Court reasoned that “[t]his expansive definition reflects a recognition of the
changing nature of the American economy.” Id. at 626. The United States Supreme
Court also emphasized that the “fundamental object [of civil rights] was to vindicate
the deprivation of personal dignity that surely accompanies [the] denial[] of equal
access to public establishments.” 	Id. at 625 (internal quotation marks and citation
omitted).
{16} 	The Superior Court of New Jersey supported a similarly expansive definition
of a public accommodation, concluding “that the hallmark of a place of public

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accommodation [is] that ‘the public at large is invited[.]’” Nat’l Org. for Women v.
Little League Baseball, Inc., 318 A.2d 33, 37 (N.J. Super. Ct. App. Div. 1974). The
Superior Court also noted that “we are warranted in placing considerable weight on
the construction of the statute by the administrative agency charged by the statute with
the responsibility of making it work.” Id. (alteration, internal quotation marks, and
citation omitted).
{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., 189 P.3d 959, 965 (Cal.
2008) (physician group); Matter of U.S. Power Squadrons v. State Human Rights
Appeal Bd., 452 N.E.2d 1199, 1203 (N.Y. 1983) (boating safety courses and
membership); D’Amico, 625 N.Y.S.2d at 296 (commodities exchange trading floor);

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In re Johnson, 427 P.2d 968, 973 (Wash. 1967) (barber shop); Crawford v. Kent, 167
N.E.2d 620, 621 (Mass. 1960) (en banc) (private dance school). 	Jurisdictions that
have recognized broader definitions for public accommodations acknowledge the
changing landscape of modern commerce and that the definition of a public
accommodation has been expanded over the years. See Roberts, 468 U.S. at 626.
{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.

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2. 	Discrimination Based on Sexual Orientation
{19} 	Having 	determined 	that 	Elane 	Photography 	constitutes 	a 	public
accommodation, we must next look at whether Elane Photography violated the
NMHRA by discriminating against Willock on the basis of sexual orientation. 	See
§ 28-1-7(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., 113 N.M. 366, 369, 826 P.2d 962, 965 (1992) (internal quotation
marks and citation omitted). Again, we rely on federal adjudications for guidance in
analyzing claims brought under the NMHRA. 	See Ocana, 2004-NMSC-018, ¶ 23.
In a discrimination case, the complainant has the initial burden of establishing a prima
facie case of discrimination, see McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973), and may do so with direct or indirect proof. See Martinez, 113 N.M. at
369, 826 P.2d at 965. “Summary judgment is appropriate where there are no genuine
issues of material fact and the movant is entitled to judgment as a matter of law.” Self,
1998-NMCA-046, ¶ 6.
{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

15
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 Willock in one context was not based on her
sexual orientation because it would have photographed Willock in a variety of other
contexts. 	“If, instead, for example, Willock 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 Willock 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 	Willock’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. ___, ___, 130 S.Ct. 2971, 2990 (2010); see also Lawrence v.
Texas, 539 U.S. 558, 575 (2003) (“When homosexual conduct is made criminal by the

16
law of the State, that declaration in and of itself is an invitation to subject homosexual
persons to discrimination.”). “While it is true that the law applies only to conduct, the
conduct targeted by this law is conduct that is closely correlated with being
homosexual. Under such circumstances, [the] law is targeted at more than conduct.
It is instead directed toward gay persons as a class.” 	Lawrence, 539 U.S. at 583
(O’Connor, J., concurring); see e.g., Bray v. Alexandria Women’s Health Clinic, 506
U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).
{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-

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Klux-Klan is not a protected class. Sexual orientation, however, is protected.
{22} 	We conclude that Willock has met her burden of demonstrating that Elane
Photography intentionally discriminated against her because of her sexual orientation.
See Sonntag v. Shaw, 2001-NMSC-015, ¶ 11, 130 N.M. 238, 22 P.3d 1188 (explaining
that to prevail in an employment discrimination cause of action, a plaintiff must
demonstrate, 	by 	direct 	or 	indirect 	evidence, 	that 	a 	defendant 	intentionally
discriminated against her on the basis of her sex). Elane Photography categorically
refuses to photograph same-sex weddings, and told Willock of this categorical refusal
in an email. 	This categorical refusal 	constitutes direct evidence of impermissible
discrimination based upon Willock’s sexual orientation and is a violation of the
NMHRA. 	See Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 854-55 (10th Cir. 2007)
(reasoning that direct evidence of discrimination includes “proof of an existing policy
which itself constitutes discrimination,” or “oral or written statements on the part of
a defendant showing a discriminatory motivation” (internal quotation marks and
citations omitted)). Elane Photography stated that it only photographs “traditional
weddings” 	in 	response 	to 	Willock’s 	email 	inquiry 	regarding 	her 	same-sex
commitment ceremony. Willock asked for clarification of the meaning of “traditional
weddings” in a follow-up email to which Elane Photography responded “we do not
photograph same-sex weddings.” Elane Photography openly stated its discriminatory

