Mark: would you defend her position if she refused to photograph an integrated
marriage? Or Hindu wedding? Does she have an absolute right to refuse to
work for people on the bases of race, religion, or gender?
******************
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com
From: "Scarberry, Mark" <mark.scarbe...@pepperdine.edu>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Sunday, February 15, 2015 2:18 AM
Subject: Wedding photographers as creators of art
In response to Paul:
Elaine Huguenin's cert petition says that "artistic expression pervades her
work."
She also says that her work is expressive photojournalism that tells a story.
More later, perhaps, but I couldn't leave your claim unanswered that she didn't
claim to be an artist. She engages in creative artistic expression. She does
not run a photobooth. She is not an auto mechanic. She does not "sell product."
She creates artistic expression that tells a story.
It is profoundly illiberal to require someone to engage in expression contrary
to conscience, and even worse to require them to create a state-mandated
message that tells a story they do not wish to tell.
Mark
Mark S. ScarberryPepperdine University School of Law
Sent from my Verizon Wireless 4G LTE Smartphone
-------- Original message --------From: Paul Finkelman Date:02/14/2015 6:43 PM
(GMT-08:00) To: Law & Religion issues for Law Academics Subject: Re: Can
someone be legally obligated to have sex with people she's unwilling to have
sex with?
Mark:
I think there might be a difference, in terms of commercial activity between
the artistic photographer, who shoots and sells photos and the commercial
photographer who advertises that he does weddings, confirmations, family
portraits etc. One is essentially an artist, who sometimes takes a commission.
I agree with you that an artists can refuse a commission, just like we can
refuse to write a book when a publisher asks us to.
But, if our business is open to all, then it has to be open to all. The person
photographs people is no different than an auto mechanic or a dentist. The
other has an open business that anyone can walk in off the street and use.
Similarly, while we can decline to write a book, if our class is open to all
students, we cannot refuse to let some in on the grounds that we oppose their
beliefs, faith, color, life style etc.
And, if you can discriminate on the basis of gender then you presumably can for
race or religion.
None of the people who have refused to sell their product to gay people are
arguing they are artists. They are business owners who sell to the general
public. Except when they don't like the general public!
And, if you rent out your theater or lecture hall, you do it for all comers if
that is your business.
To take your hypo further, Mark. If you have a photography studio and you are
an animal rights person, can you refuse to photograph the two hunters who come
in to get their pictures taken in their hunting clothes? And if some state
requires a photo for a fishing or hunting license, can that person refuse to
take the picture?
We can spin hypos all day. We are trained to that. The bottom line is this:
do we allow businesses to discriminate on the basis of race, gender, or
religion? If we do, then we might as well repeal the 1964 Civil Rights Act,
and allow private discrimination across the board; no more black people in your
restaurant or gays or Catholics of Jews or Mormons or Evangelicals, or whoever
you don't like.
Is that where you want to go?
******************
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com
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