Elane Photography v. Willock and the UK

[Paul Diamond]

Dear All,

To follow on from Eugene's requrest, I would would like to mention the recent decision from the UK Court of Appeal.  If the link doesn't open, the case of Ladele v London Borough of Islington should be available on the British and Irish Legal Information website:

http://www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html

I find this Judgment very concerning and is indicative of where this agenda is going.  

I am in the Court of Appeal on a similar issue and need to overcome this decision- any ideas!!!

A few tips on translation:

  a.. The UK has no Constitution or Bill of Rights; so we have a very under-developed human rights jurisprudence, over reliance on the European Convention and Parliament sovereignty; 
  b.. Thus, we tend to approach religious liberty (not as a right to exercise, and thereafter a compelling interest to limit), but rather under our discrimination legislation.  So if every religious adherent is treated equally badly, that can satisfy strict scrutiny; 
  c.. Discrimination legislation follows the usual procedures of i) Direct Discrimination and ii) Indirect discrimination. 
  d.. On Direct Discrimination, the religious adherent is compared to a non religious person who objects to same sex union; ie religion is compare and similar to a bigot; 
  e.. On Indirect discrimination, the policy of dismissal of religious adherents is justified as i) a religious belief can be discriminatory , ii) provision of a statutory service and iii) Parliament has outlawed it. 
  f.. This case makes a number of silly errors such as the confusion between religious beliefs and manifestation.

Sorry to bore you all and have a great Christmas, or holidays.

Paul

Paul Diamond
Chambers of Paul Diamond
PO Box 1041 Barton
Cambridge CB23 7WY United Kingdom
01223 264544
www.pauldiamond.com


  ----- Original Message ----- 
  From: Volokh, Eugene 
  To: 'Law & Religion issues for Law Academics' 
  Sent: Wednesday, December 16, 2009 9:54 PM
  Subject: Elane Photography v. Willock


  A New Mexico trial court order just upheld the New Mexico Human Relations' conclusion that a wedding photographer violated state antidiscrimination law when she refused to photograph a same-sex wedding.  As to the state RFRA, the court held that (1) the husband-and-wife LLC through which Elaine Huguenin (the wife) did her photography didn't qualify as a "person," (2) the NMRFRA doesn't apply to civil lawsuits between private parties, and (3) applying the law to Elane Photography in any event passed strict scrutiny.

   

  Any thoughts on this?  In particular, does it make sense for the state to conclude that even though New Mexico law discriminates against same-sex weddings in a vast range of ways - simply by not recognizing same-sex marriages - banning such discrimination by wedding photographers is necessary to serve a compelling interest in eradicating sexual orientation discrimination?



  Eugene



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