The Colorado Court of Appeals actually mentions a case involving a wedding photographer decided by the New Mexico Supreme Court, Elane Photography LLC v. Willock.
NM SCOTUS decided even more strongly, arguing that the New Mexico Human Rights Act, "prohibits public accommodations from making any distinction in the services they offer to customers on the basis of protected classifications. The NMHRA does not permit businesses to offer a limited menu of goods or services to customers on the basis of a status that fits within one of the protected categories." (I'm Quoting Lexis, not the ruling)
I'm not sure I agree with this ruling, but it's unclear whether it would have been decided the same way if the Court had interpreted Elane Photography's services as an artistic work rather than a utilitarian service. NM SCOTUS had a few arguments, but basically it decided that anti-discriminatino laws aren't compelled speech because Elane Photography could just decide not to be a company performing a service:
>However, unlike the laws at issue in Wooley and Barnette, the NMHRA does not require Elane Photography to recite or display any message. It does not even require Elane Photography to take photographs. The NMHRA only mandates that if Elane Photography operates a business as a public accommodation, it cannot discriminate against potential clients based on their sexual orientation.
>The Barnette Court noted that the dissenting students’ choice not to salute the flag “[did] not bring them into collision with rights asserted by any other individual.” 319 U.S. at 630. That is not the case here, where Elane Photography’s asserted right not to serve same-sex couples directly conflicts with Willock’s right under Section 28-1-7(F) of the NMHRA to obtain goods and services from a public accommodation without discrimination on the basis of her sexual orientation.
>The same situation is true in the instant case. Like the law in Rumsfeld, the NMHRA
does not require any affirmation of belief by regulated public accommodations; instead, it requires businesses that offer services to the public at large to provide those services without regard for race, sex, sexual orientation, or other protected classifications. Section 28-1-7(F). The fact that these services may involve speech or other expressive services does not render the NMHRA unconstitutional. See Rumsfeld, 547 U.S. at 62 (“The compelled speech to which the law schools point is plainly incidental to the [law’s] regulation of conduct, and it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out. Dale also was decided on freedom of association grounds. Id. at 644. Elane Photography has not argued that its right of expressive association was violated. by means of language, either spoken, written, or printed.” (internal quotation marks and citation omitted)). Elane Photography is compelled to take photographs of same-sex weddings only to the extent that it would provide the same services to a heterosexual couple. See id. at 62 (speech assisting military recruiters was “only ‘compelled’ if, and to the extent, the school provide[d] such speech for other recruiters”).
NM SCOTUS decided even more strongly, arguing that the New Mexico Human Rights Act, "prohibits public accommodations from making any distinction in the services they offer to customers on the basis of protected classifications. The NMHRA does not permit businesses to offer a limited menu of goods or services to customers on the basis of a status that fits within one of the protected categories." (I'm Quoting Lexis, not the ruling)
https://www.lexisnexis.com/community/casebrief/p/casebrief-e... https://law.justia.com/cases/new-mexico/supreme-court/2013/3...
I'm not sure I agree with this ruling, but it's unclear whether it would have been decided the same way if the Court had interpreted Elane Photography's services as an artistic work rather than a utilitarian service. NM SCOTUS had a few arguments, but basically it decided that anti-discriminatino laws aren't compelled speech because Elane Photography could just decide not to be a company performing a service:
>However, unlike the laws at issue in Wooley and Barnette, the NMHRA does not require Elane Photography to recite or display any message. It does not even require Elane Photography to take photographs. The NMHRA only mandates that if Elane Photography operates a business as a public accommodation, it cannot discriminate against potential clients based on their sexual orientation.
>The Barnette Court noted that the dissenting students’ choice not to salute the flag “[did] not bring them into collision with rights asserted by any other individual.” 319 U.S. at 630. That is not the case here, where Elane Photography’s asserted right not to serve same-sex couples directly conflicts with Willock’s right under Section 28-1-7(F) of the NMHRA to obtain goods and services from a public accommodation without discrimination on the basis of her sexual orientation.
>The same situation is true in the instant case. Like the law in Rumsfeld, the NMHRA does not require any affirmation of belief by regulated public accommodations; instead, it requires businesses that offer services to the public at large to provide those services without regard for race, sex, sexual orientation, or other protected classifications. Section 28-1-7(F). The fact that these services may involve speech or other expressive services does not render the NMHRA unconstitutional. See Rumsfeld, 547 U.S. at 62 (“The compelled speech to which the law schools point is plainly incidental to the [law’s] regulation of conduct, and it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out. Dale also was decided on freedom of association grounds. Id. at 644. Elane Photography has not argued that its right of expressive association was violated. by means of language, either spoken, written, or printed.” (internal quotation marks and citation omitted)). Elane Photography is compelled to take photographs of same-sex weddings only to the extent that it would provide the same services to a heterosexual couple. See id. at 62 (speech assisting military recruiters was “only ‘compelled’ if, and to the extent, the school provide[d] such speech for other recruiters”).