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Legal Requirements That You Write Things or Create Photographs:

Let me mention again the hypothetical I posed in my earlier post, and ask for the reaction of those who think the New Mexico Human Rights Commission's decision is constitutional. Maybe I'm mistaken, but my sense is that there weren't many responses to it, and I'd love to see more, again especially from people who think the Commission's decision doesn't violate the First Amendment.

Say you're a freelance writer, who holds himself out as a business offering to perform a service. Someone tries to hire you to write materials -- press releases, Web site materials, and the like -- for his same-sex marriage planning company, or his Scientology book distribution company, or whatever else.

May the government force you, on pain of damages liability, to write those materials, even if you would prefer not to because of the sexual orientation, religion, or whatever else to which the materials would be related? Or do you have a First Amendment right to choose which words you write and which you decline to write? If you do have such a right, why shouldn't Elaine Huguenin have the same right as a photographer?

One response I saw a few people make is that wedding photography isn't really artistic, the way that creative photography is. Well, I suppose that some will say that writing press releases or Web pages on commission isn't really literary or political, the way that writing fiction or opinion columns is; that's why I chose this particular example. Yet I take it that even being compelled to write bland, relatively generic copy about the virtues of some same-sex marriage planning company would be seen as a speech compulsion. Why wouldn't being compelled to take bland, relatively generic photographs likewise qualify (especially since taking and selecting good photos does involve at least some artistic decisionmaking)?

Another response was that there's no First Amendment issue with imposing nondiscrimination obligations on lemonade sellers, chefs, florists, and the like. But I take it we would see such an issue with imposing such obligations on writers, no? Why isn't a photographer far closer to a writer for First Amendment purposes, given that both photography and text are traditionally recognized as First-Amendment-protected media (because of their capacity to convey facts and ideas)?

One response pointed out that lawyers, who speak for a living, are required not to discriminate in choice of clients. But the First Amendment rights of lawyers practicing law are considerably constrained, see, e.g., Gentile v. State Bar of Nevada, and especially when it comes to choice of clients; for instance, courts generally still have the power to appoint lawyers to represent indigent criminal defendants, even if the lawyer objects on ideological grounds. Whatever the proper rule for lawyers should ultimately be, I don't think that the constitutionality of certain speech compulsions for lawyers -- officers of the court who have been therefore treated as something distantly kin to government employees -- tells us much about similar speech compulsions imposed on photographers, writers, painters, musicians, and others.

So tell me, please, if you think the Commission's decision is constitutional: Could the freelance writer be compelled to write copy for the same-sex marriage planning company, or the Scientology book distribution company? If the answer is "no," then what exactly is the difference between the writer and the photographer?

Brett Bellmore:
You'd think there'd be a 13th amendment issue here. I don't care whether it's artistic or not, even ditch diggers should have a choice of whether or not to take a job.
4.9.2008 8:53pm
Richard A. (mail):
I think it's clearly unconstitutional, but then I think all so-called positive "civil rights" - as opposed to the negative rights espoused by the founders as restrictions on government - are unconstitutional.
Barry Goldwater warned us about this sort of thing back in 1964.
But did we listen? No. And now look at the mess we're in.
4.9.2008 9:02pm
Ex-Fed (mail) (www):
Prof. Volokh, you point out that there is a line to be drawn somewhere. But how happy should we be about courts drawing that line? I was unhappy enough when the Ninth Circuit decided what is or is not properly part of a game of golf. How unhappy am I going to be when they are deciding what is or is not an artistic endeavor, or what is or is not a core part of an artistic endeavor? The saying is that a joke, like a frog, is not improved by taking it apart to see what makes it work. The same could be said about art.
4.9.2008 9:18pm
Alan Gunn (mail):
I don't have a strong opinion on the constitutional issue. But it does seem possible to distinguish wedding photography from many kinds of writing. We have a sort of spectrum here: cooking, flower arranging, and cabinetmaking are artistic, but I wouldn't think that exemptions for florists, restaurants, or cabinetmakers would fly. Maybe it's just that I don't appreciate the artistic aspects of wedding photography, but it seems to me to be closer to cooking and flower-arranging than most writing.

That said, is it even clear that all writing is exempt? How about a newspaper that refused to print death notices for members of a protected class? It seems to me that your examples of writers who would get a pass on First Amendment grounds involve cases in which no sensible person would even try to enforce the antidiscrimination law anyway (except to make a point), because of the difficulty of enforcing standards of quality.
4.9.2008 9:20pm
deez:
Ex-Fed - Who else is going to decide what is or is not an artistic endeavor for the purposes of the law?

"It is emphatically the province and the duty of the judicial department to say what the law is." - Marbury v. Madison.
4.9.2008 9:21pm
Pensans:
I thought that all had agreed now that when you make a public offer to contract or hold property you lose all rights to do anything that the government doesn't like (as long as these activities fall within some insanely easy standard of commerce).

If we cannot deny government the right to control personality in use of property, employment and sales, it is impossible to hold on to these minor rights with respect to writing. Why should I have more freedom to control what I write than whom I live with or work with or sell to? I hope the writing class feels the same lash as everyone else. The loss of free speech affects almost everyone far less than the loss of freedom in association, property and contract.

Indeed, what would be a better tactic for securing our liberties than making sure the treasonous clerks are exposed to the same standards as the rest of America? If we cannot decide basic issues about how to express our personality in our work and communities, let them suffer the same way. If I can't exercise religious freedom in my workplace, by hiring those who agree with my faith and associating them in our labor, let them be denied the right to write communist literary criticism unless the people agree that supports interstate commerce.
4.9.2008 9:26pm
steven lubet (mail):
Could a printing company refuse to print the invitations for a same-sex ceremony (or inter-racial wedding), claiming first amendment (freedom of the press) protection?
4.9.2008 9:26pm
~Paules (mail):
I AM a New Mexican. This s*** ain't gonna fly in my state. Volokh, good buddy, here's an email for you: talkradiojiim@aol.com. Let's light this story with a 50,000 watt blowtorch. You didn't fail, lad. It just takes a little time to work its way through the system. If you can get Jim at KKOB Albuquerque on your side, your story is launched, laddie. DO IT! NOW! Chain reactions sometimes take time. Critical mass builds in time. Then it's unstoppable. Power to the bloggers!
4.9.2008 9:29pm
Snitty:
Ex-Fed, if a court said that an artistic endeavor for these purposes is anything other then something that tracks directly with copyright law then I would be shocked. Which is to say, anything that is more then an idea or merger of idea and expression. You can't mess with the first amendment by saying that some things are more expressive then others, or have more content then others. Courts have always drawn a line that content is content and expression is expression.
4.9.2008 9:29pm
Loophole1998 (mail):
Nobody is stopping the photographer from expressing himself. He just has to do so in his free time. Or stop selling his services as a photographer. Or move out of New Mexico.
4.9.2008 9:30pm
~Paules (mail):
Sorry about the link. One "i" in Jim. Talkradiojim@aol.com.
4.9.2008 9:32pm
q:

We have a sort of spectrum here: cooking, flower arranging, and cabinetmaking are artistic, but I wouldn't think that exemptions for florists, restaurants, or cabinetmakers would fly.

