Expressive Freedom, Again (Because It Really Is Important)

In a Wall Street Journal op-ed also posted on the Cato Institute’s website, Eugene Volokh and Ilya Shapiro write:

We support the extension of marriage to same-sex couples. Yet too many who agree with us on that issue think little of subverting the liberties of those who oppose gay marriage. Increasingly, legislative and judicial actions sacrifice individual rights at the altar of antidiscrimination law.

The crux of the argument:

Of course, a couple that is told by a photographer that she does not want to photograph their commitment ceremony may understandably be offended. But avoiding offense is not a valid reason for restricting or compelling speech.

The Supreme Court’s ruling in Wooley guarantees the right of photographers, writers, actors, painters, actors, and singers to decide which commissions, roles or gigs they take, and which they reject. But the ruling does not necessarily apply to others who do not engage in constitutionally protected speech. The U.S. Supreme Court can rule in favor of Elane Photography on freedom-of-speech grounds without affecting how antidiscrimination law covers caterers, hotels, limousine drivers, and the like. That’s a separate issue that mostly implicates state religious-freedom laws in the more than two-dozen states that have them.

The First Amendment secures an important right to which all speakers are entitled—whether religious or secular, liberal or conservative, pro- or anti-gay-marriage. A commitment to legal equality can’t justify the restriction of that right.

Which won’t, of course, convince those on the LGBT left who view individual liberty and expressive freedom as subversive and anti-progressive doctrines that mustn’t be tolerated (see comments soon to be posted below).

More. And then there’s this look at the shape of things to come from the U.K., complicated, admittedly, but the fact that that the Church of England is, in fact, the state church in England. State churches are an unholy abomination, but so is suing a church in court to perform your wedding.

Furthermore. Will Saletan at Slate, on the broader issue, writes: “For the last couple of weeks, I’ve been defending people who oppose gay marriage. That feels pretty strange, since I’ve advocated gay marriage for more than 20 years.” He concludes:

“We’re not the losers in this fight anymore. We’re the winners. Our task now is to win the right way, not by dismissing our opponents as bigots and haters, but by persuading them that marriage is just as good for gays as it is for straights. We don’t have to shove our answer down their throats. They will come around to it—they’re coming around to it already—because it’s true.”

28 Comments for “Expressive Freedom, Again (Because It Really Is Important)”

  1. posted by Don on

    Well, that is a pretty handy argument. But I’m not sure it does what you would like it to do. It saves photographers and tosses the rest of the wedding bunch under the bus.

    I’m having a hard time thinking of Sears portrait studio as an artistic endeavor. And wedding photographers being only barely removed from that group. But okay.

    I think the whole thing will be gone in 10 years. There won’t be one angry gay couple or irate wedding cake baker left. Everyone should be back to their respective enclaves in the next 12-24 months.

    I believe the truly conservative position is to wait a bit. Let this blow over. And very few people will remember this ever having happened. Right now, bakers and photographers are voicing their last gasp protests. They know the jig is up. This is standing astride the course of history and shouting “STOP!”

    At worst, we have gay wedding people just like we used to have gay restaurants that we all went to on Valentine’s Day and big dates because we couldn’t be seen as obvious couples in love.

  2. posted by Tom Scharbach on

    The WSJ article is available at Cato. Unless you think that there is value added by turning yourself inside out to read it in the WSJ, instead at Cato, just use the direct link.

  3. posted by Jorge on

    Wedding photography doesn’t strike me as the type of art that would be protected under the First Amendment.

    The Supreme Court’s ruling in Wooley guarantees the right of photographers, writers, actors, painters, actors, and singers to decide which commissions, roles or gigs they take, and which they reject.

    This is a truly bizarre extrapolation of the case upholding the right of New Hampshire drivers to cover up the state’s “Live Free or Die” motto on their license plates. I cannot find any sort of connection in the article. The article suggests that a photographer who doesn’t approve of gay marriage is likely to have the photographs be somewhat disparaging, even if it’s unconscious. That’s what’s clearly protected under First Amendment grounds: the method, the presentation, the style. You can’t agree on it, then the photographer is free to back out on free speech grounds (not to mention contractual grounds).

