eclectic_boy: (Zeno)
[personal profile] eclectic_boy
I was looking into the collision between religious-freedom laws and anti-discrimination laws, spurred on by reading the recent news about the New Mexico wedding photographer who was accused of refusing to take pictures of a gay wedding (I should at least mention in passing that gay marriage is not legal in NM).

My googling has borne fruit, in the form of what I think could be a real 'money quote', from no less than Antonin Scalia:


...The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires...

But the "exercise of religion" often involves not only belief and profession but the performance of (or abstention from) physical acts ... It would be true, we think (though no case of ours has involved the point), that a State would be "prohibiting the free exercise [of religion]" if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display...

Respondents in the present case, however, seek to carry the meaning of "prohibiting the free exercise [of religion]" one large step further. [...] They assert, in other words, that "prohibiting the free exercise [of religion]" includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. ...We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. We first had occasion to assert that principle in Reynolds v. United States (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice...

Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability..."


-- SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, STEVENS, and KENNEDY, JJ., joined.
EMPLOYMENT DIV., OREGON DEPT. OF HUMAN RES. v. SMITH (1990)

Date: 2013-08-24 05:41 pm (UTC)
From: [identity profile] q10.livejournal.com
note, though that Scalia's reasoning doesn't bear on the free speech claim.

that is, generally the state can't compel you to say things. generally producing art counts as saying things.

so, for example, a law saying ‘every citizen must make a drawing or collage about why they think marriage equality is awesome, and attach it to their 1040. those who fail to do so will be fined. our favorites will be displayed on the IRS website.’ would be unconstitutional on free speech grounds.

it would still be unconstitutional if it applied only to people who produced those kinds of art for a living.

the most interesting argument here is that the relevant anti-discrimination law, as applied to this case, puts the photographer in roughly that position.

there are a lot of good reasons to not find this compelling, but the issue of religious freedom doesn't really enter into it.

also, the fact that a number of center-to-left justices found Scalia's reasoning in that case suspect should, perhaps, give one pause.

η: or, as another way to see how this is complicated - imagine a small advertising firm that refuses clients with products, services, or ideas that the firm's owner disapproves of. can the state force somebody to write advertising copy for a position they want nothing to do with? that seems pretty dicey (although not obviously out of the question), but it's hard to articulate why exactly this is different here.
Edited Date: 2013-08-24 05:54 pm (UTC)

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