Elane Photography v. Willock and the UK
Dear All, To follow on from Eugene's requrest, I would would like to mention the recent decision from the UK Court of Appeal. If the link doesn't open, the case of Ladele v London Borough of Islington should be available on the British and Irish Legal Information website: http://www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html I find this Judgment very concerning and is indicative of where this agenda is going. I am in the Court of Appeal on a similar issue and need to overcome this decision- any ideas!!! A few tips on translation: a.. The UK has no Constitution or Bill of Rights; so we have a very under-developed human rights jurisprudence, over reliance on the European Convention and Parliament sovereignty; b.. Thus, we tend to approach religious liberty (not as a right to exercise, and thereafter a compelling interest to limit), but rather under our discrimination legislation. So if every religious adherent is treated equally badly, that can satisfy strict scrutiny; c.. Discrimination legislation follows the usual procedures of i) Direct Discrimination and ii) Indirect discrimination. d.. On Direct Discrimination, the religious adherent is compared to a non religious person who objects to same sex union; ie religion is compare and similar to a bigot; e.. On Indirect discrimination, the policy of dismissal of religious adherents is justified as i) a religious belief can be discriminatory , ii) provision of a statutory service and iii) Parliament has outlawed it. f.. This case makes a number of silly errors such as the confusion between religious beliefs and manifestation. Sorry to bore you all and have a great Christmas, or holidays. Paul Paul Diamond Chambers of Paul Diamond PO Box 1041 Barton Cambridge CB23 7WY United Kingdom 01223 264544 www.pauldiamond.com - Original Message - From: Volokh, Eugene To: 'Law & Religion issues for Law Academics' Sent: Wednesday, December 16, 2009 9:54 PM Subject: Elane Photography v. Willock A New Mexico trial court order just upheld the New Mexico Human Relations' conclusion that a wedding photographer violated state antidiscrimination law when she refused to photograph a same-sex wedding. As to the state RFRA, the court held that (1) the husband-and-wife LLC through which Elaine Huguenin (the wife) did her photography didn't qualify as a "person," (2) the NMRFRA doesn't apply to civil lawsuits between private parties, and (3) applying the law to Elane Photography in any event passed strict scrutiny. Any thoughts on this? In particular, does it make sense for the state to conclude that even though New Mexico law discriminates against same-sex weddings in a vast range of ways - simply by not recognizing same-sex marriages - banning such discrimination by wedding photographers is necessary to serve a compelling interest in eradicating sexual orientation discrimination? Eugene -- ___ 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.___ 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.
RE: FW from Chip Lupu: Elane Photography
Sorry, I was responding to Steve Jamar's compelled speech question, and forgot to independently respond to his religious freedom question. If someone refuses to photograph a house owned by a lesbian, because he has a sincere religious objection to doing anything that economically helps lesbians -- not an objection I've ever heard anyone make, but I'm willing to hypothesize it here -- then indeed under a state RFRA regime the government would have to show that requiring such photographing notwithstanding a religious objection is the least restrictive means of serving a compelling government interest. That question is famously mushy, of course, because it turns on whether the government interest is just the interest in preventing undue economic burdens on gays and lesbians (which likely isn't implicated on the facts, since this objection is likely so idiosyncratic) or whether the government interest is a dignitary interest in preventing every instance of discrimination against gays and lesbians. Whether that latter interest is compelling is hard to figure out in the abstract. But if the claimant's objection is to facilitating not just economic transactions of lesbians but same-sex marriages, and the state asserting the supposedly compelling interest itself discriminates against same-sex marriages (and doesn't even recognize civil unions), then it's hard to see how the state's supposed dignitary interest is so compelling. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Mark Tushnet Sent: Thursday, December 17, 2009 2:57 PM To: Law & Religion issues for Law Academics; Law & Religion issues for Law Academics Subject: RE: FW from Chip Lupu: Elane Photography I'd appreciate an explanation of why the house photography case is harder if the refusal to photograph rests on a religious objection (for example, that one's religious beliefs require that one not facilitate the economic flourishing of gays). Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 ph: 617-496-4451 (office); 202-374-9571 (mobile) -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Thu 12/17/2009 3:40 PM To: 'Law & Religion issues for Law Academics' Subject: RE: FW from Chip Lupu: Elane Photography If a photographer refused to photograph a bar mitzvah because he disapproved of its religious content, he should be free not to create such expression - and not be forced to pay for the exercise of this First Amendment right. If the photographer refused to photograph something simply because of the identity of the commissioning people, and not because of the content of the work that would be created (e.g., a photographer refused to photograph a lesbian's house because the client is a lesbian), then we might have a potentially tougher question; I'm not sure. But that's not this case, because here Elaine Huguenin stressed that her objection was to the content of the ceremony that she is being compelled to photograph, and not just to the identity of the payer. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, December 17, 2009 12:35 PM To: Law & Religion issues for Law Academics Subject: Re: FW from Chip Lupu: Elane Photography What if it were not a wedding ceremony (legally recognized or not)? But a Valentine's Day party or a New Year's Eve Party that the gay couple wanted memorialized? Or the couple's child's birthday party or bar mitzva? Could the photographer then refuse? On what grounds? This is pure status discrimination. Is that allowed for freedom of conscience reasons? Or freedom from compelled speech (implied endorsement of the subject of the photographs) grounds? Is this any different from a gay wedding ceremony? Is pay to not play an appropriate accommodation of the claimed 1st amend rights? Steve On Thu, Dec 17, 2009 at 3:22 PM, Volokh, Eugene mailto:vol...@law.ucla.edu>> wrote: -Original Message- From: Ira (Chip) Lupu [mailto:icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>] Sent: Thursday, December 17, 2009 12:19 PM To: Volokh, Eugene Subject: Elane Photography Eugene: I'm at a computer from which I cannot post to the list. But here's one question about your compelling interest argument re: New Mexico RFRA -- What difference does it make that NM does not legally recognize same-sex marriage? The claim here is about the refusal of a commercial photographer to perform her offered professional service at a ceremony. It happens to be a wedding ceremony, but its legal significance (or absence of legal significance) has absolutely nothing to
RE: FW from Chip Lupu: Elane Photography
I'd appreciate an explanation of why the house photography case is harder if the refusal to photograph rests on a religious objection (for example, that one's religious beliefs require that one not facilitate the economic flourishing of gays). Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 ph: 617-496-4451 (office); 202-374-9571 (mobile) -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Thu 12/17/2009 3:40 PM To: 'Law & Religion issues for Law Academics' Subject: RE: FW from Chip Lupu: Elane Photography If a photographer refused to photograph a bar mitzvah because he disapproved of its religious content, he should be free not to create such expression - and not be forced to pay for the exercise of this First Amendment right. If the photographer refused to photograph something simply because of the identity of the commissioning people, and not because of the content of the work that would be created (e.g., a photographer refused to photograph a lesbian's house because the client is a lesbian), then we might have a potentially tougher question; I'm not sure. But that's not this case, because here Elaine Huguenin stressed that her objection was to the content of the ceremony that she is being compelled to photograph, and not just to the identity of the payer. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, December 17, 2009 12:35 PM To: Law & Religion issues for Law Academics Subject: Re: FW from Chip Lupu: Elane Photography What if it were not a wedding ceremony (legally recognized or not)? But a Valentine's Day party or a New Year's Eve Party that the gay couple wanted memorialized? Or the couple's child's birthday party or bar mitzva? Could the photographer then refuse? On what grounds? This is pure status discrimination. Is that allowed for freedom of conscience reasons? Or freedom from compelled speech (implied endorsement of the subject of the photographs) grounds? Is this any different from a gay wedding ceremony? Is pay to not play an appropriate accommodation of the claimed 1st amend rights? Steve On Thu, Dec 17, 2009 at 3:22 PM, Volokh, Eugene mailto:vol...@law.ucla.edu>> wrote: -Original Message- From: Ira (Chip) Lupu [mailto:icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>] Sent: Thursday, December 17, 2009 12:19 PM To: Volokh, Eugene Subject: Elane Photography Eugene: I'm at a computer from which I cannot post to the list. But here's one question about your compelling interest argument re: New Mexico RFRA -- What difference does it make that NM does not legally recognize same-sex marriage? The claim here is about the refusal of a commercial photographer to perform her offered professional service at a ceremony. It happens to be a wedding ceremony, but its legal significance (or absence of legal significance) has absolutely nothing to do with the claim. The state protects gays and lesbians against discrimination in private markets for goods and services, and this claim arises in one of those markets. Chip Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 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<mailto: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. -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. ___ 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.