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policy: “[w]e have chosen not to photograph anything that’s contrary to our belief
that marriage is between one woman and one man.” Additionally, Willock points to
the distinction between Elane Photography’s response to her inquiry regarding a
same-sex commitment ceremony and 	Elane Photography’s response to Partner’s
inquiry that did not specify that the ceremony was same-sex as indirect evidence of
discrimination.
{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 28-1-7(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

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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., 547 U.S. 47, 65-66 (2006); Nat’l
Endowment for the Arts v. Finley, 524 U.S. 569, 602-03 (1998). 	As a result,
“photography . . . that has a communicative or expressive purpose enjoys some First
Amendment protection.” Gilles v. Davis, 427 F.3d 197, 212 n.14 (3rd Cir. 2005); see
Kaplan v. California, 413 U.S. 115, 119-20 (1973) 	(“[P]ictures, films, paintings,
drawings, and engravings, . . . have First Amendment protection[.]”). The protection
is not lost simply because compensation is paid. See Riley v. Nat’l Fed’n of the Blind
of N.C., Inc., 487 U.S. 781, 801 (1988). “However, the fact that some photography
qualifies as expressive conduct entitled to First Amendment protection does not mean
that any commercial activity that involves photography falls under the umbrella of the
First Amendment.” State v. Chepilko, 965 A.2d 190, 199 (N.J. Super. Ct. App. Div.
2009) (recognizing that most commercial conduct is not expressive and even
overlapping conduct by a photographer is not entitled to First Amendment protection).

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{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, 547 U.S. at 66 (holding that First Amendment
protection extends “only to conduct that is inherently expressive”). “It is possible to
find some kernel of expression in almost every activity a person undertakes . . . but
such a kernel is not [always] sufficient to bring the activity within the protection of
the First Amendment.” 	City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). Under
some circumstances, even conduct that is usually expressive may not be intended to
express any message and, therefore, would not be entitled to First Amendment
protection. See Hurley v. Irish-American Gay, Lesbian and Bisexual Grp. of Boston,
515 U.S. 557, 568 (1995) (stating that although marchers in a parade are typically
expressing a collective point and therefore entitled to First Amendment protection,
marching with no purpose except to reach a destination is not entitled to First
Amendment protection).
{26} 	Similarly, the First Amendment does not apply when a law regulates conduct
rather than expression. See Rumsfeld, 547 U.S. at 66. In Rumsfeld, the United States
Supreme Court rejected a law school’s claim that the Solomon Amendment, which

21
required universities to treat military recruiters equal to other recruiters, impermissibly
regulated the school’s expressive activities. Id. at 51-55, 70. The Court explained that
“the Solomon Amendment regulates conduct, not speech. It affects what law schools
must do—afford equal access to military recruiters—not what they may or may not
say.” 	Id. at 60 (emphasis omitted). 	In an attempt to distinguish Rumsfeld, Elane
Photography argues it did not deal with an inherently expressive activity. [BIC 22-
25] But the mere fact that a business provides a good or service with a recognized
expressive element does not allow the business to engage in discriminatory practices.
See Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) (holding that a law firm may
not shield discriminatory hiring or promotion practices with the First Amendment
despite “the activities of lawyers [making] a distinctive contribution . . . to the ideas
and beliefs of our society” (internal quotation marks and citation omitted)).
{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., 512 U.S. 622, 629 (1994) (explaining that a cable operator
serves as a conduit for speech and is not a speaker itself). While Elane Photography
does exercise some degree of control over the photographs it is hired to take, in that
“it decides which pictures to take, which pictures to edit, and how to edit them[,]” this
control does not transform the photographs into a message from Elane Photography.

