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SCOTUS Declines to Take on New Mexico Anti-Gay Case But Discrimination Is Still Alive

The decision advances a widespread public misconception that LGBT people are protected from discrimination by US law.

by Mary Emily O'Hara
Apr 8 2014, 12:50pm

Photo via Flickr user Jasonpier

The US Supreme Court declined Monday to take on a New Mexico photographer’s appeal of a ruling that upheld discrimination charges against her for refusing a job snapping pictures of a lesbian commitment ceremony. Though the decision may seem like a victory for combating gay prejudice, it effectively reinforces a widespread public misconception that LGBT people are protected from discrimination by US law.

The Supreme Court’s refusal to hear Elane Photography LLC V Willock will result in the upholding of an earlier New Mexico Supreme Court decision that ruled against photographer Elaine Huguenin, by determining that the state’s anti-discrimination laws prevented business owners from refusing to serve a paying customer based on sexual orientation or gender identity.

In 2006, Hugenin declined to photograph the commitment ceremony of Vanessa Willock and Misti Collinsworth, asserting that she could not "in good conscience" do so, since her work was intertwined with her beliefs.

The couple later filed a complaint to New Mexico’s Human Rights Commission, and the commission then fined Huguenin and her husband Jonathan (who co-owns the photography business) $6,637.94. In a lawsuit, the Huguenins sought to have the commission determination voided, but the state's Supreme Court agreed with the commission's ruling.

After the U.S. Supreme Court declined the case, VICE News attempted to contact Huguenin’s lawyers at the Alliance Defending Freedom, a Christian advocacy and litigation firm, but did not receive a response.

But on the Alliance Defending Freedom’s website, Huguenin’s lawyers said “the government punishment of Americans for declining to create or promote messages with which they disagree is alive” in other cases across the nation.

“Only unjust laws separate what people say from what they believe,” said Alliance Defending Freedom Senior Counsel Jordan Lorence in a statement. “The First Amendment protects our freedom to speak or not speak on any issue without fear of punishment. We had hoped the U.S. Supreme Court would use this case to affirm this basic constitutional principle…”

LGBT Community Not Federally Protected From Discrimination

There is not a single federal law preventing discrimination against LGBT people.

New Mexico passed its law banning LGBT discrimination in “public accommodations” in 2004, and is now one of 16 states (plus the District of Columbia) to do so.

In those 16 states, both private businesses and government entities are held accountable and sanctioned for refusing service to LGBT people.

The St. Patrick’s Day Parade LGBT ban is distinctly American. Read more here.

Five more states prohibit discrimination on the basis of sexual orientation only, but those protections do not cover transgender people.

That means there are 29 US states where it is perfectly legal to refuse service to a lesbian, gay, bisexual, or transgender person. And in most of those states, employers are also free to fire, or choose not to hire, a person just because they are LGBT.

LGBT Discrimination Is Not Illegal

Due to recent challenges to businesses that tried to refuse service to same-sex couples, the public is sometimes under the mistaken impression that such discrimination is illegal throughout the US.

“What you’re seeing is cases where there is a law and there’s a way for same-sex couples to stand up and challenge discrimination,” said Jennifer Pizer, director of Lambda Legal’s Law and Policy project.

However the laws are not that clear cut.

“In the majority of US States, the legal protections are grossly inadequate and same-sex couples are turned away routinely because they don’t have the tools to address that,” Pizer said, “In many states, same-sex couples would not even attempt to order a wedding cake or hold hands in public, because of an acute awareness of the possibility of being asked to leave or even being assaulted when they’re on the street.”

In February, Arizona Gov. Jan Brewer famously vetoed SB 1062, the bill that many believe would have allowed business to refuse service to LGBT people by asserting exert religious freedom.

What was often left out of that controversy was the fact that, because Arizona lacks anti-discrimination laws, many Arizona business owners already have the legal right to reject gays.

Pizer was hesitant to say that LGBT people are completely without legal protections in states without LGBT non-discrimination public accommodation laws, and noted that within those states there are often city and county non-discrimination laws that do cover sexual orientation and/or gender identity.

Still, Arizona’s “religious freedom” bill now seems pretty pointless.

“Calls from conservative religious groups that are claiming to have this urgent need for legal protection — those claims ring hollow, because we see that members of the LGBT community experience discrimination everyday in a broad variety of ways not perceivable to the general public,” said Pizer. “It was alarming to see the Arizona legislature passing a law that seems to bless religiously motivated discrimination.”

Sarah Warbelow, legal director at Human Rights Campaign, told VICE News that it often surprises people to learn that discrimination on the basis of gender is also not covered by federal law.

“There are still huge swaths of the country where a woman can be barred from a public business,” Warbelow said.

HRC has urged President Obama to sign an executive order to push through the Employment Non-Discrimination Act (ENDA), which Warbelow said, “would add sexual orientation and gender identity to employment laws but not to housing and public accommodation.”

So as of today, there’s no federal law that would keep a business from firing someone because she or he is gay or transgender in the majority of US States, to say nothing of housing and refusal of business transactions.

“When we don’t have those laws, the customer is very vulnerable. People do get turned away, and there’s very little they can do about it. As a practical matter, in more than half of the states, LGBT people have very little legal protection,” said Pizer.

“The idea that a store or a business might turn a person away is something the public hasn’t grappled with in a couple of generations,” Pizer said. “It’s as if a woman were to go into Home Depot and be told, ‘Oh, we don’t sell these tools to girls.’ That’s what we’re talking about.”

Follow Mary Emily O’Hara on Twitter: @maryemilyohara

Photo via Flickr user Jasonpier