From an editorial published Friday in the Los Angeles Times:
Marriage between members of the same sex, a once radical idea, is increasingly accepted even where it hasnt been enshrined in law. But a significant number of Americans continue to object to gay marriage as a matter of religious conviction. Should they be able to act on their beliefs by refusing to do business with gay couples?
In the vast majority of cases, the answer must be no. Restaurants, hotels and other public accommodations shouldnt be able to refuse to serve gay couples, married or not, any more than they should be able to deny service to interracial couples or those from different religions. But the situation may be different for services whose work involves the creation or communication of a message.
Elaine Huguenin, a wedding photographer, has asked the U.S. Supreme Court to overturn a ruling by New Mexicos highest court that she was required by a state public-accommodations law to take pictures of a female couples commitment ceremony. Last week, a judge in Colorado ruled against a baker who had refused to supply a gay couple with a cake for their wedding reception.
Although religious scruples were at issue in both cases, the issue is primarily one of free speech. The 1st Amendment protects not only the right to express ones own views but also a right not to be compelled to convey someone elses.
We see a distinction between businesses that provide the same product or service to all comers and those that collaborate in the creation of a personalized message. Drawing that line will sometimes be difficult.
An easy case was the businessman who offered old-fashioned trolley tours to newlyweds but wanted to exclude same-sex couples. The expressive quality of his work is minuscule. Thats also true of supplying a generic wedding cake to straight and gay couples alike. As the judge in Colorado put it, the baker had been asked to bake a cake, not make a speech.
On the other hand, compelled speech is a bad idea. No one would dream of requiring a Democratic speechwriter to work for a Republican politician. So what about a wedding photographer? Huguenins lawyer told the Supreme Court that Huguenin, and not her customer, is the speaker communicating through her photographs and books. Her actions in choreographing, capturing, selecting, editing, producing and arranging the final photographs and storybooks all affect, and ultimately determine, the messages conveyed through her images and books.
Not all wedding photographers imbue their work with a distinctive point of view, but many do. The Supreme Court should find a way to protect them and members of other expressive professions.
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