I would, if such florists, resturants and cabinetmakers were forced to express something rather than forced to serve their expressions to someone.
4.9.2008 9:33pm
q:

Nobody is stopping the photographer from expressing himself. He just has to do so in his free time. Or stop selling his services as a photographer. Or move out of New Mexico.

This doesn't address Eugene's argument at all. Nobody is stopping the freelance writer from expressing himself, etc. I think it's clear from an intuitive standpoint that forcing someone to express something is a violation of their freedom of expression, even if at any other time they are not prohibited from making any particular expression. Should the government really be allowed to force its citizens to express a certain viewpoint?
4.9.2008 9:36pm
ClosetLibertarian (mail):
Does not sound constitutional to me, but doesn't strike me as much worse than requiring Marriot to rent rooms to homosexuals. What would stop the photogopher or writer from just doing a bad job? Is the court going to be in the business of deciding if it is the artists best work to avoid a discrimination suit?

Also, at least in Virginia "The lawyer also may withdraw where the client insists on a repugnant or imprudent objective." Not sure how this would square with a court appointment.
4.9.2008 9:39pm
William Oliver (mail) (www):
I am not a lawyer, but I see this in the same light as the decision some years ago by the Federal Elections people to fine Steve Forbes for writing editorials in Forbes Magazine. Since Forbes got paid for writing in Forbes, and since his editorials could be construed to be supportive of his candidacy, they constituted illegal campaign support.

The problem with both of these is that *anything* can be viewed in terms of commerce and money. In fact, if I'm not mistaken, there are distinct schools of legal thinking that reduce everything to a form of commerce and put a monetary value on all actions.

If merely being reduceable to some form of commerce, then, means that constitutional liberties can be abridged, then the fact that anything can be so construed means there are essentially no protections for liberty. I don't *know* if it is constitutional, but I *hope* it is not -- I *hope* that were this to go to SCOTUS they would err on the side of individual liberty if they err at all.
4.9.2008 9:40pm
Henry (mail):
How about relying on Rumsfeld v. FAIR, which held that the government could compel law schools that took federal funds to allow military recruiters on campus, even though the Dale case held that the government could not compel a private group to allow gays to join its parade? The difference the Court saw was that people would generally not think that the law schools were endorsing the military recruiters, whereas they would assume that the group sponsoring the parade endorsed the gays. A publicity agent or wedding photographer is not generally viewed as endorsing the views of those whom he publicizes or photographs.
4.9.2008 9:43pm
merevaudevillian:
Anything in Redgrave v. Boston Symphony Orchestra that could be useful?
4.9.2008 9:44pm
M. Lederman (mail):
Eugene: The lawyer example gives some indication of the difficult problem here. It's not enough to say that "the First Amendment rights of lawyers practicing law are considerably constrained." The question is why? -- and what can it tell us about analogous situations? I don't think it has much to do with lawyers being quasi-government officials. Common carriers can't discriminate. (Intriguing question: Why couldn't book stores -- especially online bookstores -- be treated as common carriers?) Neither can lawyers, or doctors in the context of giving medical advice. It's a case of regulating the speech of those in "the professions" -- something that is very commonly done without any First Amendment problem. (Daniel Halberstam has what is probably he best treatment.)

The important point is not that the speech is done for money, but instead that the "speaker" is a fiduciary or agent of someone else, doing their bidding, even though the speech is obviously in important respects determined by the professional actor. (Could an architect refuse to draw plans for blacks?) The fact that the speech is not "independent" but is instead embedded in a professional relationship (with a principal and/or beneficiary), affects the 1A question.

Another way of thinking about it: These sorts of regulations are limitations on *the freedom of formation of contracts* between client and professional -- and as you've commonly written, when we're in the realm of contract law, the First Amendment has much less bite. (The discrimination rule here, of course, does not single out speech activities for disfavored treatment -- it's a generally applicable law that is indifferent as to whether the contract involves speech.)

This is not to say that the First Amendment answers are easy when it comes to professional speech on behalf of another -- there's not much doctrine -- but merely that the analysis is quite different from the case in which the photographer is working for herself and is unlimited in what she can shoot.
4.9.2008 9:58pm
kimsch (mail) (www):
I am a member of three "protected" classes and I think they are all hooey. There are so many "protected" groups that I wonder if anyone (other than a healthy, white, Christian or Jewish male) is not "protected".

That said, it bothers me when a business person can't choose who to do business with, for whatever reason. Elaine should have been able to choose who to photograph. That she's been sued and fined for not doing so is just awful.

When I got married ten years ago, I went to a florist to get the flowers. My wedding date was the day before Mothers' Day and I went to order the flowers sometime in March for the May wedding date. They said they wouldn't do our wedding because it was the day before Mothers' day. We found another florist and decided that it was the first florist's loss. We felt that they could have accommodated us as we were ordering early, but oh well. We didn't sue. A few years later they were out of business, perhaps because they turned down business, but it was their choice. And it should be their choice.

They said it was because our wedding was the day before Mothers' day, but maybe they were discriminating against me as a disabled person. I don't know, and frankly, I don't care. I ended up with lovely flowers from another florist and the first one didn't get my business or any referrals from me.
4.9.2008 9:58pm
Adam K:

If you can get Jim at KKOB Albuquerque on your side, your story is launched, laddie.


And after that he could start an internet petition!