22
In Hurley, the United States Supreme Court explained that requiring a parade to
include openly gay, lesbian and bisexual decedents or Irish immigrants would
essentially force the parade to disseminate their message. 515 U.S. at 570. This was
because, in essence, “[p]arades and demonstrations . . . are not understood to be . . .
neutrally presented.” 	Id. at 576. 	In contrast, Rumsfeld explained that dissimilar
treatment of military recruiters was “expressive only because the law schools
accompanied their conduct with speech explaining it.” 547 U.S. at 66. For example,
“[a]n observer who sees military recruiters interviewing away from the law school has
no way of knowing whether the law school is expressing its disapproval of the
military[’s practices], all the law school’s interview rooms are full, or the military
recruiters decided . . . that they would rather interview someplace else.” Id.
{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

23
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 or use 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

24
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 [NM]HRA to force Elane
Photography to photograph Willock’s ceremony, and thus engage in conduct that its

25
owners believe is disobedient to God’s commands, would infringe [on Elane
Photography’s] and its owners’ free[]exercise of religion under the [f]ederal and
[s]tate [c]onstitutions.” 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.
1. 	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, § 11. 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
if New 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, 110 N.M. 268, 272, 794 P.2d 1197, 1201 (1990) (“Issues raised in

26
appellate briefs that are unsupported by cited authority will not be reviewed by [this
Court] on appeal.”). 	In addition, no interstitial analysis or approach has been
identified to support a deviation from federal First Amendment precedent addressing
this issue. See State v. Gomez, 1997-NMSC-006, ¶¶ 17-23, 122 N.M. 777, 932 P.2d
1 (setting out the requirements for preserving and establishing that New Mexico
precedent construes a parallel or analogous constitutional provision to provide more
protection than its federal counterpart). Finally, the proposed interpretation by Elane
Photography is attenuated and contrary to this Court’s precedent.
{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., 781 F.2d 777, 792 & n.6 (10th Cir. 1985)
(“[T]he goals of N.M. Const. art. II, [Section] 11 are the same as those served by the
[e]stablishment and [f]ree [e]xercise [c]lauses of the First Amendment.”). As such,
“[t]he New Mexico courts have discussed the First Amendment and N.M. Const. art.
II, [Section] 11 together and have cited federal case law under the First Amendment
to support their findings under both the federal and state constitutional provisions.”
Friedman, 781 F.2d at 792; see also State v. Vogenthaler, 89 N.M. 150, 151-52, 548
P.2d 112, 113-14 (Ct. App. 1976) (discussing the statute prohibiting church
desecration). As this Court and the Tenth Circuit have both treated Article II, Section

27
11 as coextensive with its federal counterpart, we will continue to use federal
standards to analyze Elane Photography’s free exercise of religion claim.
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, 494 U.S. 872, 879 (1990), superseded on other grounds by statute in,
Religious Freedom Restoration Act of 1993 (RFRA), P.L. 103-141, 107 Stat. 1488
(codified at 5 U.S.C. § 504; 42 U.S.C. §§ 1988, 2000bb, 2000bb-1 to -4) (internal
quotation marks and citation and omitted).
{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. __, __, 132 S. Ct. 694, 706-07 (2012). Elane Photography concedes
that the NMHRA is a neutral statute, but argues that the district court “improperly
conflated the concepts of neutrality and general applicability, and thus did not
separately 	analyze 	the 	general[]applicability 	requirement.” 	As 	such, 	Elane
Photography argues that we must apply a strict scrutiny analysis to its claim. 	See

28
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32
(1993) (reasoning that strict scrutiny applies to a free exercise claim where the
relevant statute is either not generally applicable or not neutral). However, “a law that
burdens religious practice need not be justified by a compelling governmental interest
if it is neutral and of general applicability.” Id. at 521.
{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., 501 U.S. 663, 670 (1991) (reasoning that a statute is generally applicable
if its application does not target or single out a group, but is generally applicable to
the daily transactions of all citizens). 	Elane Photography points to the analysis in
Lukumi to assert that NMHRA is not a law of general applicability. In Lukumi, the
United States Supreme Court’s analysis was limited. 508 U.S. at 542-43. The Court
determined that “we need not define with precision the standard used to evaluate
whether a prohibition is of general application.” 	Id. at 543. 	This limited analysis
occurred because the ordinances in question were so far below the minimum standards
of general applicability and the record disclosed that it was “the object of the
ordinances to target animal sacrifices by Santeria worshippers because of its religious

29
motivation.” 	Id. at 542. 	In Lukumi, the ordinances were “not neutral” because
“[d]espite the city’s proffered interest in preventing cruelty to animals, the ordinances
[were] drafted with care to forbid few killings but those occasioned by religious
sacrifice.” Id. at 542-43. As a result, the city had selectively imposed “burdens only
on conduct motivated by religious belief” protected by the free exercise clause of First
Amendment jurisprudence. Id. at 543.
{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, 130 S.Ct. at 2995 n.27 (explaining that “the [f]ree [e]xercise [c]lause does
not inhibit enforcement of otherwise valid regulations of general application that
incidentally burden religious conduct”); see also Branzburg v. Hayes, 408 U.S. 665,
682 (1972) (holding “the First Amendment does not invalidate every incidental
burdening . . . that may result from the enforcement of civil or criminal statutes of
general applicability”). The NMHRA is not directed at religion or particular religious
practices, but it is directed at persons engaged in commerce in New Mexico.
Therefore, the NMHRA is a law of general applicability. As such, the government

