What about a singer?

[Ilya Somin]

I should have mentioned this earlier. But I wanted to briefly challenge the claim that some have made that a wedding photographer is like a "common carrier." I think he is not.

At common law, a common carrier is a business that has a legal obligation to serve all comers, so long as they are willing to pay the asking price. Standard examples were railroads, certain shippers, and the like. Wedding photographers and other professional service-providers have no such legal obligations. They can refuse to provide services for all sorts of arbitrary reasons (even under the New Mexico law, which would still allow the photographer to refuse service because, e.g., he didn't like the groom's looks). 

Usually, common carriers had that status because they were believed to have some sort of monopoly over quasi-monopoly over an important public service (e.g. - a railroad may be the only or by far the best way to travel from Point A to Point B). Some common carriers also had special government subsidies or charters. Neither rationale applies to professional service providers such as wedding photographers.

I don't think that this is necessarily crucial for a First Amendment analysis. In my view, common carrier status, even if present, does not diminish constitutional free speech rights. However, I raise this point only because some list participants do seem to believe that common carrier status makes a difference. Be that as it may, wedding photographers pretty clearly are not common carriers. 

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339

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               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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