But seriously, this law is a tremendous pile of crap. In can understand state anti-discrimination laws being applied to common carriers, employers, restaurants, hotels, etc., but this individual's business does not come close to being comparable to those.
4.9.2008 9:59pm
Crackmonkeyjr (www):
I don't see a huge distinction between the photographer and the writer, but I also don't see how this is a constitutional problem. The artist entered into a contract to do something, they are now refusing to do so, they have to pay damages. It doesn't matter if that thing was building a house, baking a cake or writing a campaign speech for Bush.
4.9.2008 10:17pm
Crackmonkeyjr (www):
Please disregard my previous comment, I misread the post.
4.9.2008 10:18pm
Roscoe B. Means:
Debating what is and is not artistic is pointless. Art is not protected because of its artistic qualities or the skill required for its creation. It's protected because it expresses messages or ideas. Images that express powerful messages are often utterly lacking in artistic merit and are products of happenstance rather than skill.

So far, I don't see any answer to Prof. Volokh's challenge. As I see it, the only distinction between the writer and the photographer is that more people find it easier to recognize that they're getting a message from the writer. Images are often more effective at conveying a message for precisely that reason. Worth a thousand words, remember? Does anyone doubt that those photoshopped images supplied to the wire services by Hamas stringers were/are conveying messages?
4.9.2008 10:19pm
Jerald (mail):
I'm sorry, but I apparently just don't have the same ability to read a business transaction as a speech act as others here. I don't see the issue as forcing an artist to take a picture they don't want to, or of licentious or illegal acts. This is simply requiring a business to not discriminate along statutorily-protected lines.

Forgive me for lacking a Jay Sekulow-like ability to find a First Amendment cause-celebre in any anti-discrimination statute, but this looks more analogous to requiring hotels to rent patrons any available room they request. If this photographer had refused to photograph the wedding of a black couple, would we even be discussing this?
4.9.2008 10:23pm
c.j. ammenheuser:
I am a designer. I am not a lawyer but I identify with some of the issues of this case.
As a libertarian I carefully watch these kinds of debates, hoping this country remembers we are each an individual and we each have a freedom to think as an individual.

This is how it works for me: I design, sell and then create for other businesses, individuals who are not businesses, and my friends. As a 'business,' I design for another business, and must abide any and all regulations applicable to the business, we sign a contract and agree to the terms. Some of those regulations might not be applicable when I design for a friend because there is no contract; but I must always keep building codes, and health codes, etc. Also, my studio, from where I work and create the product, must meet regulations as well and be properly insured.

More than that- I actually make my living combining business and creativity. I can make 1,000 tea sets according to my contract- that's business. However, if I become inspired and I create something unique and truly wonderful, I am free to charge what the market will bear, because the talent of it went beyond the contract- me teapot becomes art which can't be created on demand and can't be duplicated 999 more times. Trust me on that- art can not be created on demand- you need inspiration, otherwise, you're just cranking it out for the buck. That is why art is referred to in some cases as genius.
To compare-
To make lemonade, a vendor must meet all applicable standards, but there is no requirement for intellect. The vendor cranks out lemonade. When I design a tea set and plan to make a 1,000 of the same item over and over I'm just cranking it out. But to make 1,000 one of a kind art tea sets- hoping genius will strike- that requires the freedom to be creative; this creativity is my intellectual property, and mine alone; my freedom to think and speak. This is the same as photographing a wedding which is a very special occasion.

To create a series of original and not mass produced art objects, whether its teapots or photos, requires creativity inspiration,and intellectual property (my mind and experience) which the government is incapable of regulating or ordering.
4.9.2008 10:27pm
Wayne Jarvis:

Could an architect refuse to draw plans for blacks?


For the love of Vishnu, people! How many lame variants of this are we going to hear? The answer is: that is not $#&% a regulation of the content of speech.

If I am an ice-sculptor and I hold myself out as a business can I refuse to engage in business with a gay couple? Probably not, in New Mexico. Does that mean the state can force me to sculpt "two dudes kissing." No, that's different.

Can anyone identify the difference? Hint: the second hypothetical is a regulation on CONTENT.
4.9.2008 10:37pm
ERH:
Yes a freelance writer could be forced to write something. Why?

Of course the 1st Amendment protects a writers freedom to write or not to write, but when the writer (or speaker or artist) enters the realm of commerce by becoming a freelancer they forfeit some of those rights. The relationship between freelancers is, of course, more complicated than a traditional employer/employee or buyer/seller relationship. But the key remains that the freelancer becomes for all intents and purposes a production facility, the fact that what he produces is the written word is immaterial.


I believe that allowing certain groups to ignore anti-discrimination laws based on the fact that there work product is a kind traditionally protected by the first amendment would mark a tremendous eroding of the progress we've made against discrimination in the commercial sphere. For this reason I tend to oppose legislation that allows people engaged in commerce to refuse to serve certain individuals or products based on religious grounds.
4.9.2008 10:46pm
frankcross (mail):
Well, I'll say hypothetically yes they could be compelled to do so, but it's a silly hypothetical -- I don't think any group would want someone who hated them to be writing the text of their copy.

But how about EV answering the black hypothetical. Could a photographer refuse all business from blacks on expressive grounds (not probable but somewhat more likely than Scientology trying to hire an anti-Scientologist to write its copy). And if a photographer could so refuse, how about A&F putting out a "whites only" ad for participants in their advertising copy?
4.9.2008 10:46pm
RBG (mail):
In answer to the question re whether a printing company could decline to print invitations to a same-sex wedding ceremony: If I recall correctly, Eugene posted about just such a case back in 2003. That case (in the Seattle area)settled, with the ACLU extracting a settlement from the poor woman that required her not only to promise not to discriminate against gays in the future but also to express her recognition that homosexuality was a valid lifestyle (or something along those lines). I found the whole proceeding offensive to my libertarian sensibilities, but that second element of the settlement agreement was the most repulsive demand I had ever seen come out of a so-called civil rights organization. I had considered joining the ACLU that year, as various overreachings by the Administration were coming to light, but I vowed then never to contribute in any way to their support, whether financially or through pro bono activity.
4.9.2008 10:49pm
Toby:
There's a spectrum, based upon the variability of theservice.

A MacDonalds is a commodity service. Refusing to serve a [protected being] is indefensible. In between is a range of catering at my restuarant, catering at your home, you buy the meal, I cook in college... I might cook for friends in my home - I can refuse whoever I want. In between are al lkinds of variating in the cooking service.

In photography, there are the machines you sit in at the arcade, 4 shots per sheet. Those are common and cannot be discrimated. There is the intimate film, whther my private porno or the birth of my first born. sertainly any photographer can skip the latter two if he desires.

Even in commercial speech, there is a spectrum from business cards and sign painters to professional endorsements...surely even an actor can refuse an endoresment of a product he does not like.

