Wednesday, March 12, 2014

The Sincerity Problem in Expressive Association Cases--Or Why the SCOTUS Should Deny Cert in Elane Photography

By Michael Dorf

My latest Verdict column discusses recent controversies regarding claims for exceptions from general laws, comparing and contrasting claims for exceptions grounded in four freedoms that receive protection in the First Amendment (and other sources of law): religion; speech; press; and association. Here I want to discuss a point of contact that I do not address in the column--what I'll call the sincerity problem.

In legal regimes that entitle religiously-scrupled persons to exceptions from general laws--like the one created by the federal Religious Freedom Restoration Act (RFRA) and similar state constitutional or statutory provisions--there arises a threshold question: Does the claimant have a sincere religious belief? That matters because the entitlement to an exception turns on the religious character of an obligation. If Jim can't work at his government job on Sundays because he goes to church on Sundays, that will trigger protection under a RFRA-style regime, but if Joe can't work at the same job on Sundays because that is the day when he watches sports on television, Joe receives no such protection.

But what if Joe says that his religion requires him to watch sports on tv on Sundays?  Courts will not ask whether such a religious belief--here, the religious belief that God has commanded people (or perhaps has commanded only Joe) to watch sports on tv on Sundays--is true.  Secular courts do not pass judgment on the question of whether a religious belief is true or false.  Nonetheless, the self-serving nature of the belief, coupled with the fact that it is idiosyncratic, will likely lead a court to conclude that Joe does not in fact sincerely believe that God has commanded him to watch tv sports on Sundays.  In theory one can imagine people concocting self-serving religious beliefs and then trying to persuade themsevles to hold such beliefs, but in fact the few efforts along these lines routinely fail, and so almost no one bothers.  (My favorite case is United States v. Kuch, in which the district court rejected as insincere the claimed religious belief that the defendant was obligated to smoke pot. I discussed it at some length here, drawing connections to Festivus.)

Now let's see how these principles apply to expressive association.  As a general matter, federal constitutional free speech doctrine parallels federal constitutional free exercise doctrine: That is, laws that do not target speech, but have the effect of burdening speech in particular cases, do not produce exceptions for speakers.  The leading case here is Arcara v. Cloud Books.  Moreover, there is no EFRA (Expressive Freedom Restoration Act) that requires that general laws be subject to strict scrutiny when they incidentally infringe speech. Thus, it is something of an unexplained mystery why the Supreme Court sometimes treats general anti-discrimination laws as subject to strict scrutiny when they happen to be applied to expressive association--as in Hurley v. Irish-American Gay, Lesbian and Bisexual Group and Boy Scouts of America v. Dale.  Perhaps the Justices think that anti-discrimination laws are never neutral because they always target association, but that's not a sufficient explanation, because the Constitution doesn't protect a general right of association: it protects a right to (and a right not to) expressive association and (not relevant here) a right to intimate association.

In any event, despite not being well justified, the Court's case law sometimes does subject general anti-discrimination law to scrutiny when it bumps up against expressive association. Exactly when that occurs is uncertain.  In Elane Photography v. Willock, the New Mexico Supreme Court read the circumstances in which expressive association exceptions will be granted to anti-discrimination laws fairly narrowly.  The Supreme Court will soon decide whether to grant cert in that case. Understandably, the cert petition relies heavily on Hurley and Boy Scouts, but the NM Supreme Court read those cases as largely inapposite because they did not involve the application of anti-discrimination laws to commercial enterprises, and the opp cert draws the same distinction.

And for good reason. Suppose that the Court grants cert in Elane Photography and holds that commercial enterprises have a right of expressive association to exceptions from anti-discrimination (and other) laws. As in the religion cases under RFRA-like regimes, there is a threshold question of sincerity, but unlike in the religion cases, there is no further requirement that the sincerely held belief be distinctively religious. The absence of that additional qualifier makes Elane Photography a bomb that holds the potential to blow up anti-discrimination law.