30
need not have a compelling interest to justify the burden it places on individuals who
fall 	under 	its 	proscriptions. 	Because 	a 	rational 	basis 	exists 	to 	support 	the
governmental interest in protecting specific classes of citizens from discrimination in
public accommodations, the NMHRA does not violate the free exercise clause
protections under the First Amendment.
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, 406 U.S. 205, 233 (1972)
(recognizing that a heightened scrutiny exception may be appropriate where a free
exercise claim has been coupled with some other constitutional claim). The Tenth
Circuit has noted that in order to apply the hybrid-rights theory, the claim “at least
requires a colorable showing of infringement of a companion constitutional right.”
Axson-Flynn v. Johnson, 356 F.3d 1277, 1295 (10th Cir. 2004) (internal quotation
marks and citation omitted). 	“Colorability” for the purposes of the hybrid-rights
exception requires a plaintiff to establish a “fair probability, or a likelihood, of success
on the companion claim.” Id. (internal quotation marks omitted). This middle ground
approach was adopted by the Tenth Circuit because “the hybrid-rights theory has been
roundly criticized from every quarter.” Id. at 1296. Other federal circuits have either
refused to recognize the hybrid-rights analysis in Smith as dicta, or refused to apply

31
the doctrine. See Axson-Flynn 356 F.3d at 1296 n.18; McTernan v. City of York, 564
F.3d 636, 647 n.5 (3rd Cir. 2009); Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 440
n.45 (9th Cir. 2008); Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 167 (2nd
Cir. 2001); Warner v. City of Boca Raton, 64 F. Supp. 2d 1272, 1288 n.12 (S.D. Fla.
1999); Littlefield v. Forney Indep. Sch. Dist., 108 F. Supp.2d 681, 704 (N.D. Tex.
2000); see also Lukumi, 508 U.S. at 566-71 (Souter, J., concurring) (expressing in a
concurring opinion doubts about any application of the hybrid-rights theory because
Smith does not fit with settled law and the Supreme Court’s application of the rational
basis review applied to neutral laws). 	This Court has discussed the hybrid-rights
theory in one prior case but determined that the theory was not applicable to the
plaintiff’s claims. See Health Servs. Div., Health and Env’t Dep’t v. Temple Baptist
Church, 112 N.M. 262, 267-68, 814 P.2d 130, 135-36 (Ct. App. 1991).
{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

32
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 [f]ree [e]xercise [c]lause, but every person cannot be shielded from
all the burdens incident to exercising every aspect of the right to practice religious

33
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, 455 U.S. at 253. The owners of Elane Photography must accept the reasonable
regulations and restrictions imposed upon the conduct of their commercial enterprise
despite their personal religious beliefs that may conflict with these governmental
interests.
{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 Commission, 874 P.2d 274 (Alaska 1994) is improper in this case.
Swanner similarly balanced sincerely held religious beliefs with the state’s interest in
battling discrimination. Id. at 283. Due to his religious beliefs, a landlord would not
rent to unmarried couples or roommates of the opposite sex. 	Id. at 277. Similar to

34
Elane Photography, the landlord claimed he was discriminating based on conduct, and
claimed that compliance with Alaska’s laws forced him to choose between his
religious beliefs and his livelihood. 	Id. at 278-79. 	The Swanner court rejected
landlord’s claims, stating “[the landlord] has made no showing of a religious belief
which requires that he engage in the property-rental business,” and explained that
“[v]oluntary commercial activity does not receive the same status accorded to directly
religious activity.” 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 against protected classes as the basis for
expressing its religious opinion.