The question, to me, is where are wedding photos on the spectrum. Even though I find most wedding photos of people I do not know boring, I have yet to meet anyone who gushed that they wanted a generic photographer. Maybe a Las Vegas Wedding Chapel photographer is offering a generic service. Most others advertise a "personal touch", and memories that will be important to the couple. This, I think, pushes it out of the generic "service" realm.
4.9.2008 10:52pm
CiarandDenlane (mail):
I tend to agree with Mr. Lederman that the wedding photographer can be regulated like a professional or common carrier here, but not without a reservation.

My doctor, I would want and expect to be dispassionate, and I really wouldn't much care that he considers his suturing to be a work of art. But it occurs to me that perhaps -- "perhaps," I've never been a wedding photographer -- that to be a good wedding photographer, one must to partake to some degree in the emotions of the principals, for example, to fall at least a little bit oneself in love with the bride in order to take a picture of the woman as the groom sees her that day. If that is necessary and the photographer can't do that for a given couple, it's their loss. If he objects to a couple and nevertheless compels himself to share emotions as (under my "perhaps" supposition still) he must to do his job right, then maybe he has been forced unfairly (unconstitutionally?) to express himself artistically.

On the other hand, maybe it's just a matter of knowing the angles, bouncing the lights, managing not to run out of film, and figuring out the digital equivalent of an f-stop, and, really, why should that kind of photographer be any different than the photo machine at the shopping strip?
4.9.2008 10:53pm
CiarandDenlane (mail):

Yes a freelance writer could be forced to write something. Why?

Of course the 1st Amendment protects a writers freedom to write or not to write, but when the writer (or speaker or artist) enters the realm of commerce by becoming a freelancer they forfeit some of those rights. The relationship between freelancers is, of course, more complicated than a traditional employer/employee or buyer/seller relationship. But the key remains that the freelancer becomes for all intents and purposes a production facility, the fact that what he produces is the written word is immaterial.


Not exactly what "free" lance conveys to me. Does this mean that if ever I write one piece of prose for pay, I am now a "production facility" who must write for all comers? I would think that of all people, one who freelances and writes on only an occasional or intermittent basis when the mood, the time, the subject, the muse, and the pay are right would not qualify as a "production facility" that can be forced to turn out however many words are needed on demand.

Perhaps ERH means "freelance" in a different sense, and maybe even a more common one than the (back-formation derived?) one I've given, i.e., a more prolific per-piece writer. But even so, it's hard to see why such a writer becomes a pen for hire. If, say, Christopher Hitchens writes for Slate on a per piece ad hoc basis rather than a salary -- for all I know he does -- would the volume of his output mean that he is a production facility who can be required, say, to write a few sermons for the Pope if the Church matches Slate's per piece rate?
4.9.2008 11:09pm
Brian K (mail):
RBG,

"the business owner acknowledged that all persons should be treated with respect and dignity, regardless of sexual orientation," (link)

i don't see how this is objectionable or how it is equivalent to saying homosexuality is a valid lifestyle (or something like that).
4.9.2008 11:10pm
RBG (mail):
Brian,

Thanks for finding the link, and excuse my misremembering what exactly the ACLU required: It has been nearly five years, after all.

But it doesn't strike you as offensive that a purported civil rights organization thinks it appropriate to require a woman to enter a legal sentiment that forces her not only to change her behavior but to make what is essentially a confession of belief? Even granting that the statement itself conveys a laudable sentiment, isn't there something vaguely totalitarian about that? Isn't it a pretty fundamental civil right to believe whatever one wants to believe, no matter how repulsive those beliefs may be to others? And isn't a purported civil rights organization that can't distinguish between the appropriateness of enforcing rules of behavior and enforcing proper thoughts quite simply stomach-turning? Or do you think intrusion into the inner life of citizens is justified if the stakes are high enough?
4.9.2008 11:19pm
wb (mail):
I think that the issue that Eugene raises about the comparison between writing and photography is precisely on point. The issue as I understand it from the posts is that Elaine's refused to provide a specified content in the photographs in analogy to the writer refusing to produce content that s/he finds objectionable to produce.

I suspect there is a legal fine point about just what Elaine refused. If she refused to make any photographs of the couple then I would claim that she is illegally discriminating in commerce. If she refuse to photograph the ceremony and linked festivities, it seems she is exercising a decision about what expressive content she is willing to produce.

In short is the issue one of what content she must produce for any potential customer, or does she have to produce any content a customer desires for any customer who will pay. Words or pictures, the question with regard to freedom of expression seems the same.
4.9.2008 11:20pm
RBG (mail):
Sorry, make that "legal settlement." Though there's something strangely appropriate about the word "sentiment" in this context.
4.9.2008 11:20pm
Thoughtful (mail):
Interesting legal discussion.

But the thing that amazes me is that any couple, straight or gay, would WANT to have someone take pictures at their wedding who has already indicated they don't want to. Did they plan on restaging the wedding if the "forced" pictures were not what they desired?
4.9.2008 11:23pm
Brian K (mail):
RBG,

But it doesn't strike you as offensive that a purported civil rights organization thinks it appropriate to require a woman to enter a legal sentiment that forces her not only to change her behavior but to make what is essentially a confession of belief?
No. the ACLU didn't require to enter a legal settlement. i'm not a lawyer, but it is not my understanding that anyone can force you into a settlement. she always had the option of seeing the suit to the end through the courts. I think you'll still confusing a pledge to treat people with respect and dignity with a confirmation that homosexuality is valid or good. i disagree with you, but i'm treating you respectfully, no?


Isn't it a pretty fundamental civil right to believe whatever one wants to believe, no matter how repulsive those beliefs may be to others? And isn't a purported civil rights organization that can't distinguish between the appropriateness of enforcing rules of behavior and enforcing proper thoughts quite simply stomach-turning? Or do you think intrusion into the inner life of citizens is justified if the stakes are high enough?
i don't see any evidence that the aclu is forcing her to not believe that homosexuality is wrong. treating people with dignity and respect is a restriction on behavior not on thought...i don't see how most of your post applies to this case.
4.9.2008 11:48pm
Clayton E. Cramer (mail) (www):

But the thing that amazes me is that any couple, straight or gay, would WANT to have someone take pictures at their wedding who has already indicated they don't want to. Did they plan on restaging the wedding if the "forced" pictures were not what they desired?
No, the objective was to punish anyone that didn't believe correctly.


