There are many people that still believe that interracial marriage is a sin, but the state requires that individuals provide services to them even if it offends their religious views.

What you are asking for is a specific loophole so that we can protect everyone against discrimination except gays and lesbians. That’s pretty sad.

David Nieporent: Really? So when you see a car with New Jersey plates, what goes through your mind is that the driver is affirmatively endorsing the claim that New Jersey is a garden state?

No, but if New Jersey decided that all licenses plates shall state “Abortion Rocks” or “Gays are better than heterosexuals, I would certainly expect that there would be a clear first amendment concern. Similarly, I would expect that at least one person might have an issue with practically anything that New Jersey might put on a license plate, and that their speech rights may need to be addressed if the issue is raised.

David Nieporent: I’m beginning to think you’re just trolling here

The findings note that the Owners had an unwritten rule that they would not photograph anything that conflicted with their religious beliefs. They then noted that the ‘did not approve of homosexuality.’ They also noted that photographed a wide range of life events. Since a same sex commitment ceremony is materially the same as an opposite sex wedding (except due to sexual orientation), they are discriminating based on sexual orientation

(and please let’s not re-argue your “I can refuse service to people with black skin, and it’s not racial discrimination arguments”. No court is going to buy that. They have exceeded the burden of proof that this was discrimination based on sexual orientation).

David Nieporent: That “implied approval” may have been relevant in those particular cases does not mean that lack of implied approval means there’s no first amendment issue.

I never said the lack of implied approval indicated that there was no first amendment issue. However, you can’t apply the standards of either Hurley or Dale to this one, if there is a substantial difference in the context of the case itself. There are other cases that more closely approximate this case in which the court ruled in favor of the anti-discrimination laws even when they burdened free speech.

Jamie Ward: I would entirely disagree with this statement.

Really? So when you see a car with New Jersey plates, what goes through your mind is that the driver is affirmatively endorsing the claim that New Jersey is a garden state? That the driver of a car with New Mexico plates is asserting that New Mexico is the land of enchantment? That the driver of a car with New Hampshire plates personally thinks we should “Live Free or Die”? You don’t just look at these as state slogans, but as statements by the drivers?

Jamie Ward:

David Nieporent: Neither one of the quoted emails said what you claim

See the findings of facts.

I’m beginning to think you’re just trolling here (yes, I can be slow on the uptake about things like that sometimes; I like to give people the benefit of the doubt.) Not only did I “see” the findings of facts, but I quoted from them. Your alleged quotes from Elane’s emails do not appear in the emails quoted in the findings of fact.

Jamie Ward: The cases in Hurley and Dale deal with the implied approval. It is relevant.

That “implied approval” may have been relevant in those particular cases does not mean that lack of implied approval means there’s no first amendment issue. See the United Foods case I mentioned earlier. See Abood. See Wooley v. Maynard.

David Nieporent: More generally, there is a long line of “compelled speech” cases that says that it’s the compulsion itself, not the “implied approval of a message,” that poses first amendment problems. You can’t bypass the first amendment simply by saying, “Well, nobody would think the photographers approve of the wedding.”

The cases in Hurley and Dale deal with the implied approval. It is relevant.

David Nieporent: On an even more rational level, there is a knowledge and general understanding that people drive automobiles with license plates without necessarily condoning the message that the state puts on those license plates

I would entirely disagree with this statement.

David Nieporent: Neither one of the quoted emails said what you claim

See the findings of facts.

Jamie Ward: On even a rational level, there is a knowledge and general understanding that photographers regularly take photographs of clients and events without knowing much about them or necessarily condoning the actions or events portrayed in the photos.

On an even more rational level, there is a knowledge and general understanding that people drive automobiles with license plates without necessarily condoning the message that the state puts on those license plates. But the Supreme Court still held that requiring someone to drive around with a license plate bearing a message one opposed was unconstitutional.

And in United States v. United Foods, the respondent company wasn’t required to do anything in “public”; it was merely taxed so the government could promote mushroom sales. The Supreme Court held that this compelled speech was a violation of the company’s first amendment rights.

Probably because the Owner emailed the client and told them she was denying service because of their identity and followed that up with a statement that there was an unwritten rule in the company that they would deny services to gays and lesbians because they “did not approve of homosexuality.” Based on the evidence presented, the company would deny ANY service to gays and lesbians, not just the one that was actually denied.

