Responding to Eugene's question -- I don't have anything like a theory of how compelled speech arguments should work in the anti-discrimination context. The most I have said in print is in a footnote to a recent article (7 Ala. Civ. Rts. Civ. Lib. Rev. 1, 52, n. 171). My intuition is that those in commerce who make themselves generally available for all customers, and whose work tends to track customer preferences (e.g., the DJ who plays the songs the hosts like best; the photographer who takes the standard shots of marrying couple, guests, family, etc.) would have a very weak compelled speech claim. Those who are creating different products with their own independent content (e.g., a motivational speech, even if tailored to a group) might well have a better claim, though I wonder whether those people make themselves "generally available."
In any event, I make no sweeping assertion about how this line of argument should be resolved across the universe of cases. When Mitch Berman asked about "solicitude" for Fred, I took him to be asking whether Fred's religious opposition to inter-religious marriage was more deserving of respect than a commercial photographer's religious opposition to same sex marriage. I have no idea how to parse such distinctions among religious objections to various types of marriage, and I agree that courts should not try to evaluate the respect that one deserves compares to the other (nor label some of them as prejudice and others as properly religion-based). On Wed, Oct 12, 2016 at 2:56 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > A question about Chip’s “no solicitude” position to the > compelled speech claim for Fred the photographer or DJ: Chip, would you > say the same as to a singer? A portrait painter? A calligrapher? > > > > Antidiscrimination laws ban religious discrimination as > well as sexual orientation discrimination. Say a motivational speaker who > generally speaks to pretty much any group is asked to speak to a Church of > Scientology gathering, or a press release writer who is generally open for > business is asked to write a press release for the Scientologists. Would > he have a legitimate claim not to be compelled to speak to such an > audience, or to write such a press release? > > > > Such laws in some places also ban discrimination based on > political affiliation. (D.C. is one example.) Say someone doesn’t want to > write a press release for a candidate who belongs to a party he disapproves > of. Would that be enough for a compelled speech claim? Is the line > between creators of different kinds of speech (photographs vs. portraits > vs. press releases vs. speeches)? Or is it that people who > write/speak/etc. for a living, and who take various contracts, can’t raise > compelled speech objections in any contexts? > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu] *On Behalf Of *Ira Lupu > *Sent:* Wednesday, October 12, 2016 11:29 AM > *To:* Mitchell Berman <mitch...@law.upenn.edu> > *Cc:* David Bernstein <dbern...@gmu.edu>; Law & Religion issues for Law > Academics <religionlaw@lists.ucla.edu>; conlawp...@lists.ucla.edu > *Subject:* Re: Noteworthy, puzzling scholars' brief in Arlene Flowers > > > > Mitch Berman's good question asks in general terms about how much > "solicitude" Fred's claim deserves. But we cannot answer intelligently > unless we know the forum and the grounds advanced for Fred. Is he asking > the state legislature to exempt religious objectors from public > accommodations law? Is he raising a compelled speech claim? A religious > freedom claim under a RFRA, or a state constitution? I would give his > claim no solicitude in any of these contexts, for reasons I have spelled > out at length on this listserv and in law reviews. But I can imagine that > others might well react differently depending on the legal context. > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 301-928-9178 (mobile, preferred) 202-994-7053 (office) Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