    But to the extent that the mere selction of clients in wedding photography expresses a message, it would be very difficult to identify it. As difficult, no more and no less, than it would be to identify the message in selling a wedding cake. That is, only on religious grounds. Which I do think should be upheld.

  4. posted by Tom Jefferson III on

    LGBT left who view individual liberty and expressive freedom as subversive and anti-progressive doctrines that mustn’t be tolerated—

    Wow. Really, Dude? Few people here on the left — one may call them ‘left’ because they do not worship Ayn Rand — have actually said that they opposed to any/all faith based exemptions.

    Most of the folks on the left — which probably includes me because I never really liked Ayn Rand and I have always liked that big ‘left’ speech Charlie Chaplin made at the film of the Great Dictator film.

    What people — here anyways, for the most part — have objected to are the terms/conditions of the exemptions and how they would apply be written out/applied generally.

    Some people on the left may indeed oppose any/all exemptions out of bitterness/anger. Remember that the ‘religious right’ has not (for the most part) offered much in return for such religious liberty laws….they still want to oppose gay marriage, gay rights bills and get foreign nations to criminalize gay people.

    • posted by Mike in Houston on

      I find it hard to take anything Stephen writes seriously when he starts in with his conspiratorial agitprop like this.

      But let’s take this to the logical extreme — what if “business” is now considered 1st Amendment territory, rather than the Commerce Clause and some sort of amalgam of freedom of religion, speech and association can be applied to individuals and businesses that allow them to discriminate based on belief system… but only around gay marriage.

      Does the photographer refuse to take pictures of two people of the same gender at straight person’s wedding for fear that those two people are gay-married?

      Do you have to fill out an affidavit before getting seated at a restaurant affirming that you and your friend are not dating, in a relationship or gay-married?

      This is the absurdity we are confronted with.

      I’m all for expressive freedom and individual liberty — but “free speech” is not “free-from-consequence speech”, not matter how much “religious liberty”-lipstick you slap on that pig.

  5. posted by Tom Jefferson III on

    For example….

    I do not want these “religious liberty” exemptions being extended to large business groups. It should be limited to self-employed or small business owners. If you are part of a national company that sets your rules — Sears might — then you got to follow what the national says.

    I do not want “religious liberty” being used as a pretext to deny people — not just gay people — essential services. The type of things that people — not just gay people — need to live and be successful in America.

    I also wonder how much effort/time am I suppose to give in making reasonable religious exemptions to people who show almost NO interest in offering any sort of concessions on their end.

    For example, in Arizona, was their any serious discussion about adding sexual orientation/gender identity to the state civil right laws? NO.

  6. posted by Kosh III on

    “get foreign nations to criminalize gay people”

    And the righties would re-criminalize us in the US if they thought they could manage it. You know the old “kill a queer for Christ” rallying cry.

    I tend to be somewhat to the left of Bernie Sanders but I fully support the freedom of religion: put a bucket on your head and worship the Vorlon god of frustration for all I care, but don’t use the coercive power of the state to compel me to conform to YOUR religious opinion.

    • posted by Clayton on

      “And the righties would re-criminalize us in the US if they thought they could manage it.”

      In point of fact, all the 2012 Republican candidates for president were in favor of reinstating Don’t Ask Don’t Tell, they were all in favor of a federal constitutional amendment definining marriage as one man and one woman. Rick Santorum spoke against non-procreative sex and contraception, saying that these things were not part of God’s plan, and were something that, as president, he would give his attention to. Essentially he was saying that he saw it as his duty to render illegal all gay sex acts and a great many straight ones, as well, and to restore us to a day when all sex was illegal unless it was between one (married) man and one (married) woman in the missionary position who were not using birth control.

  7. posted by Tom Scharbach on

    More. And then there’s this look at the shape of things to come from the U.K., complicated, admittedly, but the fact that that the Church of England is, in fact, the state church in England. State churches are an unholy abomination, but so is suing a church in court to perform your wedding.