To see just how reactionary the position of the Elane Photography petitioner is, consider a comparison. Even under the expanded version of the Arizona RFRA that Governor Jan Brewer vetoed late last month, the owner of a strip club could not keep out female customers unless he could show that he had a distinctly religious objection to permitting women into the club--a task that would seem difficult, in light of the fact that, you know, he owns a strip club. But if the petitioner in Elane Photography were to prevail, then all that the owner of the strip club would have to show is that he doesn't agree with the message conveyed by admitting women to his club.  Indeed, under the view advanced by the Elane Photography petitioner, the racist owner of a restaurant would be presumptively entitled to an exception from the obligation to maintain racially integrated facilities--so long as he was sincere in his belief that he disagreed with the message conveyed by racial integration. And, as a racist, he almost certainly would be sincere in that belief.  The core point is that the Elane Photography petitioner has staked out a position considerably to the right of the position taken by the Arizona legislature that was itself too far to the right even for Jan Brewer.

Can Elane Photography win on narrower grounds? The Court might distinguish between expressive activities like photography and ostensibly non-expressive activities that might run afoul of anti-discrimination law. Thus, Professors Volokh and Carpenter, as well as the Cato Institute, argue in their amicus brief that a ruling for Elane Photography would not entitle "caterers, hotels, and limousine companies" to violate anti-discrimination law because catering, hoteling and driving are not expressive activities.  However, they notably do not discuss intermediate categories like flower-arranging and baking, nor, more importantly, do they come to grips with the fact that scouting is not even arguably an inherently expressive activity; yet the Boy Scouts prevailed in the Supreme Court on the theory that association itself sends a message. (Their brief only cites the Boy Scouts case once, in a footnote, for an unrelated proposition.)

Moreover, the Court in Boy Scouts was at pains to allow the Boy Scouts to define themselves by their own message, without any inquiry into the inherent nature of the association, expressive or otherwise. Here is CJ Rehnquist for the Court in Boy Scouts:
associations do not have to associate for the “purpose” of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection. 
Let's see what happens when we substitute "business" for "association":
[Businesses] do not have to [do business] for the “purpose” of disseminating a certain message in order to be entitled to the protections of the First Amendment. A[ business] must merely engage in expressive activity that could be impaired in order to be entitled to protection. 
Thus, accepting the Boy Scouts logic in a commercial case would allow any business to throw in a racist, sexist, or homophobic message -- such as a sign professing white supremacy on the entrance to the hotel or on the side of the limousine -- and it will generate strict scrutiny of anti-discrmination law as applied to it.

The Cato/Volokh/Carpenter brief also attempts to cabin its argument by noting that exceptions to the public accommodations provisions of anti-discrimination laws do less to undermine such laws than do exceptions to the employment provisions of anti-discrimination laws. I think that's probably right, but there is nothing in their argument that would admit a principled distinction between public accommodations and employment. Indeed, the employment relation creates a greater impression of endorsement by the employer than does the mere willingness to serve customers, so by the logic of the Elane Photography petitioner, there ought to be a stronger case for exceptions from employment restrictions, not a weaker one. And in fact, Boy Scouts itself was the non-profit version of an employment case: The Boy Scouts of America objected to accepting respondent Dale as a troop leader.

Accordingly, despite the efforts of Cato and Professors Volokh and Carpenter, if the SCOTUS were to grant cert and rule for Elane Photography, it would open up a pandora's box of businesses seeking exemptions from anti-discrimination law. That box should remain tightly closed.


Postscript: My colleague Steve Shiffrin and I filed an amicus brief on behalf of the state in the New Mexico Supreme Court in Elane Photography.  The brief chiefly made arguments similar to those I have set forth above.  We then argued that, even if the court were to treat the application of the anti-discrimination statute to a commercial business as raising free speech concerns comparable to those at issue in Hurley and Boy Scouts, Elane Photography should nonetheless lose on the ground that photographing a same-sex ceremony would not actually be inconsistent with the beliefs or views its owners had articulated.

27 comments:

JHW said...

