A quick and belated response to Chip's message. Quite right. My post did not resolve the problems raised by RFRA and was deliberately framed not to. Indeed, I was not trying to place things into a constitutional category either, whether of free speech or free exercise. Instead, I was asking whether - setting to one side other aspects of this problem - we at least could reach some consensus for an exemption from anti-discrimination laws for those declining to provide a direct service for a ceremony or campaign or message to which they object. If we could draft appropriately narrow language to allow the wedding photographer or the event host or the songwriter or the advertising agency to exercise freedom to choose the matters to which they apply their communicative arts, might we then be able to carve out one small space for protecting freedom without undermining the general aims of anti-discrimination laws? Probably not, but worth the try, I do think.
Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, February 27, 2014 7:40 PM To: Law & Religion issues for Law Academics Subject: Re: bigotry and sincere religious belief Greg Sisk's post re: how to think about the wedding photographer is just the compelled speech argument one more time. In the case of a photographer, a First A claim of compelled speech is plausible, though not entirely persuasive. In the case of a baker, florist, wine vendor, or caterer, the argument that their providing service to a same sex wedding involves compelling them to speak about the moral/religious bona fides of the ceremony is not even plausible. But there is a deeper issue lurking in Greg's post. If the photographer has a good compelled speech claim, it is entirely independent of religion. She can have any reason, or no reason at all, to refuse to speak. She can have religious objections, homophobic reactions, or aesthetic concerns about taking pictures of two brides or two grooms. Her reasons are totally irrelevant. This is the precise lesson of Minersville v. Gobitis (no free exercise exemptions from compulsory Flag Salute at school) and West Va Bd of Ed v. Barnette (no one can be compelled to salute the American flag). And if reasons are irrelevant, because this is a compelled speech problem, then it extends to all weddings -- inter-racial, inter-religious, Italian, Polish, Jewish, etc. The photographer cannot be "conscripted" by civil rights laws into taking and displaying photos against her will. Maybe this is a good result; I have my doubts. But it is NOT a religious exemption, and it does NOT require any parsing of phobic/bigoted/sincerely religious reasons to abstain. So, under Greg's approach, the problem raised by RFRA's, re: separating religious sincerity from phobic bigotry, remains entirely unresolved.
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