Chip says:
“(Cf. the doctors who refuse to provide infertility treatments to lesbian
couples; those are real cases, not scare hypotheticals.)”
Well, they’re real cases in the sense that at least one has been litigated. It
remains the case that the religious objector has never won such a case, even
when the treatment was offered by a different doc in the same medical practice.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Sunday, April 05, 2015 10:51 AM
To: Law & Religion issues for Law Academics
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights
Mark and I agree on fewer legal premises than he thinks. Yes, the wedding
photographer creates art. And I'm sure that the best wedding caterers,
planners, florists, and bakers also have artistic elements in their work. So
what? Davey O'Brien created political theater when he burned his draft card;
his actions could be regulated because they threatened legitimate state
interests (in an orderly selective service system), independent of their
communicative content.
I think the concept of hybrid rights is made up hooey.
I don't draw lines based on art vs. non-art. I might draw lines, for free
speech purposes, based on the communicative character of the business covered
by public accommodations law. Regulating the content of newspapers and films
seems much more troubling than regulating the content of food presentations in
restaurants. So I am tempted, but only a little, by Jim Oleske's suggestion on
this list that certain predominantly communicative trades -- photographer,
videographer, free lance writer -- be removed from the coverage of public
accommodations law entirely. I am not at all convinced that the First A
doctrines of compelled speech require this, but I can see how First A
expressive values support this move, if the coverage is narrow.
I strongly disfavor covering these or any other trades with public
accommodations laws while simultaneously granting exemptions to religious
objectors, either explicitly or through a RFRA balancing test. The assurances
that Tom Berg and Doug Laycock give, that the only successful RFRA defenses to
discrimination will be in same sex wedding cases, are politically self-serving,
totally unreliable, and objectionable on their own terms. If weddings get
special treatment, then anniversary parties, children's birthdays, etc. may
follow. (Cf. the doctors who refuse to provide infertility treatments to
lesbian couples; those are real cases, not scare hypotheticals.)
And who among us knows when other religious exemptions will be sought and
gained -- re: Muslims, Jews, Hispanics, immigrants from certain places, etc.?
Today's intense culture war will fade, and tomorrow will bring a new one.
The hardest questions for me, and I don't see a whole lot of discussion on the
list about these, are the exemptions for religiously affiliated non-profits.
Are they all ministries, to be left unregulated? When government funded? When
government licensed? These are not merely speculative questions -- see the
Indiana RFRA fix, and see
http://www.irfalliance.org/hidden-restriction-on-faith-based-organizations-in-vawa-reauthorization/
.
On Thu, Apr 2, 2015 at 2:04 PM, Scarberry, Mark <mark.scarbe...@pepperdine.edu
<mailto:mark.scarbe...@pepperdine.edu> > wrote:
Let's see what Chip and I seem to agree on, and then I'll express my strong
disagreement on one point.
We seem to agree that the wedding photographer creates art. It is hard to see
how visual portrayals of an event can convey a message of beauty and
authenticity and not be called art. Indeed it would seem to be celebratory art,
as I've been saying all along, if it deals with beauty and authenticity.
We seem to agree that the wedding photographer (if she can be required to
photograph the same sex ceremony) cannot (as a colleague put it off list)
sabotage the photography, by intentionally portraying the ceremony as ugly or
false (in the sense that the two persons are insincere or that the ceremony
doesn't have whatever legal effect the law provides). I suppose I'd go further
and say that the photographer has to use the same high-quality equipment that
she normally would use, has to take photos from the normal angles, and has to
fix red-eye problems and similar problems before sending the proofs to the
clients for their selection.
I can't agree that the photographer can be required to create visual works that
portray the ceremony as beautiful (or authentic, if that means posing the
couple so as to bring out their sincere commitment to each other). The state
may be able to require her to photograph the ceremony, but it can't require her
to express the view that the ceremony is beautiful. The state has no business
deciding what is beautiful or requiring people to create expressive works that
carry a message of beauty, any more than it can require people to express the
view that the state is good and the laws just. The state may not prescribe
orthodoxy as to the beautiful, the true, or the good; any other view takes us a
step on the road to tyranny (or, in the extreme, to totalitarianism) which Chip
obviously would not endorse).
With regard to Ollie's Barbecue, we may disagree about the ways in which Ollie
may express his political and social views, but surely he can't intentionally
spoil the food, just as the photographer can't intentionally spoil the photos.
A key difference for other purposes is that Ollie is not in the business of
creating expressive works; the requirement that he sell food of the same
quality to all comers doesn't raise compelled speech issues. He has much less
need to express his political and social views in the restaurant to avoid
becoming the state's mouthpiece, because he isn't being required to say
anything that would appear to be his own speech. (He could be required to post
a sign saying that the state requires all customers to be served, without
respect to race etc., but that would identify the message as coming from the
state.)
Nor is Ollie required to be involved personally in the intimate lives of his
customers, the way a wedding photographer (or wedding planner) ordinarily is
with the couple. That raises separate free exercise issues in the wedding
photography case for a photographer who believes it is wrong (as a matter of
conventional religion or its equivalent per the Seeger case) to facilitate a
same-sex marriage. And perhaps it creates a hybrid rights situation per Smith.
Of course it's also easier for the state to tell whether Ollie burns the food
or includes noxious ingredients than it is for the state to determine whether a
photographer has sufficiently expressed the state's (or the clients') views as
to beauty and truth. That implicates not only practical concerns but also the
degree of vagueness of the law and the degree of discretion given to officials
who would police the photographer's use of her First Amendment rights.
Mark
Mark S. Scarberry
Pepperdine University School of Law
Sent from my iPad
On Apr 1, 2015, at 6:03 PM, "Ira Lupu" <icl...@law.gwu.edu
<mailto:icl...@law.gwu.edu> > wrote:
No, I don't think that's OK. But that's a real compelled speech problem, where
the student must first utter the Pledge.
The wedding vendors do not have to say anything approving about the marriage,
or affirm its validity in the eyes of the state or God. They do have to
provide goods and services; in the photographer's case, the services include
making the wedding look authentic and beautiful, not ugly or false. So the
compelled speech concern seems much weaker to me than in Barnette.
On Wed, Apr 1, 2015 at 8:53 PM, Scarberry, Mark <mark.scarbe...@pepperdine.edu
<mailto:mark.scarbe...@pepperdine.edu> > wrote:
Apart from the other points with which I disagree:
Wow, Chip. You really think it’s OK to make the student recite the Pledge, as
long as the student is permitted at the end to say “I don’t mean it”? Can I be
required to burn a pinch of incense to the emperor as long as I am permitted
afterwards to say that the emperor isn’t really a god?
Mark
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
From: religionlaw-boun...@lists.ucla.edu
<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu
<mailto:religionlaw-boun...@lists.ucla.edu> ] On Behalf Of Ira Lupu
Sent: Wednesday, April 01, 2015 5:32 PM
To: Law & Religion issues for Law Academics
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights
If the compelled speech argument is constitutionally sufficient, permission to
post a disclaiming sign may solve the problem. (It would be like letting a
student say aloud "I don't mean it" after forcing her to recite the Pledge of
Allegiance.)
[snip]
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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________
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