No. the ACLU didn't require to enter a legal settlement. i'm not a lawyer, but it is not my understanding that anyone can force you into a settlement. she always had the option of seeing the suit to the end through the courts.
Expecting courts in a place as liberal as Seattle to respect freedom of conscience (at least when it involves homosexuality) is absurd. You might as well expect justice for black man accused of rape in 1948 Alabama. It could happen--but I wouldn't hold your breath.
4.10.2008 12:03am
BD:
I'm not sure if the judgment against Elane is in error or not, but I certainly hope it is.

It seems to me that the content of the photography is the important point here. Another analogy occurs to me: Say I'm a custom furniture designer/builder, and I advertise my services openly. What if an organization approaches me to order a set of chairs, say, that have a symbol on their backs which offends me. It doesn't matter what the symbol is -- it could be a cross, a hammer and sickle, a swastika -- you name it. I should have the right to refuse their business, no?
4.10.2008 12:06am
Lay Man Dan:
Isn't this whole thing a non issue when instead of saying "I don't believe in same sex unions" the photographer say "I already have a job booked for that date"?
4.10.2008 12:10am
RBG (mail):
Brian,

I certainly understand the difference between a judicial order and a legal settlement - though there's a fine line between merely threatening someone with the continued and significant expense of litigation and requiring her to consent to something - but my point is simply that this condition seems to me antithetical to an attitude of respect to our fundamental freedoms, chief of which used to be the freedom of conscience. Respect for that freedom is what separates a legitimate state from an illegitimate one: Punishment for breaking the law is one thing; punishment (or an exacerbation of punishment) for believing that the law is immoral or unjust or illegitimate is the mark of a totalitarian state. A genuine civil liberties organization would recognize this distinction.

I'm not saying that the ACLU's extraction of that concession is the same as imposing criminal punishment on the woman; the purpose of the analogy is to point out how the mindset of the ACLU staff attorneys that led to that settlement is analogous to the mindset that drives totalitarianism and to argue that the attitude of the staff attorneys is inimical to a true respect for civil liberties.

I would also note that your reading of the agreement is incorrect: It does not require her to treat gays with respect; it requires her to acknowledge that gays should be treated with respect. Those are two quite different matters. Granted, even if the ACLU had required only what you say it does, I would find its demands repulsive: Isn't it enough that they got the woman to acknowledge that she'd broken the law and to promise that she would not violate it in the future? What business is it of a civil rights organization whether she complies with the law out of compulsion or out of a genuine belief that the law serves a noble purpose? Is it the business of the ACLU (or of a legal settlement) to inquire into the private beliefs of an individual? Since when did one's right to believe that people who engage in certain activities are not worthy of one's respect - or even one's right to treat people in one's private non-commercial life with disrespect - become alienable, particularly at the demands of a purported civil rights organization?

And no, confusion about the nature of the pledge is not the source of my ire: My objection is not to the content of the belief they required her to accept; it's that they had the gall to require that she endorse any moral judgment whatsoever, no matter how laudable.
4.10.2008 12:15am
kimsch (mail) (www):
Lay Man Dan,

The photographer could have said that, like the florist told me that they didn't want to do a wedding the day before Mothers' day. When one is ready to cry discrimination, when one is actively looking for a reason to cry discrimination, one will cry discrimination whatever the real reason was.

The florist could have decided that they didn't want my business because I'm disabled. I wasn't looking for a reason to cry discrimination though. I guess I could have sued and ended up paying lawyers and still not getting flowers from that florist, but I just found another florist that was willing to take my business.
4.10.2008 12:21am
Lior:
I think the point is that when you write press releases, the expression is clearly not yours -- it's your employers. My website reflects my scientific and personal opinions, not my university employers. On the other hand, the university public relations office's website reflects the university's opinions and not the opinions of the individual writers who work for the university. Their first amendment rights are clearly not violated by being forced to write the university's opinions even when they disagree with them, because they are not seen are personally speaking for the university.

Photography is a bit more difficult, because wedding photographs are also seen as creative work of the photographers, and not simply detached depictions of events (if that was the only aspect of the deal, there would be no constitutional issue for me).

On the policy side, I think any business should be free to refuse custom to anyone. But it's not unconstitutional for a state to make a different law.
4.10.2008 12:44am
bobolinq (mail):
First, there's an easy distinction between writing and photography: Writing really does say things ("Gay people are great!") and photography does so only very indirectly ("Boy those gay people look pretty in that light" could lead to the inference "Gay people are great!"). So I'm pretty comfortable saying there's less "speech" in photography than there is in speech. This may not square entirely with First Amendment doctrine. But I suspect that photographs get various kinds of special treatment (e.g., autopsy photographs, which -- if I recall correctly -- courts can embargo, though they could probably not embargo written descriptions of corpses).

That said, I will take a strong position that certain types of speech and expression can be compelled. Intuitively, I think that the line should be drawn at the extent to which the speech is likely to be attributed to the author. So anonymous copyeditors can, I think, be required to adhere to nondiscrimination laws. They "speak" by correcting, and sometimes rewriting, someone else's text. But the message of the text belongs to the writer, not the copyeditor, and the copyeditor isn't likely to be associated with the message.

The same goes for most translators, I think. If I list myself in the phonebook under "Translators -- Somali," I can't tell prospective customers, "I'll translate for you -- provided you're heterosexual." This is because my speech is not my own. Now, I'm mostly thinking of simultaneous translation, the type done in court. Obviously literary translators (e.g., the recently deceased Robert Fagles) are more closely identified with their translations. And perhaps they cannot be compelled to translate -- but it would be because of the close identification between their purchased speech (the translation) and their identity.

There is no necessary connection between a wedding photographer and a wedding photograph -- the photographer can easily leave his name off of the picture. So being forced to photograph an event you find repugnant doesn't (to my mind) impinge upon your identity very much -- any more than it impinges on someone's identity as a racist to serve lemonade to a black person. (Which is to say, it does impinge on someone's identity, but we have decided as a society that we care more about the victim of discrimination than the person discriminating.)

But here's a tough one: What about voiceover actors? What if the voice alone, but not the person behind it, is recognizable? What if both the voice and the person are recognizable? And what if the voice is not very distinctive at all? I don't have answers. But I think the reason that the questions seem hard is precisely because nothing is associated more immediately with a person's identity than the words he or she speaks.