    The “shape of things to come”? Are you serious?

    The situation is not applicable to the United States. The United States does not have a state church. England does not have the equivalent of the First Amendment in its unwritten constitution. The two are apples and oranges, as we say, or chalk and cheese, as the English say.

    No lawsuits (to my knowledge) have ever been filed in the country to force such a result. Any lawsuit that might be filed in the future would be disposed of on summary judgment. No serious serious question about the ability of Catholics, Mormons, Christians, Jews, Muslims or any other religion to decide what weddings to perform or not, as the case may be, has ever been raised in our country.

    The only people who raise the issue (and raise it over and over again) are anti-gay extremists attempting to stir up fear and hatred among the ignorant, Americans who don’t know anything about our form of government or our guarantees of separation. Are you starting to pound “the gay and lesbians are the enemy of religion” drum, too?

    I hope not, but you sure is starting to sound that way.

    So, I ask, what is the point? What are you trying to accomplish?

  8. posted by Tom Scharbach on

    The interplay of constitutional issues presented by Wooley and Elaine Photography are complicated and subtle.

    Applying Wooley to Elaine Photography would be a serious expansion of Wooley, moving the Wooley reasoning beyond direct government mandate into the realm of indirect government action, and that expansion would have long term implications in many areas of law.

    I hope that SCOTUS takes up the case, because the I think that issue is important, even though, as Don points out, a SCOTUS decision would not be applicable to the wedding industry at large.

    An interesting question is whether SCOTUS (assuming that it decides to apply Wooley to Elaine Photography) will do so with reasoning that expands beyond the narrow issue of same-sex weddings. I don’t see how it can help doing so. If that happens the decision will have a major impact on public accommodation laws in general, and, over time to a lot of other laws.

    I wish the Cato article had more substance about the legal issues. It skates on the surface, but doesn’t do much more, and the legal issues presented by broadening Wooley beyond the scope of government mandate are important.

    If any of you are inclined to read Wooley, I urge you to read Justice Rehnquist’s dissent.

  9. posted by Tom Scharbach on

    Which won’t, of course, convince those on the LGBT left who view individual liberty and expressive freedom as subversive and anti-progressive doctrines that mustn’t be tolerated (see comments soon to be posted below).

    Well, here’s one of them, and you can make of it what you will.

    I favor strong protection for conscientious objection to laws of general application, including religious conscientious objection.

    I have no problem with enacting laws giving substance to conscientious objection, although I think that the question is better left to the Constitution and the courts.

    If laws are enacted with respect to conscientious objection exceptions to public accommodation laws, individual or business, I support them if and to the extent that (1) the laws are religion-neutral, applicable to all religions and to non-religious conscientious objection alike; (2) within the scope of the laws, the laws are issue-neutral, which is to say that if a law is enacted that projects conscientious objection with respect to weddings/marriage, the laws should similarly protect conscientious objection to all other weddings/marriages; (3) the laws are class-neutral, which is to say that if the exemption applies to conscientious objection to one protected class, it should apply to all protected classes; (4) the laws make the obvious and common-sense distinction between individuals and small, family-owned businesses, on the one hand, and large-scale businesses, on the other; and (5) reasonable accommodation to the general public should be made by requiring the businesses in question to post notices concerning the people/events which they will not serve.

    I’d be curious to hear your views, Stephen. So far, all you’ve done in your posts on this topic is quote others, and offer up side snips like the one quoted at the top of this comment. What are the perimeters of the laws you claim that progressives “won’t tolerate”. What kind of laws would you support?

  10. posted by Tom Scharbach on

    Stephen, quoting Will Saletan at Slate: “We’re not the losers in this fight anymore. We’re the winners. Our task now is to win the right way, not by dismissing our opponents as bigots and haters, but by persuading them that marriage is just as good for gays as it is for straights. We don’t have to shove our answer down their throats. They will come around to it—they’re coming around to it already—because it’s true.”

