Lee v. Weisman and compulsion to photograph a religious ceremony

[Brownstein, Alan]

Mike Paulsen wrote a law review article after Lee v. Weisman came down arguing that there was an Establishment Clause violation in the case -- not because the plaintiff was coerced into participating in a religious activity but  because the Establishment Clause prohibits coercing someone to attend a religious activity or service.
 
Under that understanding of the Establishment Clause, the photographer might have a stronger case.
 
Alan Brownstein

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Tue 4/15/2008 6:55 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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