What about a singer?

[Eric Segall]

I apologize if this question has already been asked but Eugene can New Mexico require the wedding photographer to shoot a wedding between two African-Americans or two Jews if the photographer does not want to do so. If the answer to that question is yes, well then, that is probably the answer to this question, unless there is a federal right to not associate with gays but not a federal right to not associate with blacks or jews (or for that matter two secularists who want no religious message at their ceremony and that violates the religious tenets of the photographer). It  might be coherent to distinguish these groups as a matter of federal constitutional law (Scalia might) but is that what you (Eugene) would do?

Also for what it is worth, and I think I understand the prior doctrine, something about this case feels like the answer is NOT found in determining whether the photographer is being forced to express himself in ways he doesn't  want to. I think the case involves some other kind of liberty, but I must admit I am not sure what it is.

Eric          

>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 12/17/2009 2:43 PM >>>
I take it then each of us would see if there's a helpful and persuasive explanation for that "Yes," or if any attempt at explanation seems inconsistent with one's understanding of what the constitutional ban on speech compulsion would mean.

            Eugene


From: Mark Tushnet [mailto:mtushnet at law.harvard.edu] 
Sent: Thursday, December 17, 2009 11:42 AM
To: Volokh, Eugene; CONLAWPROFS professors
Subject: RE: What about a singer?

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