    Granted (although I have my doubts as to whether 20-25% of the population will ever accept marriage equality) and I think that most of the folks making comment on the dozen or so posts on this issue would agree (for the most part) with Saletin’s sentiment as expressed in the quote.

    But good feelings aren’t the end of the game. We live in the real world, and we have to solve real-world issues with laws.

    So what is your position on the spat of proposed laws floating around the country. Do you support them or oppose them, and why? You’ve not said.

    What kinds of laws would you support? Tom Jefferson has been very clear, numerous times, about his views. I’ve been clear about mine, too, again numerous times, and so have others. You’ve been largely silent about the issue.

    I don’t think that I’ve ever seen you less forthcoming about what it is you actually support and why. What gives?

  11. posted by Don on

    The problem with the religious exemption laws that we are discussing is not really about the desire to keep one’s religious beliefs intact. That is not what they want here. They want a legal protection to publicly shame gay people into following their belief system. They think they are saving us. It’s all gotten contorted around into “I’m not endorsing your gay marriage . . .” But they do believe we are destroying the fabric of society by rejecting “God’s laws.”

    They have lost the right to regulate our sex conduct as a source of shame and derision. They are now losing the right to shame us for being publicly out through marriage.

    That is all that is happening here. And religious conservatives are upset about that fact. So they are grasping at fig leafs to find some way to publicly say “you are going against the will of God” and get away with it. I say shout it on a street corner, if you’d like. Who cares?

    Houndentenor’s schadenfreude is already in full swing. They are howling right now that evil gays will use the law to tell them what to believe and how to act. That we are using legal levers to shame them into changing their beliefs and those of our fellow Americans.

    Does any of this sound familiar?

    Now I am strongly in favor of not piling on now that we’re finally being set free. But I would appreciate at least a token realization on the part of the gay far-right that this is what they are asking us to do. I think saying “how dare you evil leftie gays trample religious liberty!” is not a winning argument.

    Saying “we won our freedom, now let’s not turn into our former adversaries by making them live under the same yoke they chained us with for so long.”

    After all, that is what Jesus would do. Well, and just about every Jew I know. But I digress.

  12. posted by Clayton on

    “We’re not the losers in this fight anymore. We’re the winners.”

    It depends upon how you define losers and winners. Thirty-plus states (including mine) still define marriage as one man and one woman. Over 60% of the nation does not have equality. So how are we winners, exactly? Granted, we’ve won a lot of battles recently, but the war is far from over.

    • posted by Don on

      Valid point. Mine was based on the fact that nearly all of those remaining 30 states have legal challenges to their bans. NOT A SINGLE ONE has stood up against a court case.

      If they had a decent legal strategy or even a hope of one, they would have come up with it by now. After dumping millions into the enactment and using the power of the state AG’s offices, they haven’t been able to stop one.

      That’s why I say we’re winning and they’re losing. By the end of 2014, nearly all of those remaining states will have struck down their bans in their respective trial courts. (appeals will likely ensue) If one of them doesn’t get struck down because the judge cannot side with us, s/he will have to write an opinion and it is nearly unwritable at this point. At least not with a shred of legal reasoning in it. The defense cannot come up with a cogent legal argument to give the judge.

      That’s how bad it is right now for social conservatives.

      • posted by Tom Scharbach on

        Agreed, Don. We are winning, but we’ve not won. I think that we will see marriage equality mandated nationwide within 3-4 years, and then we have years of dealing with massive resistance. But my guess is that within a decade or so, it will be over.

        • posted by Houndentenor on

          Considering that there are plenty of areas where school district lines are draw so that in effect the schools are for all practical purposes segregated, we can’t even say we’ve completely won the desegregation fight. Let’s not kid ourselves that a single court decision or law will put an end to anti-gay bigotry. The best one can expect is that the law favors equal rights for all and does not enshrine bigotry as it too often has.

  13. posted by Jorge on

    State churches are an unholy abomination

    Blasphemy! All kings should answer to the church.

    Wait, that would make it a church state.

    But demogracies should serve all people. There can be no state church in such a society.

    If any of you are inclined to read Wooley, I urge you to read Justice Rehnquist’s dissent.

