Vanderbilt Law Review


James M. Gottry

First Page



Imagine a young woman, Elaine, who is a gifted photographer. She launches a small photography business with her husband, and soon she is in demand throughout the state. Her specialty is weddings. One day Elaine receives a request to photograph a same-sex commitment ceremony. Politely, she declines, explaining that she only photographs traditional weddings. Several months later, she is contacted by the state's Human Rights Commission. Elaine learns that a complaint has been filed against her, and she is being charged with discrimination on the basis of sexual orientation.

Imagine a young man, Michael, who is a gifted filmmaker. While his true gift lies in the creation of short films and documentaries, Michael funds his passion by shooting various advertisements and other more "commercial" projects. As the next presidential election draws near, Michael is approached and asked to film an ad for the challenger, a conservative, gun-toting business owner of a multinational corporation who favors an increase in oil exploration and owns a fleet of gas-guzzling SUVs. While flattered, Michael has long supported the liberal incumbent, and has already produced several ads for his campaign. Therefore, he politely declines. Within weeks, a complaint is filed against Michael for discriminating on the basis of political ideology.

One of these scenarios is all too real, and Elaine's business, Elane Photography, was forced to pay fees in excess of $6,000. The second could quickly become a reality, as the legal framework already exists to sustain it. While state, and later federal, public accommodation laws proscribing discrimination have played a key role in "protecting the civil rights of historically disadvantaged groups," defenders of liberty should agree that decisions which force a Christian photographer to provide services for a same-sex commitment ceremony or force a liberal filmmaker to shoot political advertisements for conservative candidates are untenable. Indeed, these situations are readily distinguishable from a hotel owner refusing to provide lodging for blacks in violation of the Civil Rights Act of 1964.

The reason decisions like the one in Willock v. Elane Photography feel different is simple: they are different. Elaine's situation involved more than opening her business to the public. Rather, Elaine-by being told that she must use the expressive art of photography to communicate a particular message about same-sex commitment ceremonies-was compelled to express a viewpoint she disagreed with, in violation of her First Amendment free speech rights. Similarly, forcing Michael to use the medium of videography to communicate a message about a particular candidate would be a violation of his First Amendment rights. Despite the distinctness of cases like Elane Photography, the state district court hearing Elaine's case concluded that the law did not infringe on Elaine's First Amendment rights because the law simply prohibited the "act of discriminati[on]." However, the Supreme Court has explicitly held- in the very case cited by the district court for its rationale-that attempting to end discrimination does not supply a sufficient justification for applying public accommodation laws to expressive conduct. To find otherwise could produce results that run contrary to national ideals of justice and autonomy by forcing an individual to engage in expression that violates his or her beliefs. With these ideals at stake, greater clarity is needed in the area of public accommodation laws. The expansion of such laws has resulted in an increase in cases like Elane Photography, and courts must be able to evaluate properly the interests involved when public accommodation laws clash with free speech rights.

This Note examines the limits of public accommodation anti- discrimination laws as they pertain to private businesses. Part I explores the origins and development of public accommodation laws, paying close attention to their original purpose as compared to their contemporary implementation. It also reviews the development of First Amendment jurisprudence and the protection the Supreme Court has provided for speech. Using Elane Photography as an example, Part II demonstrates the failure of some courts to properly analyze cases involving expressive conduct by a private business that falls within the bounds of First Amendment protection. Part III concludes that public accommodation laws violate the First Amendment when they compel expression by private businesses, such as Elane Photography. To remedy this constitutional violation, Part III first proposes that legislatures more carefully delineate the reach of-and groups covered by-public accommodation laws. Second, it urges courts to apply more consistently the Supreme Court's standard for expressive activity and look to Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston for guidance in balancing governmental interests against First Amendment protections.