road2serfdom: Creating art is “speech”. Renting a hotel room is not speech.

Taking a photograph is not “speech” either. Wedding photographers aren’t artists. They’re technicians.

Ricardo: But part of the phenomenon known as “having a job” involves sometimes doing things one finds personally distasteful.

Well, having a job means that one decides to make tradeoffs, you decide to to some things you find distasteful in exchange for some other benefit. But having the option to decide whether or not to make those tradeoffs is what distinguishes “having a job” from “being a slave”

The question is whether incidentally discriminatory control over artistic or expressive elements in running a business translate necessarily into discrimination that should fall outside first amendment protection.

For example consider Sambo’s Restaurant chain which was the subject of a number of lawsuits over public accommodation harassment due to their choice of name (which was oddly unrelated to the homonym and racial slur, though how you get a racial slur about African-Americans from a story about a Tamil child, I have never been entirely sure).

Where do you think the line should be drawn?

then she is violating the contract that she herself signed and should rightfully be sued for breech of contract.

How in the world are those examples even remotely similar to this case? They’re worse analogies than the one I originally criticized.

Explain how they’re applicable and i’ll happily explain why you’re wrong.

This analogy fails for two simple reasons. the photographer hired herself out as a wedding photographer, not a heterosexual only wedding photographer. in your analogy the restaurant is advertising itself as a vegan restaurant and thus need to serve vegan food to everyone who wants it. it also fails because the restaurant is not refusing service to non-vegans. it will sell vegan food to anyone who wants it. the photographer is refusing to sell the same service to people based on the sex of their partner.

Suppose I start a sandwich shop. Once you get inside you notice that every item on the menu has either:

1) Shellfish
2) A combination of meat and cheese, or
3) pork

The menu states clearly that all sandwiches served will meet these criteria. If you want a sandwich which does not contain shellfish, does not contain pork, and separates meat and dairy, you will have to go somewhere else. I further advertise a “Kosher clam and cheese bacon burger.”

I am not refusing to seat practicing Jews. I am, however, going out of my away to mock Jewish dietary restrictions and ensuring that nobody trying to even keep some semblance of a kosher diet will eat at my place.

Given that courts have thus far been barred from deciding what is kosher (and therefore by my reading, no false advertising claim can be made against my most unkosher “kosher” sandwich)…

Clearly the menu in this sandwich case would be expressive, and the clam and cheese bacon burger, as a parody of kosher rules, would be especially so. Would you argue that the business, since it is open to the public, is engaging in impermissible conduct which should be illegal?

Similarly if the “wedding” photographer agrees to show up but sends a timely policy to the couple saying “if you hire me, I won’t photograph same-sex couples in any sort of romantic way” then how is that different?

Brian K:
This analogy fails for two simple reasons. the photographer hired herself out as a wedding photographer,

It wasn’t a wedding – I believe all the relevant documents described it as a commitment ceremony. All the even remotely applicable dictionary entries for ‘wedding’ reference marriage, and under NM law, that element was missing.

One plays to one’s strengths and offers services one knows. The failure of a victim class to desire those services is not one’s problem.

Junk Science Skeptic: I’m surprised nobody has brought up the obvious side of the restaurant analogy, which highlights the difference of create vs. serve.Joe Smith’s restaurant can arguably be forced to serve anybody who comes in the door, but being a strictly vegan restaurant, a prospective customer can not force Joe to create/offer a steak dinner on his menu.

This analogy fails for two simple reasons. the photographer hired herself out as a wedding photographer, not a heterosexual only wedding photographer. in your analogy the restaurant is advertising itself as a vegan restaurant and thus need to serve vegan food to everyone who wants it. it also fails because the restaurant is not refusing service to non-vegans. it will sell vegan food to anyone who wants it. the photographer is refusing to sell the same service to people based on the sex of their partner.

this type of failed analogy has appeared quite often above.

