Alan: What do you thank about freelance writers? Say that
someone generally takes freelance gigs to write a wide range of press releases,
technical manuals, and pretty much anything else that comes in the door. Along
comes the Church of Scientology, asking the person to write a press release for
their latest event. Say that the press release is not “commercial speech,” but
fully protected religious advocacy.
It’s just that this writer doesn’t want to create this sort of
advocacy, for a religion that he views as evil and corrupt. He says no, and
the Scientologists sue him for religious discrimination. I would think that he
should a First Amendment right not to be compelled to write religious advocacy
that he doesn’t want to write. Am I mistaken on that?
As to some of the other analogies, I don’t think they quite
work. Some involve commercial speech, which is treated differently, compare
Pittsburgh Press. The closest examples involve lawyers and doctors, but those
are treated differently, for complicated reasons having to do with tradition
and with the professionals’ monopoly, to the point that I don’t think they
should be much of a precedent for other speakers. One piece of evidence:
Lawyers have historically been required to defend criminal defendants, for free
and regardless of their preferences – not just by antidiscrimination law, but
by ad hoc court orders. Surely if a government agency just ordered a freelance
writer to write a press release for some worthy organization, on the grounds
that they really needed the services, we’d agree that this is unconstitutional
compelled speech compulsion, right? If so, then I think this shows that
(rightly or wrongly) lawyer-client speech and doctor-client speech is broadly
subject to much more compulsion than freelance writing, photography, etc.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Sunday, February 15, 2015 2:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Wedding photographers as creators of art
I think Steve's focus on the difficulty of drawing distinctions in this area
is helpful, but it also demonstrates the potential range of autonomy and/or
expressive exemptions from civil rights laws.
Let's put prostitution aside for the moment since it involves a form of
intimacy that is so personal that commercializing it commonly results in
criminal sanctions. I think ministers practicing their religion are also a
unique constitutional category.
But it is a very large step to move from these two special circumstances to the
general idea that jobs and services with a personal autonomy or creative
expressive dimension should be exempt from civil rights laws.
lots of jobs and services can be characterized as intimate or personal.
Legitimate massage therapists and physical therapists, barbers and hair
stylists, doctors and nurses, psychotherapists and child care providers, home
care providers for the elderly or similar care provided in assisted living
facilities -- just to name a few.
The list of jobs and services with an expressive and creative dimension is much
larger. Defined broadly, speech covers persuasive and informative expression as
well as artistic expression. But what is the limit here? Are sales and
advertising services exempt from anti-discrimination laws? (And if you don't
think sales involves both personal expression and creativity you never saw my
Uncle George talk to neighborhood customers in the family hardware and
housewares store in the Bronx.) Laws is an expressive business. A lot of the
practice of medicine involves talking and listening often about very personal
problems -- and being an effective family physician involves creative problem
solving and the effective communication of information. Architecture is
expressive and creative. So is teaching. (Most of us recognize that we are
performers in the classroom to some extent.) Again, the list could go on.
Generally speaking, in a liberal society, we allow discrimination in employment
and the provision of services with regard to all of these activities almost
without limit. We pass anti-discrimination laws because we think that for these
certain limited categories -- such as race, religion, gender, sexual
orientation -- the conventional liberal system doesn't work right and produces
unacceptable results. That is obviously a constraint on autonomy and creative
choice. But it is a constraint we accept if we are serious about
anti-discrimination principles.
So the question for me isn't whether these is a personal autonomy or creative
expressive dimension to services like those provided by Elane Photography. It
is, putting religion aside, whether there is some good reason to treat
creative, expressive, personal wedding photographers differently than all of
the jobs and services I described above and many more. Or are we willing to
accept this large an exemption from civil rights laws (again leaving religion
aside) on generic personal autonomy and expressive and creative freedom grounds.
Alan
________________________________
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>>
on behalf of Steven Jamar <stevenja...@gmail.com<mailto:stevenja...@gmail.com>>
Sent: Sunday, February 15, 2015 4:41 AM
To: Law Religion & Law List
Subject: Re: Wedding photographers as creators of art
Not all bases of discrimination are the same and not all businesses are the
same. Discrimination based on the target’s immutable characteristics (race,
national origin, gender, sexual orientation, etc.) is not the same as one based
on a difference in beliefs — political, religious, moral.
A business that sells ordinary goods is not the same as a business that sells
personal services. And within the services industry, an artistic endeavor such
as photography is not the same as a car mechanic.
When, if ever should these real differences matter?
There will inevitably be line drawing with lines that some lines drawn that
some find indefensible and that are distinguishing between closely similar and
difficult cases. That is true in every area of law I have come across.
Sometimes the lines get drawn on a very inarticulate “all the circumstances”
basis with essentially no guiding principle. That is, I submit, the nature of
society and the law’s attempts to regulate it.
Take a wedding cake. There is a difference between a phoned-in order to a
bakery for a “generic” three layer wedding cake and one special ordered by a
same-sex couple wanting some special features because it is for a same-sex
wedding. Does it matter whether the bakery is a commercial bakery or that the
baker is just someone doing it on the side as a sometimes-business? I think
all of those sorts of things matter in deciding whether to allow the
discrimination.
I think the wedding cake for the same sex marriage is easy — while I
acknowledge there is some art to making a cake, for the most part it is a
matter of selecting the cake from pictures — “I want one like that”.
But for me the photographer is different. Maybe because I take pictures — and
every now and again try to take artful ones. And they are psychologically
different than party snapshots, though even those take more creativity than the
standard facebook fare if one wants a decent picture, i.e., one that is well
composed, exposed, etc.
So I would draw two lines — one based on creativity and one based on intimacy
(Eugene’s prostitute) and allow discirmination more broadly in those settings.
But I would not allow the photography factories (Sears, school and sport team
photographers, etc.) the same right to refuse — they are more like the mechanic
or bakery. Nor would I allow a pharmacist to refuse to dispense legal
contraceptive drugs or devices. Nor would I allow an insurer or company to
refuse to cover such devices and drugs. But a surgeon or nurse performing an
abortion — I would give them the religious exception.
I think RFRAs that allow such broad based discrimination based on any sincere
belief go to far. But for me the line-drawing is neither obvious nor easy —
they are uncomfortable, close questions.s
Steve
--
Prof. Steven D. Jamar
Howard University School of Law
vox: 202-806-8017
fax: 202-806-8567
http://sdjlaw.org
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