Cases coming up in Religious Liberty World

I know a few of you are into religious liberty questions.

The first is a New Mexico case in which a photographer refused to shoot the wedding of a homosexual couple because she did not approve. Under New Mexico's anti-discrimination laws, she was sanctioned by some New Mexico agency.

http://volokh.com/2009/12/16/new-mexico-trial-court/

The case is Elane Photography, LLC v. Willock, and I blogged about it here, when it was being considered by the New Mexico Human Rights Commission. The decision was handed down last Friday, but the opinion wasn’t distributed until yesterday. I hope to blog more about it today, but here’s my analysis from last year:
Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane’s work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock’s same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney’s fees and costs....
[The order rests] on two interpretations of state law: (1) This sort of photography company constitutes a “public accommodation,” defined by state law “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.” (2) A refusal to photograph a same-sex commitment ceremony constitutes sexual orientation discrimination, which New Mexico law forbids. These may or may not be sensible interpretations of the statutory text. But the result seems to me to likely violate the First Amendment (though there’s no precedent precisely on point).

[1. Compelled Speech.] Photography is an art, and Huguenin is an artist. It may not be high art, but it embodies a wide range of artistic choices (especially since she says she takes a “photojournalist” approach, rather than just doing normal staged photos). And though she sells the art to its subjects, that is of course part of a long and continuing tradition in the arts, including painting and sculpture, as well as photography. Certainly many of the works protected by the First Amendment (books, newspapers, movies, and the like) were created for money and distributed for money.

Yet the New Mexico government is now telling Huguenin that she must create art works that she does not choose to create. There’s no First Amendment case squarely on point, but this does seem pretty close to the cases in which the Court held that the government may not compel people to express views that they do not endorse (the flag salute case, West Va. Bd. of Ed. v. Barnette, and the license plate slogan case, Wooley v. Maynard).

For whatever it’s worth, Huguenin also says she exercises political judgment in deciding what to photograph (for instance, she reports that she refuses to make photographs that put horror films in a positive light, or to take photographs that positively portray abortion, p*rnography, or nudity, as well as same-sex marriage). I don’t think that sort of political selectivity should be required for photographers to be protected as artists, but it seems to me to highlight the scope of the artist’s judgment, and the artist’s constitutional right to exercise such judgment (just as a bookstore has the right to choose which books to stock).

Consider also a hypothetical analogy: Say that instead of Willock’s trying to hire a photographer, Willock was trying to hire a solo freelance writer (or a writer in a two-person freelancing partnership) to write materials for Willock’s (hypothetical) same-sex marriage planning company. The writer refused on the grounds that she didn’t want to promote such a company.

I take it the law would cover the writer as much as it would cover the photographer (why wouldn’t it?). Yet wouldn’t requiring writers — even writers of press releases and Web sites — to write words that express views they reject violate the First Amendment? And if not, what’s the difference between that and requiring photographers to take photographs that implicitly but strongly express views they reject? (Wedding photographs, of course, express views celebrating the event being photographed.) ...

[2. Religious Exemptions:] [And] the decision may also violate the photographer’s religious freedom rights under the New Mexico Religious Freedom Restoration Act.


The act, which is similar to the legal rules in place in about half the states and as to federal law, provides that
A government agency shall not restrict a person’s free exercise of religion [i.e., an act or a refusal to act that is substantially motivated by religious belief] unless ... the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.
Elaine Huguenin’s refusal to photograph a same-sex commitment ceremony does seem to be substantially motivated by her religious belief. She is therefore entitled to an exemption unless applying the law to her passes “strict scrutiny” — “is the least restrictive means of furthering [and is essential to furthering a] compelling governmental interest.”

What government interests might justify denying Huguenin the exemption? If the interest is in making sure that people have roughly equal access to services, regardless of their sexual orientation, then I doubt that requiring Huguenin to photograph the ceremony is essential to serving that interest. There surely are lots of other photographers in Albquerque, and I have no reason to think that all or even most of them share Huguenin’s religious objections; if Huguenin is given an exemption, same-sex couples will still have lots of photography services available to them. And given that a wedding photographer, to do a great job, likely needs to feel some empathy with the ceremony, forcing the Huguenins of the world into photographing a ceremony that they disapprove of will likely not give same-sex couples very good service.

But if the government’s view is that people have a moral right not to be discriminated against — entirely independently of any practical burden that such discrimination imposes on them — based on their sexual orientation, then it would appear that every instance of sexual orientation discrimination would violate that right. And if the government has a compelling interest in vindicating that right, then granting an exemption even to a few religious objectors would jeopardize that interest, and denying the objection would be essential to maximally furthering the interest. On the other hand, can New Mexico assert such a compelling interest when it itself discriminates against same-sex couples in its marriage laws?

So the religious freedom issue would turn, I take it, on what version of the government interest New Mexico courts ultimately recognize — the first version, focusing on practical access to services, which should lead to granting an exemption, or the second, focusing on a supposed moral right not to be discriminated against, which should lead to denying an exemption (if the government is seen as having a compelling interest in protecting that right). Incidentally, in a similar area, marital status discrimination in housing against unmarried couples, the several state courts applying state religious accommodation regimes have split, based precisely on this issue of which sort of interest is involved.

