Sorry, I was responding to Steve Jamar's compelled speech question, and forgot to independently respond to his religious freedom question. If someone refuses to photograph a house owned by a lesbian, because he has a sincere religious objection to doing anything that economically helps lesbians -- not an objection I've ever heard anyone make, but I'm willing to hypothesize it here -- then indeed under a state RFRA regime the government would have to show that requiring such photographing notwithstanding a religious objection is the least restrictive means of serving a compelling government interest.
That question is famously mushy, of course, because it turns on whether the government interest is just the interest in preventing undue economic burdens on gays and lesbians (which likely isn't implicated on the facts, since this objection is likely so idiosyncratic) or whether the government interest is a dignitary interest in preventing every instance of discrimination against gays and lesbians. Whether that latter interest is compelling is hard to figure out in the abstract. But if the claimant's objection is to facilitating not just economic transactions of lesbians but same-sex marriages, and the state asserting the supposedly compelling interest itself discriminates against same-sex marriages (and doesn't even recognize civil unions), then it's hard to see how the state's supposed dignitary interest is so compelling. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Mark Tushnet Sent: Thursday, December 17, 2009 2:57 PM To: Law & Religion issues for Law Academics; Law & Religion issues for Law Academics Subject: RE: FW from Chip Lupu: Elane Photography 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 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