Of course, people can turn down jobs for all kinds of legitimate reasons -- I only do sports; I don't work weekends; I don't travel; I only do medical translation, not legal translation; etc. And certain types of religious exemptions might also be necessary as a matter of First Amendment doctrine (though religious exemptions to neutral laws drive me nuts).

But the main issue here is just whether we think its constitutional to rule out of bounds some justifications for the refusal to do business with people. And as I've said, I'd draw a line based on the extent to which the speaker's identity is bound up with the expression. And a wedding photographer's identity isn't bound up with photographs, which depict things out there in the world. Nor is an anonymous copyeditor's, or even an anonymous copywriter's. (Nor, for that matter, is a lawyer's, given our model of advocacy.)
4.10.2008 12:49am
Brian K (mail):
Punishment for breaking the law is one thing; punishment (or an exacerbation of punishment) for believing that the law is immoral or unjust or illegitimate is the mark of a totalitarian state. A genuine civil liberties organization would recognize this distinction.
i still don't see how that applies to this case. where is the aclu forcing this person to change her beliefs in regards to homosexuality? the company was sued because it violated seattle's antidiscrimination law not because she believed homosexuality was wrong. had she not done the former, she wouldn't have been sued.

the purpose of the analogy is to point out how the mindset of the ACLU staff attorneys that led to that settlement is analogous to the mindset that drives totalitarianism and to argue that the attitude of the staff attorneys is inimical to a true respect for civil liberties.
this is a wildly over the top accusation.

I would also note that your reading of the agreement is incorrect:
conceded. but it doesn't change the thrust of my point. the aclu is not requiring her to accept or affirmatively agree that homosexuality is correct, good, just, moral, etc. they are only requiring her to agree that all people should be treated with respect and dignity. the strikes as perfectly reasonable for a civil liberties group to believe in.

Since when did one's right to believe that people who engage in certain activities are not worthy of one's respect - or even one's right to treat people in one's private non-commercial life with disrespect - become alienable, particularly at the demands of a purported civil rights organization?
i think you are the one who is misreading the argument here. the lawsuit was brought with respect to her business actions and i think it should be read in that context. in that regard the requirements are not on her private life but only on her business. the article gives no hint that the business owner wouldn't be able to attend an anti-gay rally (for example).

it's that they had the gall to require that she endorse any moral judgment whatsoever, no matter how laudable.
if this is case i don't think we'll be able to come to a mutually satisfactory agreement and i don't know how you can stand to live in this country. quite a few of our laws require us to accept and follow certain moral judgments. for example, i can not execute a homophobic bigot even if i thought it was morally required. society as a whole has decided that murder is not morally acceptable and enshrined that belief in our laws. likewise for child porn, drunk driving, slavery, spousal abuse, robbery, discrimination, etc.
4.10.2008 12:51am
RBG (mail):
Gosh, a minute ago Brian was telling me he respected me; now he's pulling the old love it or leave it canard. :-)

Two brief points:

1. It's perfectly fine for a civil liberties group to believe in respect and dignity. I don't condemn the ACLU for that; heck, I believe in treating nearly everybody I meet with respect and dignity myself. What I find repulsive is not their belief, but their desire to use the threat of continued litigation to get a defendant to assert that she subscribes to that belief.

2. I can stand to live in this country because the law does not convict you for believing that the anti-gay bigot deserves to die; it merely forbids you from acting on that belief. If the law did the former, it would be totalitarian in nature. Is that really so hard to grasp? I may disagree with most anti-discrimination laws on libertarian grounds, but I do not believe that their very presence makes our government illegitimate. What the law cannot do - at least so long as our nation calls itself free - is demand that I believe that the law is a good thing or that discrimination is a bad thing (which, by the way, I do believe discrimination is a very bad thing). The minute the law demanded that form of allegiance (an allegiance not simply of conduct but also of belief) would be the minute I departed these shores (fortunately, an easier remedy for me than many, being married to a foreign national). Again, why is this distinction so hard to grasp? Or do you sincerely believe that believing that murder is moral is exactly the same as actually murdering folks, and that the law should have equal power both over the belief and the act? That, my friend, is downright frightening.
4.10.2008 1:10am
Bruce:
I think the writer that sells his or her services to the public generally but refuses to sell to racial minorities, same-sex couples, etc. can be prohibited from discriminating in the sale of his or her services consistent with the First Amendment.

I don't see the relevant difference here between the New Mexico situation and the Fair Housing Act. Suppose you have an architect who designs and sells houses--but not to interracial couples. That's a violation of the FHA. The First Amendment is not going to save the architect. It's not forcing the architect to design and build houses; it just forces the architect not to refuse his or her services based on certain characteristics of the buyer.

Eugene, do you believe the FHA violates the First Amendment if it is applied to architects?
4.10.2008 1:18am
RBG (mail):
Well, okay. A couple more points.

3. I have no problem with the litigation (except insofar as I believe the law itself is a bad law; given that the law's on the books, the ACLU was within its rights to bring the suit). I acknowledge she was sued for breaking the law, not for her personal beliefs. But the ACLU extracted as a condition of settlement a confession from her of a certain attitude toward a certain class of people. That demand is of a different nature from the underlying lawsuit.

4. If my accusation is over the top, please explain why? I'm not saying the ACLU is totalitarian. I'm saying the mindset - the compulsion to extract confessions of "orthodox" belief - has parallels. I have given reasons for my assertion. Please do me the honor of doing the same for yours.

5. Again, I would actually find a prohibition in the settlement agreement on her attending an anti-gay rally less problematic than the extracted confession.

