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.
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Date: 2013-08-24 05:41 pm (UTC)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.