I have more thoughts on the subject, including some replies to responses that I had gotten to my original arguments, here; and, as I said, I hope to blog more on this soon.

The second case is going before the Supreme Court, and involves University of California and the Christian Legal Society. There the University told CLS that it could not exclude members because of sexual orientation. It's an interesting case because it has elements of private parties (Boy Scouts v. Dale) on public property (which usually means government can't regulate speech).

http://volokh.com/2009/12/08/more-on-christian-legal-society-v-martinez/

In 2008, Eugene, Andy Koppelman, and I appeared on a Federalist Society panel on “Freedom of Speech v. Antidiscrimination Law.” It so happens that I was asked to address the question raised in Martinez, whether a public university may ban a student group from discriminating on the basis of sexual orientation. My analysis is a bit different than Eugene’s below. Here’s the transcript, which is available at 31 North Carolina Central Law Review 207 (2009), Westlaw 31 NCCLR 207:

Let’s take our second example, on whether a student group can be denied university funding because it discriminates based on religion or sexual orientation in choosing its officers or members. So let’s assume this is a public university and the funding is therefore akin to the Rosenberger case. This case says that you have to be viewpoint-neutral in your funding, which means the First Amendment applies. The first question is, does the university have a policy that all student groups must be open to all students? If you want to run a student group, if you want funding, everyone has to be allowed to have equal access to that group. If so, I think there’s no First Amendment issue.
I think the university could have that policy if it considered its student groups to be part of the educational experience. Just like I, as a professor, can’t exclude people from my class on any particular basis, if you have a policy that student groups couldn’t do that, I think that would be fine. I think it would be a foolish policy. So, for example, if a student gay group in University of Mississippi is forced to allow conservative Christians to be members and officers, the conservative Christians could take over the group and change the basis of the group from helping gay students to try to convert them to heterosexuality. So I think it’s a wise policy let student groups decide who their officers and members should be, but I don’t think it’s constitutionally required if it’s a neutral policy.
But what if, on the other hand, university policy is that Republicans are free to exclude Democrats from the college group. Democrats are free to exclude Republicans. The student NRA is allowed to exclude pacifists. Pacifists are allowed exclude gun nuts and so forth and so–no offense.
(Laughter)
. . .
Professor Bernstein:–and so forth and on. But gay students aren’t allowed to exclude Christians who have conservative views on sexuality, or Christians aren’t allowed to exclude gay rights activists. Given that the right of expressive association is implicated, so there is a First Amendment interest here, then the university is engaging in viewpoint discrimination. And I think in that case, the student group would have a very plausible and hopefully winning argument before the courts that they cannot be denied funding for exercising their expressive association rights when other groups are permitted to decide who their members and officers should be.
And one last thing about that. We have to differentiate, even then, between status-based discrimination and ideology-based discrimination. So, I would think there would not be an expressive association right if the Christian group, for example, was excluding someone of homosexual orientation but who profess to agree with their Christian values, who says, “I do not engage in homosexual activities; I think it’s a sin, but I happen to prefer men in my mind to women for sexual purposes.” [This might even apply to someone who says, “I do engage in homosexual activities, but I agree with you that it’s sinful; just like many of you engage in fornication, masturbation, gambling, drinking, etc., even though you know it’s sinful.] And similarly, if, for example, the Christian group said we won’t take someone born Jewish who now professes Christianity, that would not be an ideological expressive association discrimination based on someone’s viewpoint, but instead they would just be discriminating based on someone’s status, a person of Jewish descent.

HAVE AT IT!

 

While I agree with you, there is precedent with racial discrimination that you can't refuse service to someone because of their color.

This should be an easy case (and hopefully some court of law will get it right). But let's play law school and change the facts a bit. Let's say someone had a quickie marriage shop in Vegas but refused to marry homosexuals (assuming it was legal) because they disapproved on religious grounds. Would this be the same thing as civil rights cases wherein businesses that served the public could not deny service based off of race (we must assume that the Federal Civil Rights Act has been extended to include homosexuals as a protected class).

We don't even need to change the facts that much. What if the photographer operated a public storefront wherein she operated her photography business? If the Nex Mexico statute covered discrimination against homosexuals, why would this be permissible.

I think there is something distinctly different in refusing services of these sorts based off of disapproval. Apparently New Mexico disagrees.

No one is commenting on the second case. It's going to go before the Supreme Court, and will have large effects on how private speech/ religious free exercise is carried out in public spaces. I think the fact the court took this case is indicative of the fact the University is going to lose. You need 5 votes to get cert to have your case heard before the Court, and I'm guessing Kennedy will be on the CLS's side based off of his previous rulings.

 

1. It's a big hypothetical, but one New Mexico has thrown into the mix.

2. Employment Division v. Smith says that neutral and generally applicable laws (1983 civil rights claims) are allowed to burden religion. There's a similar case for free speech.