Imagine, for instance, a recording studio who did not formally refuse to rent its space to black artists, but instead prohibited any hip-hop, soul, jazz, or R&B from being recorded there. If there was basically any evidence at all that the owner was a bigot, I suspect a court would have no problem finding discrimination in contracting in that situation.

On the other hand, if you made antisemitic statements, would that make your non-kosher sandwish shop guilty of discrimination against Jews?

The problem is this sort of thing doesn’t tend to hold if the facts give rise to an inference of discriminatory intent.

Imagine, for instance, a recording studio who did not formally refuse to rent its space to black artists, but instead prohibited any hip-hop, soul, jazz, or R&B from being recorded there. If there was basically any evidence at all that the owner was a bigot, I suspect a court would have no problem finding discrimination in contracting in that situation.

Plans for a deck, and building one, are normally not expressive activities. Even if it’s a creatively designed deck that is expressive, the message is probably just “this deck looks nice” and not approval of the things done there. In the unusual case that the deck was designed to send such a message (say, a deck with engraved images of the unacceptable activity), then it would indeed be forced speech and the builder should not have to design it.

It might be. Certainly aspects of the deck might be expressive. For example, the designer might choose to follow postmodern styles, or go for a colonial look. However, the difference is that they are limited to, well, producing the result.

I would have the same problem if the state said that deck designers MUST offer colonial deck designs to all customers. At that point, I think it is reaching deeply into expressive elements of the job.

However, the right to control one’s expression terminates when it is transferred to another party. So saying “the architect MUST design a deck along the following stylistic lines even though he says he doesn’t want to do so artistically” is different from saying “you must be willing to design a deck for a gay couple just as you would for a straight couple.” I.e. the deck is independent of the customer to a large extent.

However a photograph OF a customer is not independent in the same way. A photograph of a customer’s life event is likely to be both extremely expressive and personal, and it is tightly bound with the delivery of the service in a way that designing a deck is not.

I want to hire someone to build a deck, which I will then use for something considered religiously unacceptable to the builder.

Plans for a deck, and building one, are normally not expressive activities. Even if it’s a creatively designed deck that is expressive, the message is probably just “this deck looks nice” and not approval of the things done there. In the unusual case that the deck was designed to send such a message (say, a deck with engraved images of the unacceptable activity), then it would indeed be forced speech and the builder should not have to design it.

Whether he can be forced to build it if he didn’t design it is a tricky question. It’s tempting to say that following a plan is a mechanical activity, not speech, but consider some hypotheticals:

Someone writes a speech about how his God sends people to Hell, and you don’t believe that, and he tries to hire you to read the speech in public. Are you allowed to refuse, or is that religious discrimination? (Assume the audience knows that you don’t necessarily agree with it.)

A television station refuses to air a religious TV show. Are they discriminating, since they’re not being asked to speak, just to spread someone else’s speech?

I wouldn’t call either of these discrimination. Even if the speech was created by someone else, helping to spread it is still speech by you.

Actually, fashion design is a lot more expressive than photography. I think the wedding photographer should lose but if there were a case involving a homophobic fashion designer (probably a contradiction in terms, of course, but let’s just assume it :) ) who received an order to design some pro-gay marriage t-shirts, I might actually rule the other way (depending on how much creativity and expressiveness the order called for).

No, but lawyers are supposed to not discriminate based on protected classes. In other words, we can reject a litigant seeking to declare a constitutional right to gay marriage, but we aren’t supposed to reject a litigant who has a dispute with his landlord over the habitability of his apartment where we would otherwise take the case purely because the litigant is gay.

But again, the reason for this is because there is a pretty strong expressive content to legal representation and thus it would be a strong burden to force, say, a Christian conservative lawyer to argue for a right to gay marriage.

But a wedding photographer just takes pictures. He or she really isn’t expressing anything at all. Nobody’s going to look at a wedding photograph and say “aha! the photographer endorses gay marriage!” So the burden on free expression is minimal.

Skyler: I think Eugene is assuming that we have a free country here. I think that we still have the ideal of being a free country, but the reality has been far from it for quite some time.Freedom includes the freedom to be rude, racist and discriminatory. And it includes the right to choose whom to do business with.

