FW from Chip Lupu: Elane Photography

[Volokh, Eugene]

            If a photographer refused to photograph a bar mitzvah because he disapproved of its religious content, he should be free not to create such expression - and not be forced to pay for the exercise of this First Amendment right.

            If the photographer refused to photograph something simply because of the identity of the commissioning people, and not because of the content of the work that would be created (e.g., a photographer refused to photograph a lesbian's house because the client is a lesbian), then we might have a potentially tougher question; I'm not sure.  But that's not this case, because here Elaine Huguenin stressed that her objection was to the content of the ceremony that she is being compelled to photograph, and not just to the identity of the payer.

            Eugene

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, December 17, 2009 12:35 PM
To: Law & Religion issues for Law Academics
Subject: Re: FW from Chip Lupu: Elane Photography

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<mailto:VOLOKH at law.ucla.edu>> wrote:


-----Original Message-----
From: Ira (Chip) Lupu [mailto:iclupu at law.gwu.edu<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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