I'd appreciate an explanation of why the house photography case is harder if
the refusal to photograph rests on a religious objection (for example, that
one's religious beliefs require that one not facilitate the economic
flourishing of gays).
Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA 02138
ph: 617-496-4451 (office); 202-374-9571 (mobile)
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 12/17/2009 3:40 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: FW from Chip Lupu: Elane Photography
If a photographer refused to photograph a bar mitzvah because he
disapproved of its religious content, he should be free not to create such
expression - and not be forced to pay for the exercise of this First Amendment
right.
If the photographer refused to photograph something simply because
of the identity of the commissioning people, and not because of the content of
the work that would be created (e.g., a photographer refused to photograph a
lesbian's house because the client is a lesbian), then we might have a
potentially tougher question; I'm not sure. But that's not this case, because
here Elaine Huguenin stressed that her objection was to the content of the
ceremony that she is being compelled to photograph, and not just to the
identity of the payer.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, December 17, 2009 12:35 PM
To: Law & Religion issues for Law Academics
Subject: Re: FW from Chip Lupu: Elane Photography
What if it were not a wedding ceremony (legally recognized or not)? But a
Valentine's Day party or a New Year's Eve Party that the gay couple wanted
memorialized? Or the couple's child's birthday party or bar mitzva?
Could the photographer then refuse? On what grounds?
This is pure status discrimination. Is that allowed for freedom of conscience
reasons? Or freedom from compelled speech (implied endorsement of the subject
of the photographs) grounds? Is this any different from a gay wedding ceremony?
Is pay to not play an appropriate accommodation of the claimed 1st amend rights?
Steve
On Thu, Dec 17, 2009 at 3:22 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
-----Original Message-----
From: Ira (Chip) Lupu [mailto:icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>]
Sent: Thursday, December 17, 2009 12:19 PM
To: Volokh, Eugene
Subject: Elane Photography
Eugene:
I'm at a computer from which I cannot post to the list. But here's one
question about your compelling interest argument re: New Mexico RFRA -- What
difference does it make that NM does not legally recognize same-sex marriage?
The claim here is about the refusal of a commercial photographer to perform her
offered professional service at a ceremony. It happens to be a wedding
ceremony, but its legal significance (or absence of legal significance) has
absolutely nothing to do with the claim. The state protects gays and lesbians
against discrimination in private markets for goods and services, and this
claim arises in one of those markets.
Chip
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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--
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice
(IIPSJ) Inc.
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