Amen…

If we believe that as soon as we drop racial discrimination laws everything will go back to pre-60s, what’s the point of creating the laws in the first place?

Skyler: I think Eugene is assuming that we have a free country here. I think that we still have the ideal of being a free country, but the reality has been far from it for quite some time.Freedom includes the freedom to be rude, racist and discriminatory. And it includes the right to choose whom to do business with.

Amen…

If we believe that as soon as we drop racial discrimination laws everything will go back to pre-60s, what’s the point of creating the laws in the first place?

TGT: Does the fact that she is creating something automatically make her product speech?

Photographs are automatically speech. It’s not “the fact that she’s creating something;” not all creations are speech. (Clothing designers have to deal with knockoff copies because clothing is not “speech.”) But photos are definitely a form of speech protected by first amendment rights.

I’d assume your builder could be required to use your plans, or even plans he’s already created, but not be required to make new plans. Building according to *your* changes to plans might be required. (Extrapolating, there, from the concept that “speech” should not be compelled, rather than any specific precedent.)

I want to hire someone to build a deck, which I will then use for something considered religiously unacceptable to the builder. Can the builder refuse to build my deck on 1st amendment grounds in the following cases:

* I create the plans for the deck,
* the builder uses stock plans he already has created,
* the builder creates the plans for a simple deck, or
* the builder creates or uses existing plans, but I ask for some design to be inset on the deck

I don’t think anyone could say the first is speech. Is the second? The third? The fourth?

Does the builder get to decide whether or not its speech? The community? The government? Me?

Do we have to break the deck builder down, and say he’s legally required to contract to build me a deck, but can refuse to provide the service of creating plans for the deck?

Coming back to the example, could we say the wedding photographer has to take pictures of the wedding in a way that’s not speech? Does the fact that she is creating something automatically make her product speech?

If a musician who is a member of the Nation of Islam member decides that he wants to only perform at black weddings, or non-Jewish weddings, or non-interracial weddings, he should be entirely free to do so. Likewise if an Orthodox Jewish composer decided he didn’t want to compose music commissioned for a wedding between a Jew and a non-Jew.

I don’t think those are parallel examples.

*Performing* music is not an automatically-copyrighted act. *Composing* it is. Requiring someone to perform music is (legally) no different from requiring he cooks a meal, or that he sells items off a rack–while the performance can be copyrighted, copyright is owned by the *recorder*, not the performer. (And composer, if the music’s not in the public domain.) Requiring someone to *create* music is different.

Much as I hate anti-marriage bigotry, I’m with the photographer on this one: it shouldn’t be legal to force someone’s creative expression. Even something as trite as wedding photos.

When the cake decorator gets the copyright, fine, give her the same exemption, but till then, it seems a good proxy.

That seems better to me than the slope in the other direction, for commissioned speeches and artwork and so on.

Also, if there is no line between content (that it’s SSM as an activity being photographed) vs. identity of customer (that they’d willingly sell any pre-made books or supplies to gay customers), could the photog be forced to record nude photos? Hard-core porn? f you refuse to film my threesome, you’re discriminating against my polyamoric orientation?

Guy: I’m not sure one way or the other whether this is constitutionally protected expression, but these counterarguments are unfair.Steve isn’t saying “this expression doesn’t get First Amendment protection because it is worthless”, he’s saying that it isn’t an expression at all.

But his conclusion that it’s not expression is a self-fulfilling conclusion. Even flag burning wouldn’t be expression if the State compelled everyone to burn one flag a week. However, if the conduct was not compelled by the State, then choosing to engage in it would be expressive.

Steve is saying the State should prohibit people from making their choice of people to do business with expressive, even where they can do so and want to do so. This wedding photographer wanted to make her choice of who to do business with expressive, and wanted it to express her belief that she is a wedding photographer and this was not a wedding.