Elane Photography's claim is much closer to a case like Wooley than to a case like Boy Scouts. Its objection is not to any message supposedly sent by associating with gay people, but specifically to photographing a same-sex wedding, because of the message sent by that act (which is indisputably expression). There is nothing "incidental" about this burden; the New Mexico law penalizes Elane Photography BECAUSE it chooses not to engage in certain expression.

This clearly would not apply in the employment context. Hiring by a commercial business is not expression, despite Boy Scouts of America v. Dale. It might well apply to bakers and flower arrangers, but they at least present harder cases; a baker or flower arranger who objects to doing this for a same-sex wedding objects not to the content of the expression itself (it's not anything about the cake or the flower arrangement), but rather to its use to facilitate a same-sex wedding. It might be possible to devise a rule that would take that kind of objection out of the compelled speech doctrine.

Michael C. Dorf said...

In Wooley the government prescribed particular speech by New Hampshire drivers. Here the government does not require speech at all. It conditions operating a business on the act of non-discrimination. The fact that some acts of discrimination take the form of speech does not render an anti-discrimination law a regulation of speech, any more than the fact that some acts of murder are carried out by speech (as in the ordering of a hit) renders murder laws regulations of speech.


New Mexico's public accommodations law applies to ALL businesses, whether or not they are engaged in speech. In that sense, the burden on speech (and I agree that photography is speech) is incidental--just as in the Arcara case, NY's law applied to ALL businesses that were engaged in prostitution, even though the particular party was a bookstore. JHW's mistake here is understandable, however, because the SCOTUS has occasionally purported to apply heightened scrutiny in cases in which a law applicable to conduct happened to be applied to someone engaging in speech: E.g., Clark v Community for Creative Nonviolence. But when it has done so, it has applied the O'Brien test--which, while nominally something like intermediate scrutiny, is in operation toothless. Professor Shiffrin and I explained in our brief to the NM Supreme Court why the NM law would easily pass the O'Brien test, if it applied.

I explored the notion of incidental burdens on speech at length in Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1175 (1996).

Joe said...

"caterers, hotels, and limousine companies" to violate anti-discrimination law because catering, hoteling and driving are not expressive activities

Food overall can be expressive and it is unclear to me what the line is between making a cake and various other "expressive" things one can do with food, so the line between bakers and caterers to me in action appear somewhat dubious. Weddings overall are expressive -- decorations, clothing, designs for the hall etc. all could be covered.

A range of professions have some sort of "expressive" content and it is a bit strange to have Prof. Volokh -- a strong supporter of broad based free speech arguments -- try to draw lines like the three bears & say this is "too hot" while some other sort of thing might be "not enough" expression.

At his blog, to the annoyance of some, he really never addressed this. This is typical -- the contraceptive case is continuously a matter of people refusing to address how broad their argument would be if taking to a logical evenhanded conclusion.

The reference to Wooley is appropriate, but the main difference there is compelling interest. Promotion of equality in public accommodations is a much stronger interest than having some state motto on a license plate.

Also, that is a constant thing -- the person is in effect an ongoing billboard for a message she or he opposes. Here, the person now and then has to evenhandedly serve the public in the course of normal business and is serving equally serving as a speaker of the state. A polite "glad you came" from a server at a hotel even to a person you find immoral and corrupting to other patrons is different from a license plate that promotes such people as equal to you and me. This is what driving around with a motto on your license plate kind of does.

As to the exemptions in employment, the reasonable line there are for religious businesses like the one found in the Amos case. As noted by the concurring opinions, non-profit and/or religious businesses can be treated differently for 1A purposes than for-profit ones, especially of a corporate or secular character. But, some want to expand that principle, as we saw in Arizona.

Joe said...

"the government does not require speech at all"

The neutral nature of the law etc. is noted and that's important. Oregon v. Smith comes to mind.

But, once you run the bakery, e.g., you are "required" to evenhandedly provide the expressive cakes and this "requires speech at all" to some extent

Leo Felix said...

