Lawyer for New Mexico photographer: Forcing her to work at a gay wedding violates her right of free expression

The comments to Jazz’s post this morning have been raging all day so I figured there’d be interest in hearing directly from her spokesman. Most people, me included, approach this issue from the standpoint of free exercise of religion. If she disapproves of gay marriage because of her faith and the state tells her to ignore her faith and work the wedding anyway, well, then, free exercise ain’t as free as one would think. But that’s probably a nonstarter; read Dale Carpenter’s post at the Volokh Conspiracy to see why. He, Eugene Volokh, and the Cato Institute filed an amicus brief in this case siding with the photographer — but free exercise was one of their minor arguments. Under Supreme Court precedent, as long as a law isn’t deliberately targeted at religion, you can’t plead free exercise if it happens to interfere with your religion. The New Mexico Supreme Court found that the state’s antidiscrimination law isn’t targeted, so that’s that.

But what about a free speech claim instead? Photography isn’t just any ol’ profession, says Carpenter. It’s an art, and art necessarily involves expression, in which case we have a problem. Rod Dreher elaborates:

There is simply no way not to see photography as an art. The New Mexico court disagreed. New Mexico does not have same-sex marriage; the ruling was not on marriage law, but anti-discrimination law. Still, the importance of this ruling is that it’s another example of courts establishing in jurisprudence that homosexuality is exactly like race for purposes of non-discrimination — that is, that the only reason to discriminate against homosexuals is irrational animus, as the US Supreme Court has been holding.

I would have granted First Amendment protection to an artist wishing to discriminate on the basis of race, or any other protected category. To compel a writer, photographer, painter, composer, or what have you, to put her talent into the service of something that violates their conscience is a serious wrong. If a gay photographer believed in good conscience that he could not photograph the wedding of Christian fundamentalists, then I think he absolutely should have the right to refuse, on First Amendment grounds.

When I worked as an editorial writer for The Dallas Morning News, from time to time I had to write editorials taking a position I didn’t believe in, because that was the board’s decision. That was fine; it was part of the job. But I told my editor early on that I could not, in conscience, write an editorial supporting abortion rights, which the paper backs.

Maybe that’s a potential compromise position for the U.S. Supreme Court. Mundane professions have no constitutional exemption from an antidiscrimination law, but a profession that involves a viewpoint — literally, in the case of photography — gets First Amendment protection. That’s not a ruling that’d satisfy everyone, but it’d at least vindicate the principle that you can’t be compelled to adopt another’s perspective, even if you’re being compensated for it.

I’m honestly surprised that there’s no serious movement afoot to pass a constitutional amendment that would build a broader right of religious conscientious objection into the Free Exercise Clause. There’s massive support for the photographer’s position, per Rasmussen’s poll last month. Social conservative leaders like Mike Huckabee occasionally mention the Federal Marriage Amendment, but that’s going nowhere given solid opposition on the left and federalist opposition among the libertarian right. There’d be opposition to this one too, of course — gay-rights supporters would warn that a right of conscientious freedom would lead to people claiming exemption from all sorts of laws, and they’d probably seize the opportunity to push for some sort of offsetting constitutional amendment for gay marriage. Still, though: 85 percent support for the photographer in the Ras poll. And the more people learn the specifics of this case, how the gay couple sued her even though they’d found another photographer and then won attorney’s fees from her(!) on top of it, the more sympathetic they’ll be. This is where the political action will be come 2016 in pushing back against gay marriage, I expect.