Steve: Because in the case of the wedding photographer, the message that the photographer personally approves of the ceremony is something you’re just making up out of nowhere.

It’s inherent in the pictures. If you don’t think that a photographer can convey a different message by taking different shots in different ways, then you don’t know anything about photography, even as a consumer of it.

No one who looks at my wedding pictures has any idea who took them.

Even if that’s true, how is that relevant? Are you claiming that the government can compel someone to express a particular viewpoint as long as most people don’t know that it happened? Can the government pass a law requiring you to keep a flag in your living room and salute it each morning?

Unfortunately, a British appeals court recently ruled to the contrary, holding that a Jewish school operated under Orthodox auspices engaged in discerimination by refusing to recognize a mother’s non-Orthodox conversion. The court ruled that it was ethnic discrimination for the school to consider the woman’s son non-Jewish. British courts as far back as Coke have demonstrated hostility toward exercise of the Jewish religion.

This is getting off-topic, but I think a major contributing factor in the Israeli-Palestinian mess is the legacy of (and even continuing) hostility towards practising Jews in Europe. Antisemitism might look dead and certainly it is nothing like it used to be, but it is there nonetheless. I almost think the point of the Balfour Declaration was to get as many Jews to leave Britain as possible…..

One other big problem that we see generally in Europe though is that I think this problem is actually made worse by the myriad of hate speech laws that exist in many countries there. I think this ensures that racism of this sort, where presented to the public, is done so in a very sugar-coated way. I think this is one reason (separation of church and state being another) why the despite the fact that more hate speech and writings come out of the US than the EU, why we have fewer issues like that braindead British ruling. At least we can see the hate for what it is.

We seem to be on the same side of this argument regarding artistic expression and discrimination, and I wonder if this is part of a much larger, more complex picture.

Steve: I think it’s just a way to privilege certain professions over others.I mean, as a lawyer, naturally I feel it’s my God-given right to say “sorry, I don’t feel like taking that case” for any reason I choose, but at the end of the day I’m not sure why I’m more special than any member of any other occupation.I can refuse to advocate for black clients, but the restaurant across the street has to serve everyone?Not really buying it.

Well, I agree that the restaurant shouldn’t have to, but the difference between the two situations is not that “professions” are privileged, but that speech is privileged.

Incidentally, note that if you’re a bigot who hates black people, you may have an ethical obligation not to represent them; if you don’t feel you can be a zealous advocate, you can’t take their case.

Guy: I’m not sure one way or the other whether this is constitutionally protected expression, but these counterarguments are unfair. Steve isn’t saying “this expression doesn’t get First Amendment protection because it is worthless”, he’s saying that it isn’t an expression at all.

But Guy, Steve is saying that “it isn’t an expression at all” because he doesn’t value the underlying expression, i.e., “it is worthless” to him. He can’t fathom someone actually and honestly feeling that way about the photographing of a wedding, therefore, it is not “expressive conduct” and unprotected. He feels likewise about the “expressive conduct” of refusing to feed black people with white people at his restaurant. But, if he saw someone burning a flag, he would probably support First Amendment protection, wouldn’t he? That is because he can contemplate the underlying expression and attribute to it value worth protecting. Steve’s position is an example of the problem with making the protections of the First Amendment dependent upon the value judgments of others.

readery: So if a person has the right to limit clients to members of their religion, they necessarily have the right to define membership the way the religion does. The State can’t establish its own conception of how religious membership ought to be defined and impose that on the religion.

Unfortunately, a British appeals court recently ruled to the contrary, holding that a Jewish school operated under Orthodox auspices engaged in discerimination by refusing to recognize a mother’s non-Orthodox conversion. The court ruled that it was ethnic discrimination for the school to consider the woman’s son non-Jewish. British courts as far back as Coke have demonstrated hostility toward exercise of the Jewish religion.

SuperSkeptic: Steve,
“One man’s vulgarity is another’s lyric.”The fact that our “expressive conduct” “means nothing at all” to you is precisely the point.