If the owners of Elane Photography are sincere about their beliefs, then in the event of an adverse ruling I would expect them to adopt a policy of not photographing weddings at all. Why is this not a chilling of speech, as in Tornillo?

Justin said...

But we have a black President now. So really, there's no need for antiquated civil rights remedies like the VRA or antidiscrimination laws. [/sarcasm]

Justin said...

On a more serious note, should artists have any first amendment protections from antidiscrimination laws? Should for-profit press? What would be the ramifications of an exception under the First Amendment for these groups? What would the ramifications be of not having an exception??

None of these questions are meant to be rhetorical.

Hashim said...

Although I agree the caselaw here is very confused, I don't think your speech/conduct distinction of Wooley is correct.

Take, for example, cases like Holder v. Humanitarian Law Project, Cohen v. California, and Hustler v. Falwell. Each of those cases involved laws that generally regulated conduct (respectively, material support of terrorism, breach of peace, and intentional infliction of emotional distress). Yet, when those general laws were applied to speech because the communicative aspect of the speech triggered the law, the Ct applied full 1A scrutiny, not just O'Brien. Indeed, the Govt in Holder expressly argued for O'Brien, and the Ct rejected the argument.

Here, once you concede that photography is speech, as you have, then it seems to me that there's a strong argument that full 1A scrutiny likewise applies. Consider the following quote from Holder (with one word added because this is a compelled speech case): "The law here may be described as directed at conduct, as the law in Cohen was directed at breaches of the peace, but as applied to plaintiffs the conduct triggering coverage under the statute consists of [not] communicating a message."

Arcara v. Cloud Books is entirely distinguishable. There, the public nuisance was prostitution, which is not itself speech at all, and so the burden on speech was "incidental" in the sense that illegal non-speech conduct just happened to be occuring in a bookstore.

Michael C. Dorf said...

Hashim is correct that the Court does sometimes make exactly the move he describes, but it does so without adequate explanation (which is why I referred to the same move in the expressive association cases as somewhat mysterious). Meanwhile, to make matters more muddled, the Court has not renounced the O'Brien line of cases. Clark v CCNV is an example where, unlike Arcara, the act that drew the penalty was in fact expressive in the particular case.

For what it's worth, I think I could live with a more consistent and even somewhat more robust application of O'Brien to cases like this -- but I think the distinction between Arcara and O'Brien is not nearly as analytically sharp as Hashim's comment assumes. There's an inevitable characterization problem in all of these cases. Do we say that the bookstore in Arcara merely "happened" to be a bookstore, but that the key is the fact that it was being used for prostitution? We could also say that the photographer merely "happens" to be a photographer but that the key is that it is discriminating in the provision of services.

My 1996 Harv L Rev article tries out a number of possible tests. It also ends up in a place that is a bit more exception-friendly and libertarian than where I find myself now. (I'm older!)

Hashim said...

The difference in the O'Brien cases is that the Govt is not regulating the conduct *due to its communicative aspect.* In CCNV, for example, the harm to the Govt from a person's sleeping in the park was independent of the fact that some people were sleeping in the park to convey a message of protest. By contrast, strict scrutiny rather than O'Brien applies where the Govt bans expressive conduct *because of its communicative aspect* -- as in the flag-burning cases, where the Govt took offense at *the message* rather than the conduct, which is why it allowed flag-burning for other reasons.

Likewise, in cases like Holder, Cohen, and Hustler, the law was triggered *because of the message of the speaker*. And in Elaine Photography, the law is triggered *because of the message of the non-speaker.*

O'Brien would be the right analogy if a business engaged in discriminatory conduct but claimed that it did so for expressive reasons. It's not the right analogy where a business engages in discriminatory speech (or non-speech, as the case may be).

The only outlier to the above analysis of which I'm aware is a sentence in RAV that states that the Govt can discriminate among proscribable speech (e.g., fighting words) where the speech triggers a ban on conduct. Whatever the basis for that rule, however, it shouldn't be extended to non-proscribable speech (i.e., disapproval of gay marriage).