I dunno. Perhaps a belief that human dignity presumes an inner sanctum where nobody - and particularly the ACLU or the state - has any business prying and that proper respect means extending to others the courtesy of leaving that inner sanctum unmolested marks me as a hopeless troglodyte. But to my mind, without this kind of dignity and respect, no other kind matters.
4.10.2008 1:19am
Asher Steinberg (mail):
I see a lot of comparisons being made here that I really think are wrong. Catering, housepainting, cabinetmaking, refusing to build a house for blacks - what everyone making these comparisons fails to grasp is that the wedding photographs say something about the wedding. What does a wedding photographer do? He produces an enconium to a wedding in images. It's not some sort of dispassionate, value-neutral recording of events. The pictures are carefully crafted and selected, sometimes even staged, to convey a certain message about the proceedings. (For example, see here.) Whether wedding photography requires the skill of an Ansel Adams, whether wedding photographs are fine art, all these considerations are entirely besides the point. Even an incompetent hack wedding photographer is still trying to say something, however feebly and uncreatively, trying to portray the wedding in the best possible light, trying to capture the sanctity of the union, the joy of the family, the love the couple have for one another, and so on. So by forcing this woman to photograph this wedding, you're forcing her to say something in which she doesn't believe. Can the same be said of your hypothetical caterers and florists? I don't think so. Cooking is an art, of course, but it doesn't mean things in the same way that photographs do, and one certainly couldn't interpret one's meal at a wedding to make some statement about the holiness of the couple's matrimony. A steak is a steak. What about floral arrangement? It too is an art, floral arrangements at weddings convey, I suppose, some vague sense of festivity, certain colors may connote certain feelings or traditions, but there's not nearly, in my mind at least, the very specific sort of praise and celebration of the wedding in flowers that you see in wedding photographs. I would say there's a much closer analogy to painting or documentary filmmaking.
4.10.2008 1:45am
Bruce:
what everyone making these comparisons fails to grasp is that the wedding photographs say something about the wedding.

Architectural plans for a house say something about the house. I'm not grasping the difference.
4.10.2008 1:52am
Brian K (mail):
Gosh, a minute ago Brian was telling me he respected me; now he's pulling the old love it or leave it canard. :-)
haha...that's not the way i meant that sentence. morally based laws are not restricted to the US. i have always found the "if you don't like go somewhere else" argument basically an admission that you don't really have an argument.

i'll respond to each of your points in return.

1) fair enough.

2) I can stand to live in this country because the law does not convict you for believing that the anti-gay bigot deserves to die; it merely forbids you from acting on that belief.
but the former is all that the antidiscrimination law is requiring. the aclu sued to enforce this law. i think you have also misinterpreted by final paragraph. any of the laws i've listed do not prevent me believing that any of the activities are moral...they punish me for taking action on my concept of morality (or would if i thought any of the listed things were moral).

The minute the law demanded that form of allegiance
what allegiance is the law demanded? how does a law preventing you from discriminating against gays ally you with them?

3) she still agreed to the settlement. she could have negotiated to have that statement removed. she could have refused the settlement and proceeded with the litigation. she could have admitted she broke the law at any point in time and accept the punishment proscribed by the law (if there is one). she could have followed the law in the first place.

4) see #3.

5) seems like this is something else we disagree on.

the language of the settlement only requires that she acknowledge that all people should be treated with respect and dignity. she does not actually have to respect them. they are not changing her beliefs only her actions.
4.10.2008 2:10am
Ken Arromdee:
Architectural plans for a house say something about the house. I'm not grasping the difference.

They may say something, but exactly what they say doesn't change depending on who the customer is. So if an architect is willing to design houses for whites but not blacks, his objection is not based on the content of his speech (since he'd be saying the exact same thing in the cases he accepts and the cases he rejects.) This is not the case for a wedding photographer (or speechwriter).
4.10.2008 2:13am
Just a thought:
I may be late to the discussion and I haven't read all the comments in the other posts, but I just wanted to add some more food for discussion (I don't know if this case has been mentioned yet).

A few years ago, Canada had a widely-publicized case where the Human Rights Commission fined Scott Brockie, a Christian printer, for refusing to do a printing job from a homosexual activist organization.

I'm not sure whether that hypo falls in the spectrum of expression, writing text, etc.
4.10.2008 2:43am
J Greely (mail) (www):
As described in the complaint, the entire offensive act seems to have consisted of two email exchanges: A) Will you shoot our commitment ceremony? B) We only do traditional weddings. A) What do you mean, "traditional"? B) We don't do same-sex weddings.

That looks an awful lot like walking into a Taco Bell and asking for a Big Mac.

Suppose that instead of being a gay couple, they'd been straight, but nudists whose guests would also be nude. Would a photographer be punished for not being interested in being hired to perform services at this sort of "non-traditional" wedding?

In the same vein, would a commercial photographer who didn't specifically advertise wedding services get into trouble for refusing to shoot one, gay or straight? New Mexico doesn't seem to have official categories for licensing photography businesses, making it the individual photographer's choice of what to specialize in, and "traditional weddings" is a perfectly reasonable specialization, even if it ends up excluding gays.

Consider that the photographer doesn't just have to show up and watch the ceremony. They're an active participant, arranging both the formal "album" shots as well as capturing the interactions between the happy couple and the guests, and then editing, retouching, proofing, and printing the results. I think it's unreasonable for someone uncomfortable with gay weddings to be forced to spend hours not only participating in one, but actively working to present it as a wonderful thing by choosing and printing the pictures that best represent the occasion. Ditto for a nudist wedding.

Now, if a business that simply offered prints and enlargements of your photographs specifically refused to accept gay-wedding photos, that would be something to build a case on.

-j
4.10.2008 2:52am
q:

Architectural plans for a house say something about the house. I'm not grasping the difference.

I'm seriously amazed that people cannot grasp the difference. It's the difference between being forced to write a book about someone and being forced to sell my book to someone. The latter is not forced expression.
4.10.2008 2:56am
Asher Steinberg (mail):
Architectural plans for a house say something about the house. I'm not grasping the difference.

They say something about the house, but do they say something about the house's owners, do they express approval of the owners' marriage or religion or politics? That's the distinction. Wedding pictures will always valorize the weddings they're pictures of. Houses don't necessarily say something favorable about their owners or their living arrangements, though I think even here you could shade into speech acts that people shouldn't be compelled to make - say the gay couple wants a new house, and they ask for a master bedroom with some sort of ornamentation to signify their undying love, then here too I think the architect has a right to say no. If they just ask for an ordinary house, however, then I don't think there is a right of refusal. At any rate, the example that was given was a racist architect who says no to black clients, and I don't see what he's being compelled to say or express that differs from his own views in simply building a black person a house. Now if the client specifically commissions a house which will somehow symbolically embody the principles of black liberation theology, it's quite a different story.
4.10.2008 3:07am
Malvolio:
What I think is interesting is the negative effect the decision supposedly in favor of homosexual will have on the homosexuals (and on all "disfavored" groups).

There are two possible worlds here. The first world is one in which a same-sex couple might go to a anti-same-sex-marriage photographer and be turned away.

The other, the world in which we apparently now live, is one in which a same-sex couple might go to a anti-same-sex-marriage photographer and have their business accepted by someone who hates and resents them. Presumably, this will result in vastly inferior photographs of an unrepeatable event. Seems much, much worse to me.

