FW from Chip Lupu: Elane Photography

[Steven Jamar]

What if it were not a wedding ceremony (legally recognized or not)?  But a
Valentine's Day party or a New Year's Eve Party that the gay couple wanted
 memorialized?  Or the couple's child's birthday party or bar mitzva?

Could the photographer then refuse?  On what grounds?

This is pure status discrimination.  Is that allowed for freedom of
conscience reasons?  Or freedom from compelled speech (implied endorsement
of the subject of the photographs) grounds?  Is this any different from a
gay wedding ceremony?

Is pay to not play an appropriate accommodation of the claimed 1st amend
rights?

Steve


On Thu, Dec 17, 2009 at 3:22 PM, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:

>
>
> -----Original Message-----
> From: Ira (Chip) Lupu [mailto:iclupu at law.gwu.edu]
> Sent: Thursday, December 17, 2009 12:19 PM
> To: Volokh, Eugene
> Subject: Elane Photography
>
> Eugene:
>
> I'm at a computer from which I cannot post to the list.  But here's one
> question about your compelling interest argument re: New Mexico RFRA  --
> What difference does it make that  NM does not legally recognize same-sex
> marriage?  The claim here is about the refusal of a commercial photographer
> to perform her offered professional service at a ceremony.  It happens to be
> a wedding ceremony, but its legal significance (or absence of legal
> significance) has absolutely nothing to do with the claim.  The state
> protects gays and lesbians against discrimination in private markets for
> goods and services, and this claim arises in one of those markets.
>
> Chip
>
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>
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>



-- 
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice
(IIPSJ) Inc.
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