Dan Baker-Jones said...

I'm wondering if stating that "photography is speech" is putting more into it then is required. If we were talking about a photographer who makes independent decisions on what to photograph, then the "photography is speech" position would be valid and relevant. But the issue here is a photographer who is being hired specifically to utilize their skills at someone else's direction. It is more a work-for-hire matter than an expression matter. The NM law is not "penaliz[ing] Elane Photography BECAUSE it chooses not to engage in certain expression", as JHW claimed. It is not Elane Photography's expression that is being questioned, but their business decision to refuse to use their skills for potential clients based on the clients' sexual orientation. Could an electrician refuse to do electrical work for a same-sex couple's house because they don't want to send the message they support such unions?

Michael C. Dorf said...

Hash: I agree with your characterization of O'Brien, which is why the case is wrongly decided under the test the Court announces--i.e., the law was content-based. But I disagree with your characterization of the application of anti-discrimination law to people like wedding photographers. The law isn't triggered by the message (or the refusal to send a message) of the photographer. New Mexico would apply its law to any discriminatory non-service by covered entities. E.g., suppose that Shmelane doesn't want to photograph inter-racial weddings because she believes that doing so will break her camera. She would be in violation of the law even if she were not in any way concerned about the message sent or the art produced (or not produced), even if she favors inter-racial marriage and thinks it beautiful. So far as the triggering condition is concerned, the expressive purpose or lack thereof is irrelevant. What matters is the act of discrimination.

Now, I agree that this doesn't settle the matter. One can still think that where the triggering act is, from the regulated actor's perspective, expressive, a tougher standard needs to be met. But that's a different kind of argument (and again, I address these issues in the 1996 article).

Hashim said...

I still don't see how your argument works under Holder, Cohen, et al. In those cases, full 1A scrutiny was applied where the law had been triggered when the party had engaged in the proscribed conduct *through speech as a matter of fact*, notwithstanding that the law also would have been triggered if, as you emphasize, the party *hypothetically* had engaged in the proscribed conduct through a non-speech act.

In other words, the question is *not* whether the law would hypothetically have been triggered by non-speech conduct, since that'll always be true where a general ban on conduct is at issue. Instead, the question is whether the law in fact was triggered by speech or expressive conduct.

Where the law is triggered by pure speech, full 1A scrutiny applies. Where the law is triggered by expressive conduct, then either full 1A scrutiny applies or intermediate O'Brien scrutiny applies, depending on whether the law is targeting the expressive aspect of the conduct or instead the non-expressive effects of the conduct. (Unlike you, by the way, I agree with the distinction drawn between O'Brien and Eichman, since the feds had a non-speech reason to preserve draft cards, but had no non-speech reason to preserve flags.)

Michael C. Dorf said...

My fundamental point is conceptual and normative, not doctrinal. As I've stated several times now, the doctrine is confused and inconsistent. In particular, the Court assumes (as I think you do too, Hash), that the world of human activities divides neatly into pure speech, expressive conduct, and non-expressive conduct. But these categories are not description-independent--and for the most part the relevant description is the one that appears in the relevant law. Thus, one last example. Suppose a law forbidding "damaging private property" is applied to what is undoubtedly speech as a matter of fact: Unauthorized graffiti. I have no doubt that the defendant would not be permitted to mount a First Amendment defense, and that's because the government interest (protecting private property) has nothing to do with expression. Likewise, the government interest in forbidding discrimination has nothing to do with expression. The fact that some SCOTUS cases are inconsistent with this principle without providing an explanation doesn't mean they're right--or that even if they're assumed to be right, that the principle should be expanded to create a potentially giant hole in anti-discrimination law. Matt Adler's excellent Mich L Rev article on the rule-dependency of constitutional law is useful here.

Hashim said...

Fair enough on the distinction betweeen "normative" and "doctrinal." So, at some point, I'd love to hear your "normative" argument for why:

(1) it is affirmatively appropriate for breach-of-peace statutes to be applied to speech acts that unintentionally cause a disturbance, and for the IIED tort to be applied to speech that merely mocks a person;

or at least (2) it is somehow less problematic "to create a potentially giant hole in [breach-of-peace and IIED] law" than in antidiscrimination law.