Perhaps recasting it to a more dire situation would make the problem more obvious. Let's say you are Jewish and you have a serious heart problem. Let's say you pick a surgeon who, unknown to you, is a virulent anti-Semite. Would you rather he (a) refuse your case or (b) grudgingly accept it?
4.10.2008 4:04am
Soronel Haetir (mail):
Dang, you beat me to the black liberation theology theme example.

On the issue of how closely a wedding photographer is associated with the work as compared to a copy editor I will note that photographers generally retain copyright over these types of photos. Also the albums and other prepared materials are very likely to mention the photographer/company. These factors would seem to negate the argument that some sort of generic service is being offered.
4.10.2008 4:32am
David Schwartz (mail):
I'm seriously amazed that people cannot grasp the difference. It's the difference between being forced to write a book about someone and being forced to sell my book to someone. The latter is not forced expression.
This argument is circular. If the law forces me to sell my book to anyone who wishes to buy it, who I sell my book to does not express anything. If the law permits me to use certain criteria to decide who I sell my book to, then who I sell my book to does express my approval of that person, at least insofar as being able to buy my book.

If photographers were compelled by law to photograph any wedding that anyone asked them to photograph, then that they photographer a particular wedding would imply no form of approval, simply that they were compelled to photograph it. But if photographers are free to pick and choose which weddings to photograph, than that a photographer photographer your wedding would mean they had freely chosen to photograph it, and that could certainly express some form of approval.

If the situation now is that I can pick and choose my clients, then which clients I pick expresses something. If the law then compels me to serve any client, that form of expression that was previously available to me is now unavailable to me (or at least only available to me if I'm willing to break the law).

The law *eliminates* a form of expression, namely expression by selecting who you will and won't do business with and conveying approval or disapproval thereby.
4.10.2008 6:51am
John Thompson (mail):
Brian K said:

the aclu is not requiring her to accept or affirmatively agree that homosexuality is correct, good, just, moral, etc. they are only requiring her to agree that all people should be treated with respect and dignity. the strikes as perfectly reasonable for a civil liberties group to believe in.

Brian, the issue isn't whether it is perfectly reasonable for a civil liberties group to believe that all people should be treated with dignity and respect. The issue is whether it is perfectly reasonable for a "civil liberties" group to try and force everyone else to agree with them.
4.10.2008 11:07am
Wayne Jarvis:

The law *eliminates* a form of expression, namely expression by selecting who you will and won't do business with and conveying approval or disapproval thereby.


This is really one of the best point made in any of the threads. After all if the government were to adopt Scientology as the state religion, than forcing you to pledge allegience to Xenu (actually is Xenu the bad guy?) doesn't constitute your actual approval of Scientology. So that's okay. Actually, its better than okay, the government is doing your thinking for you. Who could possibly object to that?
4.10.2008 11:08am
John Thompson (mail):
Brian K: not trying to pick on you but just read your last post:

"the language of the settlement only requires that she acknowledge that all people should be treated with respect and dignity. she does not actually have to respect them. they are not changing her beliefs only her actions."

So you think it is ok for people to be REQUIRED to acknowledge certain ideas even if they don't agree? This is hardly the innocuous position you seem to think. More like thought control and quite scary to me at least.
4.10.2008 11:13am
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 04/10/2008 A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
4.10.2008 11:49am
Dilan Esper (mail) (www):
They say something about the house, but do they say something about the house's owners, do they express approval of the owners' marriage or religion or politics?

I could come up with a hypothetical where they do.

Fred and Fran Fundamentalist are conservative religious Christians who are opposed to birth control and abortions because they believe that God put us on earth to have large families, and that men should be breadwinners and heads of the household and a woman's sole role is to obey her husband, submit to him sexually whenever he wishes and whether or not she wants to, and bear and raise as many children as he can father.

Ann Architect is a single female who cohabitates with her boyfriend of 15 years and their child. Ann is a member of the United Church of Christ and belongs to a congregation headed by a female, feminist minister. Ann believes that God commanded that the genders were equal and that women should never suffer in patriarchal institutions. And Ann believes that God directed us to take care of the earth and not to overpopulate it, by having children beyond the replacement rate.

Fred and Fran seek to use Ann's services in building a large house. The house is to have a master bedroom with sound insulation, so that if Fran is screaming in pain because she is being forced to have sex that she doesn't wish to have, the sounds will be muffled. They also want Ann to build 18 bedrooms for the children that Fred and Fran contemplate having. Finally, they want a classroom where Fran can homeschool the children, teaching them Fred and Fran's conservative religious beliefs.

Question: is Ann similarly situated to the wedding photographer? Why or why not?
4.10.2008 3:12pm
Caliban Darklock (www):
I think photography being a form of artistic expression is a red herring.

I can legally refuse to do business with anyone who imposes restrictions on my work that I find objectionable. The couple in this instance is imposing objectionable restrictions - the photographs must be taken in this place, on this date, at this time, of this content. Any one of those is sufficient grounds to refuse service to a potential client, if the condition is objectionable - in the sole judgement of the service provider.

This has nothing to do with first amendment rights. It's entirely about what you can expect to demand from a service provider.
4.10.2008 3:27pm
Jens Fiederer (mail) (www):
Esper: don't forget the built-in whipping post to maintain proper discipline.
4.11.2008 2:13pm
markm (mail):

I don't see the relevant difference here between the New Mexico situation and the Fair Housing Act. Suppose you have an architect who designs and sells houses--but not to interracial couples. That's a violation of the FHA. The First Amendment is not going to save the architect. It's not forcing the architect to design and build houses; it just forces the architect not to refuse his or her services based on certain characteristics of the buyer.

Architects design buildings. Building contractors (who may also be architects, but usually aren't) build them. The first is creative and (sometimes) expressive work, although not so much for the typical house design. (Most house designs are just copied from previous work.) The second is not.

So, let's change this a little. Fred Phelps moves to New Mexico and asks a gay architect to design a church, a gay contractor to build it, and a gay carpenter who usually works for that contractor to work on the construction crew. When they all refuse, which ones can he sue?

It looks to me like it's only the contractor. Forcing the carpenter to work on a job he doesn't like violates the 13th Amendment. Designing a church is definitely expressive work (even when the message I receive on viewing the building is, "this was designed by a nut"), so forcing the architect to design it violates the 1st Amendment.

If you substitute "Aryan Nation" for Phelps, and "black" for "gay", does it change the analysis any?
4.12.2008 11:18am