    Oh, no, spare me! His dissents are already responsible for making me swing far to the I’m-Bored-Go-Away Right on social issues. Any more and I might do something crazy and apply for a job with Oliver North.

  14. posted by JohnInCA on

    Standing my old canard: if some trait you have (chosen, innate, or otherwise obtained) gives you a legal right to flout anti-discrimination laws, then that chosen trait has no business being covered by the very same anti-discrimination laws. You don’t get to use your religion as both a bludgeon and a shield.

    And yeah, I get that would hurt a much larger swath of people then the ones actually being dicks, but seeing as no one on the right will touch it with a ten foot pole I don’t have to worry about that too much.

    • posted by Jorge on

      Standing my old canard: if some trait you have (chosen, innate, or otherwise obtained) gives you a legal right to flout anti-discrimination laws, then that chosen trait has no business being covered by the very same anti-discrimination laws.

      That’s blaming the victim. Why punish an innocent party for being impacted by a bad law? We should change the law responsible to conform to the Constitution.

      • posted by Tom Scharbach on

        We should change the law responsible to conform to the Constitution.

        That might be a lot trickier than you think, Jorge.

        Read Woolsey (which did not involve “artistic expression” at all, but was about an objection by a Jehovah’s Witness to being forced to advertise “Live Free or Die” on his license plate) and see if you think that the case supports the conservative canard (“The Supreme Court’s ruling in Wooley guarantees the right of photographers, writers, actors, painters, actors, and singers to decide which commissions, roles or gigs they take, and which they reject.”).

        Then read the NM court in Elaine Photography where the court distinguished Wooley from the facts in Elaine because no direct government mandate was involved.

        Conservatives argue that Wooley supports free-reign “artistic expression” because they want it to do so, not because it does.

        SCOTUS may take up Elaine and extend Wooley from direct government mandate to public accommodation law, but until then, the NM courts are accurately reading the law and Wooley.

        • posted by Houndentenor on

          Artistic expression extends to license plates now? We really have gone off the rails as a society.

          • posted by Tom Scharbach on

            No, artistic expression does not extend to license plates. Wooley had nothing whatsoever to do with artistic expressions.

            The court held that the state could not force Jehovah’s Witnesses to display the state motto (“Live Free or Die”) on their vehicle’s license plates. The Court held that the law effectively required individuals to “use their private property as a ‘mobile billboard’ for the State’s ideological message”, requiring JW’s to “foster … an idea they find morally objectionable.”

            Conservatives are trying to leverage that case into more than it actually held. We’ll see if the Supreme Court grants cert. I think that the chances are 50/50 at best.

      • posted by JohnInCA on

        If you’re talking about the “innocent victim” who decided to be a dick because of their religion, then I think you stretch the term.

        If you’re talking about “innocent victim” as about someone entirely unrelated to the topic, then read my second paragraph.

        • posted by Tom Scharbach on

          Along those lines, has anyone else noticed that articles starting out with “We support the extension of marriage to same-sex couples …” or “We support the rights of gays and lesbians to …” almost invariably end up with “gays oppose liberty”, “gays are bullies” and so on?

  15. posted by Houndentenor on

    LOL. So now the very people who rail against “political correctness” want not to be called bigots even though that’s exactly what they are. The irony-cognitive dissonance combo is highly entertaining. What word would they like for us to use? I suppose this means that segregationists weren’t racists either? And how bizarre is it for people who speak of us in the most disdainful and unflattering (and frequently blatantly untrue) terms respect us to treat them better than they treated us (and still do)? Really? And why should I play along with that? The anti-gay crowd are finally getting a taste of their own medicine. Excuse my Schadenfreude.

    • posted by Tom Scharbach on

      I suppose this means that segregationists weren’t racists either?

      Nope, they weren’t. They were “diversity challenged”.

  16. posted by Tom Jefferson III on

    Cato Institute — I thought that they were a libertarian think-tank…isn’t it the belief of the libertarian-right that regulating the private sector — say with any civil right laws — is immoral and should be opposed…..?

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