Lee v. Weisman and compulsion to photograph a religious ceremony

[Volokh, Eugene]

	I appreciate Jean's question, but all I can say is that
according to the New Mexico Human Rights Commission's view of state law
-- which is in fact written quite broadly, to generally include
"service[s]" open to the public -- the law does cover such a
photographer.  If the New Mexico courts affirmed this, and the U.S.
Supreme Court were asked to consider the constitutional questions, it
would have to take that state law interpretation as given.  And the
interpretation is indeed consistent with the broad view taken by some
though not all state courts of their state statutes, which have
sometimes been read to cover, among other things, private clubs,
parades, and the Boy Scouts.  (In the latter two cases, the courts have
held that this application of public accommodation law violates the
First Amendment, but the state law judgment remained that state law
covered those organizations.)  For better or worse (I think for worse),
public accommodations discrimination law has in many places gone far
beyond its original core, and (for instance) beyond the limited
definition of public accommodation provided for in the federal 1964
Civil Rights Act.

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Jean Dudley
> Sent: Tuesday, April 15, 2008 7:18 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Lee v. Weisman and compulsion to photograph a 
> religious ceremony
> 
> All good questions, certainly;  However, my question is how a 
> wedding photographer is considered "public accomodation".  
> Food, housing, retail, banking, dispensing pharmaceuticals, 
> all of these are undoubtedly "public accomodation".  They are 
> necessary to participate in society, and for basic human 
> needs.  Why is photographing a commitment ceremony or wedding 
> considered necessary?
> 
> Disclosure:  I am a lesbian and a landscape photographer.
> Jean.
> 
> 
> On Apr 15, 2008, at Tue, Apr 15,  6:55 AM, Volokh, Eugene wrote:
> 
> > 	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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