David Schwartz:
I see very little value in having freedom of expression if others get to decide which expressions are important enough to be protected and which are not.

I’m not sure one way or the other whether this is constitutionally protected expression, but these counterarguments are unfair. Steve isn’t saying “this expression doesn’t get First Amendment protection because it is worthless”, he’s saying that it isn’t an expression at all.

Steve2: [T]he Court seemed to be ignoring the corollary to that old quote “Not every undesirable law is unconstitutional”: not every desirable law is constitutional.

Hate to nitpick, but that’s not a corollary. “There exists an x such that -Px and Qx” does not logically imply “There exists an x such that Px and -Qx”, nor does your premise in this particular case even indirectly seem to imply your conclusion; I think, a priori, one could suspect that desirable laws are a proper subset of constitutional laws even if one did not include “constitutional” as an explicit part of the definition of “desirable”.

I’m not saying that every desirable law is constitutional (it depends on how you define those terms), I’m just saying one of my pet peeves is that no one seems to know what a “corollary” is.

But part of the phenomenon known as “having a job” involves sometimes doing things one finds personally distasteful.

Useful life lesson. However, most learn that lesson on their on time, at their own pace — why exactly do you think it is up to the government to decide the appropriate maturity level one must show at his or her employment? A liberal “activist” can be as idealistic/quixotic in his choice of profession as he wants to be, right?

I think that Congress would have been on very safe ground making laws that said the government could not discriminate on the basis of race, etc. When they made laws that prevent everyone from discriminating, that’s a little too thought-control-ish to me.

Racism is boorish, rude, unpleasant, and should be shunned… but I think it’s constitutionally-protected. (Regardless of how SCOTUS has ruled.)

theobromophile: To add another issue into the wedding photography business: last time I checked, wedding photographers go to the wedding in question. They sit in the church, listen to the ceremony, watch the exchange of vows, and are at the reception. That person shouldn’t be forced to involuntarily be witness to a marriage ceremony that she finds to be immoral, no more than someone should have to sit through (and, by her presence, implicitly approve of) a marriage between a middle-aged man and a child bride.

I’m not sure that’s much of an additional consideration. I was just at a wedding yesterday and the thought of whether or not the wedding photographer personally approved of the wedding was simply not on my mind. I doubt it was on the minds of any of the other guests either. Unless the photographer is a personal friend of the groom or bride, the common sense presumption is that he or she would rather be at home watching TV or doing something else rather than witnessing some strangers’ wedding if it wasn’t for the money involved. If a real-life wedding photographer were to ever raise this objection, I’m fairly confident he or she would be the only person at the ceremony to actually think this.

Honestly, I doubt anybody really cares whether or not the photographer “approves” of the wedding or not. Granted, I’m inclined to agree with Volokh that photographers or other artists who work on contract ought to be able to discriminate under the First Amendment. But part of the phenomenon known as “having a job” involves sometimes doing things one finds personally distasteful.

To add another issue into the wedding photography business: last time I checked, wedding photographers go to the wedding in question. They sit in the church, listen to the ceremony, watch the exchange of vows, and are at the reception. That person shouldn’t be forced to involuntarily be witness to a marriage ceremony that she finds to be immoral, no more than someone should have to sit through (and, by her presence, implicitly approve of) a marriage between a middle-aged man and a child bride.

To continue this analogy: how many lawyers here would be comfortable with the government (not their bosses, not their other law partners) requiring them to violate their consciences in legal representation in the name of non-discrimination? Should a pro-choice advocate be forced to represent NARAL and the NRLC on an equal basis?

Actually, in our professional responsibility class in law school this was a situation we had to learn about. Lawyer (in Texas, I believe) was directed to defend a client and the issue involved an abortion. Lawyer decided for religious reasons that he did not want to argue in favor of abortion in court and asked to withdraw. Court ruled, backed by ethics panel of the bar association, that the lawyer was not allowed to withdraw and had to argue in favor of abortion for his client. I can’t find the cite for this, maybe someone else knows of it.