JHW said...

There are different senses of "incidental" at issue here. The burden on speech in Elane Photography is not "incidental" in the sense of Arcara; unlike in Arcara, where the issue was the presence of prostitution (not speech, not taken by the Court to be expressive conduct either) on the premises, what triggers application of the anti-discrimination law in this case is the refusal to engage in speech.

Nor is it "incidental" in the sense of O'Brien. It is precisely photography as speech that is being regulated because that is the service that was requested, the service that the New Mexico law requires to be offered irrespective of sexual orientation. It is not conduct that Elane Photography invests with expressive significance; it is expression, it's a service whose significance and value to customers is precisely the fact that it is expression.

It IS incidental in a third sense: the law does not single out speech for special burdens. But free speech doctrine has never taken that as sufficient even to avoid strict scrutiny, as Hashim points out.

Dan Baker-Jones raises the alternative argument that businesses like Elane Photography are better understood as vehicles for the expression of others. This might work in alternative circumstances but it's hard to see its application to an independent contractor who largely has control over the artistic choices.

Jimmyd said...

" As I've stated several times now, the doctrine is confused and inconsistent. In particular, the Court assumes (as I think you do too, Hash), that the world of human activities divides neatly into pure speech, expressive conduct, and non-expressive conduct."

The world can be divided neatly into such conceptual categories. The problem is that when those concepts are applied in a consistent manner to real world cases they result in decisions that might impinge the reputation of the court in effete quarters, which as human beings the judges of SCOTUS find intolerable. The reason that 1A doctrine is muddled and confused is because it is entirely results orientated. In my view the way the court deals with 1A issues is (1) examine the content of the message (2) then consider carefully how the reputation of the court would be enhanced or suffer if appears as if the court is approving or disapproving of the content of the message (3) then craft an opinion based upon how best it can finagle public opinion in a desirable direction. Conceptual consistency or clarity be damned!

Professor Dorf is concerned about how a ruling in Elane Photography could blow up anti-discrimination law. My own concern is that the court is going to use it to return to some stupid idea of "liberty of contract" and revive Lochner. My own view is simple: Elane should lose because there is no fundamental right in the Constitution to do business. By applying for a business license with the state of NM she has given up whatever free speech rights or religious freedoms she has--at least as they are expressed through that business.

Evin Terna said...

Also, that is a constant thing -- the person is in effect an ongoing billboard for a message she or he opposes. Here, the person now and then has to evenhandedly serve the public in the course of normal business and is serving equally serving as a speaker of the state. A polite "glad you came" from a server at a hotel even to a person you find immoral and corrupting to other patrons is different from a license plate that promotes such people as equal to you and me. This is what driving around with a motto on your license plate kind of does.http://lol.mmo18.com/ | fifa14.mmo18.com

Justin said...

JHW:

That's too broad. The New York Times is a business. So are numerous political-advocacy magazines, and even blogs. Saying businesses don't have first amendment rights for direct, expressive conduct, would blow up the First Amendment entirely.

Justin said...

Sorry, that was for Jimmyd, not JHW.

FlameCCT said...

There seem to be a few points that are missing from the argument.

As you pointed out in another article, at the time of the refusal, there was no same-sex marriage in NM. So how can Elaine be held accountable for refusing to photograph a non-wedding because they advertise wedding photography?

Elaine also does more than take "pictures". They also apply artistic procedures to produce the final product which uses the pictures. It is this artistic expression that was demanded.

If Elaine can be compelled to violate their religious beliefs to produce a product then the same would also apply to compelling a butcher using kashrut (Jewish) or halal (Islam) to produce pork products that violate their religious beliefs. Or a minority print shop can be compelled to produce KKK or NAZI products. Or a homosexual run advertising business to produce anti-same sex marriage campaigns.

Jimmyd said...