35
D. 	NEW MEXICO RELIGIOUS FREEDOM RESTORATION ACT
{44} 	The New Mexico Religious Freedom Restoration Act (NMRFRA) prohibits a
government agency from restricting a person’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, 1998-
NMSC-046, ¶ 6.
{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 to the Tort Claims Act (NMSA
1978, §§ 41-4-1 to 41-4-27) (1976, as amended through 2009). See § 28-22-4(A)(1)
& (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 a person’s free exercise of religion. Section 28-

36
22-3. Elane Photography claims that the 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, 442 F.3d 1036, 1042
(7th cir. 2006) (looking at the provision of the federal Religious Freedom Restoration
Act (USRFRA) prohibiting “government” from burdening free exercise of religion to
hold that the USRFRA is applicable only to suits in which the government is a party)
abrogated 	on 	other 	grounds 	by 	Hoshana-Tabor, 	__U.S. 	__, 	132 	S.Ct. 	694;
Rweyemamu v. Cote, 520 F.3d 198, 204 n.2 (2nd Cir. 2008) (“[W]e do not understand
how [USRFRA] can apply to a suit between private parties, regardless of whether the
government is capable of enforcing the statute at issue.”).
{47} 	However, in Hankins v. Lyght, the Second Circuit held that the USRFRA did
apply to a suit between two private parties, but admitted that it could not find a single
court holding that supported its novel application of the USRFRA. 441 F.3d 96, 103-
04 (2d Cir. 2006); see id. at 115 (Sotomayor, J., dissenting) (reasoning that “[t]he

37
plain language of the statute, its legislative history, and its interpretation by courts
over the past twelve years demonstrate that the [USRFRA] does not apply to suits
between private parties”). Notably, this Court has not been provided with any post-
Hankins authority that has followed the Second Circuit’s novel application of the
USRFRA in cases between private litigants. Based upon the express language of the
NMRFRA, we also decline to follow the holding in Hankins, and conclude that the
NMRFRA is applicable only in cases that involve a government agency as an adverse
party in the litigation. 	See Johnson, 1999-NMSC-021, ¶ 27 (stating that this Court
“will not read into a statute . . . language which is not there, particularly if it makes
sense as written.” (internal quotation marks and citation omitted)); N.M. Mining Ass’n
v. N.M. Water Quality Control Comm’n, 2007-NMCA-010, ¶ 12, 141 N.M. 41, 150
P.3d 991 (“We ascertain the intent of the [L]egislature by reading all the provisions
of a statute together, along with other statutes in pari materia.”). 	The statutory
language clearly bars application of the NMRFRA to litigation between the private
parties in this case. As such, the NMRFRA is inapplicable as a matter of law.
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

38
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.
________________________________
TIMOTHY L. GARCIA, Judge
I CONCUR:
______________________________
CYNTHIA A. FRY, Judge
WECHSLER , Judge (specially concurring)

39
WECHSLER, Judge (specially concurring).
{50} 	I concur in the majority opinion. I write separately to address Article II, Section
11 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 New Mexico constitutional provision
provides 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

40
been forced to ‘attend’ [a religious] ceremony to photograph it.” While I agree that
the language of Article II, Section 11 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 a place 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, 728 N.E.2d 1039, 1044
(Ohio 2000) (holding that the Ohio constitution provides broader religious protection
than the federal free exercise clause based on language stating that “nor shall any
interference with the rights of conscience be permitted”). Since Smith, the majority

41
of state appellate courts that have interpreted their state constitutions concerning the
issue have concluded that their state constitution provides broader protection than the
First Amendment. See W. Cole Durham & Robert Smith, 1 Religious Organizations
and the Law § 2:63 (2012 Thompson Reuters) (stating that post-Smith “a total of 11
states . . . have interpreted their state constitutions’ free exercise clauses to require
strict scrutiny analysis” and “[o]nly three courts . . . have explicitly accepted Smith as
the 	proper 	standard 	for 	reviewing 	free 	exercise 	questions 	under 	their 	state
constitutions”). 	Several of these states have constitutional provisions containing
language similar to the New Mexico Constitution. See, e.g., State ex rel. Cooper v.
French, 460 N.W.2d 2, 9 (Minn. 1990) (holding that state constitutional language
stating that “nor shall any control of or interference with the rights of conscience be
permitted . . . grants far more protection of religious freedom” than the federal free
exercise clause); First Covenant Church of Seattle v. City of Seattle, 840 P.2d 174,
186-87 (Wash. 1992) (en banc) (holding that the state must justify even a “facially
neutral, even-handedly enforced” statute with a compelling state interest if the statute
indirectly burdens the exercise of religion based on a state constitutional provision
providing that “[a]bsolute freedom of conscience in all matters of religious sentiment,
belief[] and worship, shall be guaranteed to every individual, and no one shall be
molested or disturbed in person or property on account of religion” (internal quotation

42
marks and citation omitted)).
{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, 1997-NMSC-006, ¶
21. As stated by our Supreme Court, this approach provides that
[w]here 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, 2011-NMSC-009, ¶ 49, 149 N.M. 435, 250 P.3d 861 (emphasis,
internal quotation marks, and citation omitted).
{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

43
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.
_________________________________
JAMES J. WECHSLER, Judge