Lee v. Weisman and compulsion to photograph a religious ceremony

[Conkle, Daniel O.]

One possible distinction, at least if one accepts Justice Kennedy's rationale in Weisman:  It might be less likely that the photographer, who is attending to perform a special service, would be perceived to be participating in or approving the worship activity in question.  Cf. Weisman:  "There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi's prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation.  What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it."

Dan Conkle
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Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
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-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, April 15, 2008 9:55 AM
To: Law & Religion issues for Law Academics
Subject: Lee v. Weisman and compulsion to photograph a religious ceremony

        Last week, the New Mexico Human Rights Commission held that Elane Photography (a husband-and-wife photography business for which the primary photographer is the wife, Elaine Huguenin) violate New Mexico public accommodation discrimination law by refusing to photograph a same-sex commitment ceremony.  The Commission ordered the Huguenins to pay $6600 in costs and attorney fees.  (For more, see http://volokh.com/posts/chain_1207764182.shtml .)

        People have discussed elsewhere the compelled speech dimension of the case, and in January we discussed on the list the New Mexico RFRA issues.  But let me ask a different question:  I've just learned that the ceremony that Huguenin would have had to photograph was likely a religious ceremony -- it was conducted by a minister, so I take it that it likely had some religious dimension, even if only a modest one -- though the record is silent on whether it would have been performed in a church.  Would imposing such a requirement on someone constitute impermissible coercion to participate in religious activity under Lee?
(I realize that this argument would not apply to a requirement to photograph the secular reception.)

        Of course, having to photograph a religious ceremony doesn't involve having to say a prayer or perform any ritual.  But likewise having to stand silent (even if that was coerced) during a prayer also doesn't involve having to say a prayer or perform any ritual (unless silent standing is seen as a ritual during a prayer can be seen as a ritual, but then why wouldn't silent standing during a religious wedding be seen the same way?).  I tend to think that Scalia was right in his Lee dissent to say that no religious activity was actually coerced there
-- but given the majority's contrary conclusion, how would we resolve the question related to a requirement that one attend and photograph a religious wedding?

        Eugene
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