What about a singer?

[Mark Tushnet]

To harp on (so to speak) another of my methodological concerns, what are
we to think (or do) if someone answers Yes to the last question posed
here?

 

Mark Tushnet

William Nelson Cromwell Professor of Law

223 Areeda Hall

Harvard Law School

Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, December 17, 2009 2:29 PM
To: 'CONLAWPROFS professors'
Subject: What about a singer?

 

               I wanted to probe the extent to which supporters of the
New Mexico court's decision in Elane Photography are relying on the
perceived low expressive content of wedding photography, and to what
extent their rationale (like the court's) is broader.  Say that a
wedding singer refused to sing at an interfaith wedding; his view was
that the wedding was a profanation of the religious tradition, and that
the religious songs he will be asked to sing would likewise be profaned
by his performance of them at this wedding.  (That might not be a view
that most of us would share, but assume that it's sincere.)  Or say that
he refused to sing songs associated with the religion of the wedding
participants, and say that a state court concluded that as a matter of
state law this constituted religious discrimination (just as the New
Mexico court concluded that as a matter of New Mexico law the refusal to
photograph a same-sex commitment ceremony, focused on the character of
the ceremony and not the sexual orientation of the participants as such,
constituted sexual orientation discrimination).

 

               Would the wedding singer have a good First Amendment
objection to being compelled by antidiscrimination law to sing at the
wedding?  Or would we say that since no-one would really see the wedding
singer as personally endorsing the songs that he sings, he may be
compelled to sing the words, presumably imbuing them with feeling and an
appearance of sincerity, in keeping with his felt obligations of
professionalism?

 

               Eugene

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