Re: Elane Photography
In a message dated 12/17/09 3:41:12 PM, vol...@law.ucla.edu writes: > here Elaine Huguenin stressed that her objection was to the content of > the ceremony that she is being compelled to photograph, and not just to the > identity of the payer. > In my experience, most people (including most lawyers) on the left side of the playing field simply cannot, or will not, acknowledge the possibility that there is a difference between these two objections, or at least that the difference should be taken seriously. I think the reason is that acknowledging the difference is felt as opening the door wide for letting bad people get away with invidious discrimination just by mouthing a non-bigoted reason for discriminating. If pressed, their usual response is: many Southerners said (or would have been happy to say) that race mixing was contrary to God's word; if this had been accepted as an excuse for race discrimination the civil rights laws would have come to naught. Art Spitzer ___ 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.
Re: FW from Chip Lupu: Elane Photography
Ok. Out of the Constitution, into the statute. Fair enough. But that is not a 1st amendment argument, of course. Steve On Thu, Dec 17, 2009 at 3:40 PM, Volokh, Eugene wrote: > Because the New Mexico RFRA says so. > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Steven Jamar > *Sent:* Thursday, December 17, 2009 12:38 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: FW from Chip Lupu: Elane Photography > > > > true. but why is compelling state interest the standard here? > > > > I don't think SCt 1st amendment jurisprudence in cutting edge cases is > coherent such that we can be confident of anything. that is, mushy > principles will be trotted out to resolve it, not hard-edged rules and > existing standards of review. > > > > the court does this all the time -- Rosenberger, Summum, secondary effects, > hate speech enhanced penalties, etc. > > > > Steve > > > > On Thu, Dec 17, 2009 at 3:32 PM, Douglas Laycock > wrote: > > The state's pervasive discrimination against same-sex relationships makes > mincemeat of its claim that it has a compelling interest in prohibiting all > private discrimination against same-sex relationships. > > > > Quoting "Volokh, Eugene" : > > > > > > > -Original Message- > > From: Ira (Chip) Lupu [mailto:icl...@law.gwu.edu] > > Sent: Thursday, December 17, 2009 12:19 PM > > To: Volokh, Eugene > > Subject: Elane Photography > > > > Eugene: > > > > I'm at a computer from which I cannot post to the list. But here's > > one question about your compelling interest argument re: New Mexico > > RFRA -- What difference does it make that NM does not legally > > recognize same-sex marriage? The claim here is about the refusal of > > a commercial photographer to perform her offered professional service > > at a ceremony. It happens to be a wedding ceremony, but its legal > > significance (or absence of legal significance) has absolutely > > nothing to do with the claim. The state protects gays and lesbians > > against discrimination in private markets for goods and services, and > > this claim arises in one of those markets. > > > > Chip > > > > Ira C. Lupu > > F. Elwood & Eleanor Davis Professor of Law > > George Washington University Law School > > 2000 H St., NW > > Washington, DC 20052 > > (202)994-7053 > > 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. > > > > > > > > > > Douglas Laycock > Yale Kamisar Collegiate Professor of Law > University of Michigan Law School > 625 S. State St. > Ann Arbor, MI 48109-1215 > 734-647-9713 > > > ___ > 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. > > > > > -- > Prof. Steven Jamar > Howard University School of Law > Associate Director, Institute of Intellectual Property and Social Justice > (IIPSJ) Inc. > > ___ > 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. > -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. ___ 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.
RE: FW from Chip Lupu: Elane Photography
Because the New Mexico RFRA says so. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, December 17, 2009 12:38 PM To: Law & Religion issues for Law Academics Subject: Re: FW from Chip Lupu: Elane Photography true. but why is compelling state interest the standard here? I don't think SCt 1st amendment jurisprudence in cutting edge cases is coherent such that we can be confident of anything. that is, mushy principles will be trotted out to resolve it, not hard-edged rules and existing standards of review. the court does this all the time -- Rosenberger, Summum, secondary effects, hate speech enhanced penalties, etc. Steve On Thu, Dec 17, 2009 at 3:32 PM, Douglas Laycock mailto:layco...@umich.edu>> wrote: The state's pervasive discrimination against same-sex relationships makes mincemeat of its claim that it has a compelling interest in prohibiting all private discrimination against same-sex relationships. Quoting "Volokh, Eugene" mailto:vol...@law.ucla.edu>>: > > > -Original Message- > From: Ira (Chip) Lupu [mailto:icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>] > Sent: Thursday, December 17, 2009 12:19 PM > To: Volokh, Eugene > Subject: Elane Photography > > Eugene: > > I'm at a computer from which I cannot post to the list. But here's > one question about your compelling interest argument re: New Mexico > RFRA -- What difference does it make that NM does not legally > recognize same-sex marriage? The claim here is about the refusal of > a commercial photographer to perform her offered professional service > at a ceremony. It happens to be a wedding ceremony, but its legal > significance (or absence of legal significance) has absolutely > nothing to do with the claim. The state protects gays and lesbians > against discrimination in private markets for goods and services, and > this claim arises in one of those markets. > > Chip > > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > 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<mailto: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. > > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ To post, send message to Religionlaw@lists.ucla.edu<mailto: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. -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. ___ 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.