Are you just making up facts here? None of that appears in either the decision of the NM Human Rights Commission or the New Mexico District Court. The Human Rights Commission’s decision quotes the emails directly. The photographers’ first email said, in its entirety:

“Hello Vanessa,
As a company, we photograph traditional weddings, engagements, seniors, and several other things such as political photographs and singer’s portfolios.
-Elaine”

The followup email from the photographers said,

Hello Vanessa,
…. Yes, you are correct in saying we do not photograph same-sex weddings, but again, thanks for checking out our site!
….Elaine

Neither one of the quoted emails said what you claim, and it’s hard to believe that if there were other emails that had actually said what you claimed, that the HRC would have neglected to mention it. Do you have some factual basis for your statements?

David Nieporent: How come people who oppose Elane’s position here keep trying to make this about the identity of the clients, when the first amendment issue is actually about the content of the speech?

Probably because the Owner emailed the client and told them she was denying service because of their identity and followed that up with a statement that there was an unwritten rule in the company that they would deny services to gays and lesbians because they “did not approve of homosexuality.” Based on the evidence presented, the company would deny ANY service to gays and lesbians, not just the one that was actually denied.

On even a rational level, there is a knowledge and general understanding that photographers regularly take photographs of clients and events without knowing much about them or necessarily condoning the actions or events portrayed in the photos. However, it this case the difference in the client was apparent, and the evidence concludes that there was an intent to discriminate based only on the sexual orientation of the clients.

Providing photographic services to a private individual is not even similar to the public actions and implied “approval of a message” that are argued in Dale or Hurley.

Exactly. How come people who oppose Elane’s position here keep trying to make this about the identity of the clients, when the first amendment issue is actually about the content of the speech?

jrose: I suspect you are correct on these hypotheticals because there is no serious burden on expression if an ad agency is compelled to proivde services based on who their clients are, or who the clients cater to (but since you said you can look it up, please provide citations). But, can an ad agency be compelled to provide service for a same-sex marriage planning company, or a church’s Martin luther King, Jr. day celebration event?/blockquote>Exactly. How come people who oppose Elane’s position here keep trying to make this about the identity of the clients, when the first amendment issue is actually about the content of the speech?

Jamie Ward: David, your analysis is not even based on case law and is so far beyond reality there actually isn’t even a good place to start.

Well, my analysis is similar to that of Prof. Volokh’s, and he may actually be something of an expert on the subject, don’t you think?

This company is a business. Like Wal-Mart, a dry cleaner, or the local diner. They sell stuff to people. That the product is inherently creative has little to do with the issue.

Well, no; it has everything to do with the issue. In fact, it is the entire issue.

You seem to think there’s some sort of exception to the first amendment for “businesses.” There isn’t. Read Justice Chin’s concurring opinion in Lyle v. Warner Brothers Television, for instance. (Bonus: it cites Prof. Volokh.)

Companies that offer creative content for sale are still subject to anti-discrimination laws.

Sheesh, you really do like begging the question, don’t you? That last sentence is what needs to be proven; you can’t prove it just by re-asserting it.

Or, more precisely: of course companies that offer creative content for sale are subject to anti-discrimination laws; that’s not in doubt. Nobody is suggesting, for instance, that Elane can refuse to hire a black person to work the cash register. The issue is what happens when those anti-discrimination laws directly clash with the first amendment, by either compelling or forbidding particular speech. Whether it’s a “business” or a “service provider” or an “organization” or a “parade” is irrelevant; the question is whether applying the anti-discrimination law would substantially burden the first amendment rights at stake.

RussellD: Should an advertising agency be allowed to tell the local gay bar that they won’t provide services because they cater to gay people? Can they deny services to the local African American church and tell them it’s because they think negroes should still be slaves? The answer by the way is no — look it up.

I suspect you are correct on these hypotheticals because there is no serious burden on expression if an ad agency is compelled to proivde services based on who their clients are, or who the clients cater to (but since you said you can look it up, please provide citations).

But, can an ad agency be compelled to provide service for a same-sex marriage planning company, or a church’s Martin luther King, Jr. day celebration event?

Oh yeah, one more thing. When a potential client contacts you and says they want to hire you, if you happen to object to something about them, you tell them you are unavailable on that day. You don’t write them back and tell them you are discriminating against them because of who they are so that they have a smoking gun for the court case. The Owner wanted to prove a point and to shame the Client.

Jamie Ward: Read the opinion, it’s available online. First we must determine whether the Boy Scouts of America are an ‘expressive association.’ Test one is the expressive association test, which has three parts. Elane photography is not an expressive organization.

Yes, it is. It’s inherently such, which gives it much more rights than an organization like the Boy Scouts, which is trying to claim expressive association, a much stricter standard. For expressive association, you have to show that the organization exists for the purpose of expressing a specific message and that associating with specific members is a necessary part of expressing that message. Only after that can you evaluate whether the application of state law (such as anti-discrimination law) poses a substantial burden on that message. But Elane by its very nature expresses messages, so it satisfies the initial step; the only remaining question is whether the application of anti-discrimination law substantially burden’s Elane’s ability to express its message.

