Do photographers have a First Amendment right to choose what they photogr...

[DavidEBernstein at aol.com]

I not only didn't "simply declare" that, if you reread what I wrote, I  
didn't make that argument at all, I said there is no compelling interest in  
preventing discrimination against unmarried heterosexuals.  As far  as Elane's 
Photography goes, in the absence of further evidence that the company  
discriminates against gays per se, the discrimination in question is not  "against gays" 
but against "ceremonies that are contray to personal  morality."  If a 
Christian photographer refused to take photographs at a  ceremony in which a 
Chrisitian was converting to Hindusim, I would hardly call  there discrimination 
"against Hindus", even if the photographer would take photos when a Hindu was 
converting to Christianity.
 
 
In a message dated 4/10/2008 1:38:37 PM Eastern Daylight Time,  
crossf at mail.utexas.edu writes:


I'm  not sure how you can simply declare there's no compelling government 
interest  in preventing commercial discrimination against gays.  Not that it is  
intrinsic, but it doesn't seem the sort of thing you can just proclaim from  
"on high."  Tis true that she didn't reject all commerce with gays, but  
rejecting some may surely be objectionable.  A photographer who will deal  with 
blacks but who refuses to take pictures of blacks and whites together  might be 
considered objectionable.  Or a restaurant that refused certain  services, 
though not all services, based on race.  E.g., we'll serve to  Jews but only one 
quarter of the menu.


At 12:10 PM 4/10/2008,  DavidEBernstein at aol.com wrote:

With regard to unmarried heterosexuals as in Swanner, not only is  there no 
compelling government interest in preventing commercial  discrimination, the 
government actually arguably has an interest in  encouraging such discrimination 
in order to promote the social benefits of  marriage, as it does in many 
ways.  Meanwhile, "Elane" didn't refuse  commerce with gays, she refused to 
photograph a gay commitment  ceremony.  A blanket refusal to accept gay clients 
regardless of  subject matter would raise somewhat distinct issues.

In a  message dated 4/10/2008 1:06:17 PM Eastern Daylight Time,  
crossf at mail.utexas.edu writes:


I would think no individual case would be compelling, but the question  is 
whether government has a compelling interest in prohibiting commercial  
discrimination against gays (or blacks, jews, etc.) 


At 11:15 AM 4/10/2008, DavidEBernstein at aol.com wrote:


Yes, they should, normatively.  Is this a First Amendment  right? Not under 
current freedom of expression doctrine, nor under Smith  for religious freedom, 
but it should be protected under state RFRAs, as  the state has no compelling 
interest in requiring any given caterer,  florist, or anyone else to work at 
any particular wedding (though there  are precedents out there holding that 
things that I wouldn't even say  are minimally important government interests 
are constitutionally  compelling for state free exercise purposes, as in the 
Swanner case in  Alaska in which the state supreme court held that forcing a 
religious  landlord to rent to an unmarried heterosexual couple was a "compelling  
state  interest.")





 



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