RE: FW from Chip Lupu: Elane Photography
If a photographer refused to photograph a bar mitzvah because he disapproved of its religious content, he should be free not to create such expression - and not be forced to pay for the exercise of this First Amendment right. If the photographer refused to photograph something simply because of the identity of the commissioning people, and not because of the content of the work that would be created (e.g., a photographer refused to photograph a lesbian's house because the client is a lesbian), then we might have a potentially tougher question; I'm not sure. But that's not this case, because here Elaine Huguenin stressed that her objection was to the content of the ceremony that she is being compelled to photograph, and not just to the identity of the payer. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, December 17, 2009 12:35 PM To: Law & Religion issues for Law Academics Subject: Re: FW from Chip Lupu: Elane Photography What if it were not a wedding ceremony (legally recognized or not)? But a Valentine's Day party or a New Year's Eve Party that the gay couple wanted memorialized? Or the couple's child's birthday party or bar mitzva? Could the photographer then refuse? On what grounds? This is pure status discrimination. Is that allowed for freedom of conscience reasons? Or freedom from compelled speech (implied endorsement of the subject of the photographs) grounds? Is this any different from a gay wedding ceremony? Is pay to not play an appropriate accommodation of the claimed 1st amend rights? Steve On Thu, Dec 17, 2009 at 3:22 PM, Volokh, Eugene mailto:vol...@law.ucla.edu>> wrote: -Original Message- From: Ira (Chip) Lupu [mailto:icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>] Sent: Thursday, December 17, 2009 12:19 PM To: Volokh, Eugene Subject: Elane Photography Eugene: I'm at a computer from which I cannot post to the list. But here's one question about your compelling interest argument re: New Mexico RFRA -- What difference does it make that NM does not legally recognize same-sex marriage? The claim here is about the refusal of a commercial photographer to perform her offered professional service at a ceremony. It happens to be a wedding ceremony, but its legal significance (or absence of legal significance) has absolutely nothing to do with the claim. The state protects gays and lesbians against discrimination in private markets for goods and services, and this claim arises in one of those markets. Chip Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 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<mailto: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. -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. ___ 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.
Re: FW from Chip Lupu: Elane Photography
true. but why is compelling state interest the standard here? I don't think SCt 1st amendment jurisprudence in cutting edge cases is coherent such that we can be confident of anything. that is, mushy principles will be trotted out to resolve it, not hard-edged rules and existing standards of review. the court does this all the time -- Rosenberger, Summum, secondary effects, hate speech enhanced penalties, etc. Steve On Thu, Dec 17, 2009 at 3:32 PM, Douglas Laycock wrote: > The state's pervasive discrimination against same-sex relationships makes > mincemeat of its claim that it has a compelling interest in prohibiting all > private discrimination against same-sex relationships. > > > Quoting "Volokh, Eugene" : > > > > > > > -Original Message- > > From: Ira (Chip) Lupu [mailto:icl...@law.gwu.edu] > > Sent: Thursday, December 17, 2009 12:19 PM > > To: Volokh, Eugene > > Subject: Elane Photography > > > > Eugene: > > > > I'm at a computer from which I cannot post to the list. But here's > > one question about your compelling interest argument re: New Mexico > > RFRA -- What difference does it make that NM does not legally > > recognize same-sex marriage? The claim here is about the refusal of > > a commercial photographer to perform her offered professional service > > at a ceremony. It happens to be a wedding ceremony, but its legal > > significance (or absence of legal significance) has absolutely > > nothing to do with the claim. The state protects gays and lesbians > > against discrimination in private markets for goods and services, and > > this claim arises in one of those markets. > > > > Chip > > > > Ira C. Lupu > > F. Elwood & Eleanor Davis Professor of Law > > George Washington University Law School > > 2000 H St., NW > > Washington, DC 20052 > > (202)994-7053 > > 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. > > > > > > > > > > Douglas Laycock > Yale Kamisar Collegiate Professor of Law > University of Michigan Law School > 625 S. State St. > Ann Arbor, MI 48109-1215 > 734-647-9713 > > ___ > 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. > -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. ___ 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.