Dale in no way held, as you seem to think, that only expressive association, rather than pure expression, is protected by the first amendment from encroachment by anti-discrimination law.

Jamie Ward: awesome. now you are attempting to apply a public parade put on by a group that wishes to control the message to a business that provides services to private individuals. can you see the difference?

Are you arguing that the restrictive standard applies when expressive association or group message is at stake, but a more lenient standard should apply when an anti-discrimination statute infringes upon a service provider’s expression? That would get us back to Eugene’s hypothetical: should a person who writes press releases as a service be compelled to do so for a same-sex marriage planning company or a Scientology book distribution company if he disagrees with the message?

jrose: Of course it isn’t. But in Hurley, the Court frowned upon an application of an anti-discrimination statute that seriously burdened expression having nothing to do with association.

awesome. now you are attempting to apply a public parade put on by a group that wishes to control the message to a business that provides services to private individuals. can you see the difference?

Jamie Ward: Elane photography is not an expressive organization.

Of course it isn’t. But in Hurley, the Court frowned upon an application of an anti-discrimination statute that seriously burdened expression having nothing to do with association.

Jamie Ward: I think if you apply the test in O’Brien, you would find that it doesn’t seriously burden free speech.

I agree that if the test from O’Brien is used, Elaine’s loses. But, why should that test apply here?

jrose: What is the “step one” you refer to? Dale rejected the test used in O’Brien.

Read the opinion, it’s available online. First we must determine whether the Boy Scouts of America are an ‘expressive association.’ Test one is the expressive association test, which has three parts. Elane photography is not an expressive organization.

jrose: To the contrary, I am open to persuasion as to how Elaine’s expression rights were not seriously burdened.

jrose: Please cite those cases that upheld anti-discrimination laws even when they seriously burdened constitutionally protected activities.

I think if you apply the test in O’brien, you would find that it doesn’t seriously burden free speech.

Paul Davis: You can’t simply bypass step one as irrelevant, and proceed to step two. The court gives direction on this in the Dale opinion itself (reference United States v. O’Brien).

What is the “step one” you refer to? Dale rejected the test used in O’Brien.

Paul Davis: It seems as though you are actively searching for a reason to reverse the finding in Elane instead of considering the facts of the case.

To the contrary, I am open to persuasion as to how Elaine’s expression rights were not seriously burdened. I’m even open to persuasion as to why the test from Dale ought not be used, and what the proper test should be (but you have provided no good reasons as of yet).

Paul Davis: There is a long line of cases prior to Dale that upheld anti-discrimination laws even when they burdened constitutionally protected activities. Dale did not overturn all those previous findings, it only clarified a particular narrow application in regards to expressive associations.

Please cite those cases that upheld anti-discrimination laws even when they seriously burdened constitutionally protected activities.

Jamie Ward: I concur as well. Applying Dale standards to this case is not even logical.

Bigots LOVE to trot out Dale. It’s the one decision that the Supreme Court has issued where those homosexual activists were put in their place. Bigots think that Dale applies to everything and everyone.

Paul Davis: You can’t simply bypass step one as irrelevant, and proceed to step two.

jrose: I said that those which seriously burden free speech will be found unconstitutional on as applied basis.

In Dale, the court first found that BSA was an “expressive association”. The court then goes on to consider the burden on free speech. I’ve already noted that Elane Photography fails the expressive association test. You can’t simply bypass step one as irrelevant, and proceed to step two. The court gives direction on this in the Dale opinion itself (reference United States v. O’Brien).

It seems as though you are actively searching for a reason to reverse the finding in Elane instead of considering the facts of the case. There is a long line of cases prior to Dale that upheld anti-discrimination laws even when they burdened constitutionally protected activities. Dale did not overturn all those previous findings, it only clarified a particular narrow application in regards to expressive associations.

Jamie Ward: I think you should read and understand BSA v. Dale a little more thoroughly before you pull it out as a justification that any and all anti-discrimination laws that burden free speech should be found unconstitutional. The justices were very concise in their opinion as it applied in this case.

I didn’t claim that any and all anti-discrimination laws that burden free speech should be found unconstitutional. I said that those which seriously burden free speech will be found unconstitutional on as applied basis. I haven’t seen anything in Dale to suggest otherwise, but who knows what distinctions a future SCOTUS might make. I will only note that this judge’s ruling was consistent with Dale, in that he found no such serious burden.

jrose: If read the paragrpah preceding this quote, you will realize the quote has nothing to do with the motive of the law in any particular application (the motive wasn’t promoting an approved message in Dale either).