@Justin. Correct. That's the point. It needs to be blown up entirely because that is the only way that any conceptual clarity can be brought to the situation. In my view too many commentators think they can unravel, unweave, and/or unwind the Gordian knot of the 1A. In fact, it simply needs to be cut and the strands rejoined afresh.

Joe said...



As you pointed out in another article, at the time of the refusal, there was no same-sex marriage in NM. So how can Elaine be held accountable for refusing to photograph a non-wedding because they advertise wedding photography?"

If a couple has a merely religous wedding ceremony for which they want let's say catering and do not obtain a license, is it a "non-wedding"? Anyway, the public accomodation here is providing certain services and they need to treat customers evenhandedly. This is so if the government itself doesn't provide the services.

Elaine also does more than take "pictures". They also apply artistic procedures to produce the final product which uses the pictures. It is this artistic expression that was demanded.

It is unclear what "artistic" procedures should be enough here. What degree of skill? Isn't taking a picture itself often "artistic," a matter of choosing camera angles and so forth, even if you are simply taking vacation photos?

If Elaine can be compelled to violate their religious beliefs to produce a product then the same would also apply to compelling a butcher using kashrut (Jewish) or halal (Islam) to produce pork products that violate their religious beliefs. Or a minority print shop can be compelled to produce KKK or NAZI products. Or a homosexual run advertising business to produce anti-same sex marriage campaigns.

The print shop example is a good one as to line-drawing. Yes, if a black person runs a Kinkos, do they get to pick and choose the type of person they can provide copies too? Maybe, s/he is a black nationalist that thinks whites are devils. Can s/he not sell to whites? The KKK and Nazi example is associational -- the issue here is equal protection for certain personal characteristics such as sexual orientation. So, not quite the same thing. But, gays that run print shops, e.g., usually don't decide not to serve people who print things they disagree with.

It is not clear that "the same" occurs when a specialty religious store that only sells that type of food is required to sell something else as compared to here where a wedding photographer is not allowed to discriminate by the sexual orienation of the customer. The equivalent example would be that the butcher would have to sell to Jews or Muslims.

Dan Baker-Jones said...

The analogy to a religious butcher fails. The government could not force a butcher who advertises as a kashrut or halal butcher to engage in any other kind of butchering, no matter the reasons for their choice of specialty nor the demands of potential clients. However, that same butcher could not refuse to sell his wares to non-believers because of their (the butcher's or the customer's) faith. Similarly, Elane Photography might actually have an argument if they only offered photographic services for weddings, but they advertised their services for "commemorating significant life events" (not to mention the whole "what is a wedding" problem). And although they may be using "artistic procedures" and "largely [have] control over the artistic choices", that does not diminish the fact that they are simply selling a service, not their independent expression. A print shop owner is not expressing himself when he formats and typesets a work or makes copies for a paying customer, regardless of the content or the artistry involved in providing the service.

Evin Terna said...
This comment has been removed by the author.
FlameCCT said...

Dan,

The butcher argument doesn't fail because in both instances the company is using their skills to provide a service and refuse on religious beliefs to provide certain services.

It is interesting though that the photographer keeps the rights to all the photographs taken and in the case of Elaine's, they offer to use their skills and artistry to create an expression of the event using the photos taken.

While this next comment may sound flippant, it is meant seriously. If a company cannot refuse service based on their beliefs then how can they post a sign that says "No shoes, no shirt, no service"? Or how can a fitness center discriminate against men by being women only?

Dan Baker-Jones said...

FlameCCT,

By that logic, the government would be allowed to require bookstores to sell religious books they don't believe in, and that's simply not the case. For example, I know of no Christian bookstores that sell the Koran, or The Satanic Bible by Anton LaVey, and indeed I am personally aware of several instances of bookstores not selling so-called "new age" books explicitly because the bookstore's management didn't want to promote the espoused beliefs contained therein. The focus is not on what the business chooses to sell (whether a good or a service), as such decisions are and should be protected, but to whom (and why or why not) the business chooses to sell.