Re: FW from Chip Lupu: Elane Photography
What if it were not a wedding ceremony (legally recognized or not)? But a Valentine's Day party or a New Year's Eve Party that the gay couple wanted memorialized? Or the couple's child's birthday party or bar mitzva? Could the photographer then refuse? On what grounds? This is pure status discrimination. Is that allowed for freedom of conscience reasons? Or freedom from compelled speech (implied endorsement of the subject of the photographs) grounds? Is this any different from a gay wedding ceremony? Is pay to not play an appropriate accommodation of the claimed 1st amend rights? Steve On Thu, Dec 17, 2009 at 3:22 PM, Volokh, Eugene wrote: > > > -Original Message- > From: Ira (Chip) Lupu [mailto:icl...@law.gwu.edu] > Sent: Thursday, December 17, 2009 12:19 PM > To: Volokh, Eugene > Subject: Elane Photography > > Eugene: > > I'm at a computer from which I cannot post to the list. But here's one > question about your compelling interest argument re: New Mexico RFRA -- > What difference does it make that NM does not legally recognize same-sex > marriage? The claim here is about the refusal of a commercial photographer > to perform her offered professional service at a ceremony. It happens to be > a wedding ceremony, but its legal significance (or absence of legal > significance) has absolutely nothing to do with the claim. The state > protects gays and lesbians against discrimination in private markets for > goods and services, and this claim arises in one of those markets. > > Chip > > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > 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. > -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. ___ 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.
Re: FW from Chip Lupu: Elane Photography
The state's pervasive discrimination against same-sex relationships makes mincemeat of its claim that it has a compelling interest in prohibiting all private discrimination against same-sex relationships. Quoting "Volokh, Eugene" : > > > -Original Message- > From: Ira (Chip) Lupu [mailto:icl...@law.gwu.edu] > Sent: Thursday, December 17, 2009 12:19 PM > To: Volokh, Eugene > Subject: Elane Photography > > Eugene: > > I'm at a computer from which I cannot post to the list. But here's > one question about your compelling interest argument re: New Mexico > RFRA -- What difference does it make that NM does not legally > recognize same-sex marriage? The claim here is about the refusal of > a commercial photographer to perform her offered professional service > at a ceremony. It happens to be a wedding ceremony, but its legal > significance (or absence of legal significance) has absolutely > nothing to do with the claim. The state protects gays and lesbians > against discrimination in private markets for goods and services, and > this claim arises in one of those markets. > > Chip > > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > 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. > > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713___ 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.
FW from Chip Lupu: Elane Photography
-Original Message- From: Ira (Chip) Lupu [mailto:icl...@law.gwu.edu] Sent: Thursday, December 17, 2009 12:19 PM To: Volokh, Eugene Subject: Elane Photography Eugene: I'm at a computer from which I cannot post to the list. But here's one question about your compelling interest argument re: New Mexico RFRA -- What difference does it make that NM does not legally recognize same-sex marriage? The claim here is about the refusal of a commercial photographer to perform her offered professional service at a ceremony. It happens to be a wedding ceremony, but its legal significance (or absence of legal significance) has absolutely nothing to do with the claim. The state protects gays and lesbians against discrimination in private markets for goods and services, and this claim arises in one of those markets. Chip Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 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.
Elane Photography v. Willock
A New Mexico trial court order just upheld the New Mexico Human Relations' conclusion that a wedding photographer violated state antidiscrimination law when she refused to photograph a same-sex wedding. As to the state RFRA, the court held that (1) the husband-and-wife LLC through which Elaine Huguenin (the wife) did her photography didn't qualify as a "person," (2) the NMRFRA doesn't apply to civil lawsuits between private parties, and (3) applying the law to Elane Photography in any event passed strict scrutiny. Any thoughts on this? In particular, does it make sense for the state to conclude that even though New Mexico law discriminates against same-sex weddings in a vast range of ways - simply by not recognizing same-sex marriages - banning such discrimination by wedding photographers is necessary to serve a compelling interest in eradicating sexual orientation discrimination? Eugene ___ 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.