I think you should read and understand BSA v. Dale a little more thoroughly before you pull it out as a justification that any and all anti-discrimination laws that burden free speech should be found unconstitutional. The justices were very concise in their opinion as it applied in this case.

Jamie Ward: BSA v. Dale is very limited in application to other cases and does not include a “serious burden” test on free speech.

Quoting from Dale, distinguishing Roberts, Duarte and New York Stat Club Assn., ‘[a]nd in the associational freedom cases such as Roberts, Duarte, and New York State Club Assn., after finding a compelling state interest, the Court went on to examine whether or not the application of the state law would impose any “serious burden” on the organization’s rights of expressive association.’

Jamie Ward: You may be referencing the “expressive association” test, but this photography company would not meet the very first of the three parts of that standard. 

There is nothing in Dale which suggests the “serious bruden” test is limited to expressive association, and what “three parts” are you talking about?

Jamie Ward: Furthermore, BSA v. Dale concludes: “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.”

If read the paragrpah preceding this quote, you will realize the quote has nothing to do with the motive of the law in any particular application (the motive wasn’t promoting an approved message in Dale either). The quote’s only purpose is to state that the courts cannot be guided by their views about the rightness or wrongness of the Boy Scouts viewpoint. That applies here as well to Elaine’s viewpoint.

David Nieporent: Uh, wrong. “This” is an issue specifically about same sex marriage, because “this” is about a specific case in New Mexico which involved same sex marriage

Wrong! You’re an idiot. I Dave Nierporent, am superior and better than you! Bye now, and please leave with your reasoning and thoughtfulness. We only take snark remarks and belittling others on this discussion board. I can’t make a real argument, so I try to make others feel inferior and stupid so that they don’t see through my baseless arguments.

Actually, it’s a case that specifically involves sexual orientation and a state’s anti-discrimination law.

Jamie Ward: BSA v. Dale is very limited in application to other cases

Says who?

and does not include a “serious burden” test on free speech.

Well, it includes a “significant burden” test. (“We must then determine whether Dale’s presence as an assistant scoutmaster would significantly burden the Boy Scouts’ desire to not ‘promote homosexual conduct as a legitimate form of behavior.’”) Is the distinction between “significant burden” and “serious burden” really meaningful enough to matter for the purposes of this discussion? (Moreover, the case quotes the Jaycees case, which did use the exact phrase “serious burden.”)

You may be referencing the “expressive association” test,but this photography company would not meet the very first of the three parts of that standard. Furthermore, BSA v. Dale concludes: “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” The anti-discrimination law as applied in this case is not attempting to force the photographer to promote an approved message for no other reason than that message. It is being applied to require that products and services be provided equally to citizens. The law may burden free speech, but it does have a compelling reason beyond the message itself and therefore BSA v. Dale is not applicable.

Have you ever looked up the phrase “conclusory” in the dictionary? A copy of your argument is right there next to the word.

One might just as easily say, “The anti-discrimination law in New Jersey was not attempting to force the Boy Scouts to promote an approved message for no other reason than that message. It was being applied to require that public accommodations be provided equally to citizens. Therefore, BSA v. Dale is not applicable.”

In short, your attempt to distinguish them is completely unavailing; it’s just saying, “It’s different because it’s not identical,” without actually identifying any relevant differences. In each case, we had a state government which didn’t approve of a particular message that an organization wanted to express, and tried to use its anti-discrimination statute to compel the organization to express a different message.

RusselD: Yes. He titled this post “Religious Accommodation and a Right Not to Participate in Same Sex Marriage.” instead of “Religious Accommodation and a Right to be Exempted to Anti-Discrimination Laws” This is not an issue related specifically about same sex marriage, despite his attempts to do so.

Uh, wrong. “This” is an issue specifically about same sex marriage, because “this” is about a specific case in New Mexico which involved same sex marriage. Once again, outrage substituting for reading.

jrose: The test comes from Dale (is expression seriously burdened).

BSA v. Dale is very limited in application to other cases and does not include a “serious burden” test on free speech. You may be referencing the “expressive association” test, but this photography company would not meet the very first of the three parts of that standard.

Furthermore, BSA v. Dale concludes: “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” The anti-discrimination law as applied in this case is not attempting to force the photographer to promote an approved message for no other reason than that message. It is being applied to require that products and services be provided equally to citizens. The law may burden free speech, but it does have a compelling reason beyond the message itself and therefore BSA v. Dale is not applicable.