David Bernstein, writing at the Washington Post’s hosting of the Volokh Conspiracy, offers this thought experiment, building on the reasoning in the New Mexico photography discrimination case: he notes that the state court case ruled against the photographer, even though the refusal only extended to photographing the wedding, and not to providing any other services for gay clients. The court’s reasoning was "…that when a law prohibits discrimination on the basis of sexual orientation, that law similarly protects conduct that is inextricably tied to sexual orientation.”
He concludes by pointing out:
In other words, this hypothetical is limited to the set of facts wherein a photographer refuses to photograph the brith but has no objections to photographing Sarah and Aviram’s wedding, Elah’s bat mitzvah party, or Yared’s semicha lerabbanut.
Bernstein argues, and I think I am persuaded, that it’s incorrect to find that a photographer in such a circumstances is discriminating against Jews simply by refusing to photograph circumcision ceremonies.
His argument weakens a bit, I think, when he analogizes this argument to photographing same-sex weddings, and the reason I think it’s weaker is that while I don’t accept the idea that circumcision violates the human rights of a child, I think it’s a more defensible argument that whatever objection the photographer has to same-sex weddings.
But is that distinction one that a secular government can make?
It seems to me that the only difference between a “gay” wedding and a “straight” wedding is the professed genders of the participants, and that there is no practical difference between the two.
If a photographer was willing to photograph circumcisions, but not Jewish ones, that would be a more comparable analogy. And, in that case, I would say that the photographer was discriminatory and in the wrong.
I think that the analogy falls apart when we look at the photographer’s business as a whole. He is not a circumcision photographer who refuses to shoot a Jewish circumcision, which would be more equivalent to a wedding photographer who refuses to shoot a wedding for a gay couple.
I think I agree with akennett, but couldn’t it also be said that he’s a party photographer who is refusing to shoot a Jewish party? Presumably the parents aren’t asking the photographer to shoot the snipping itself, but rather the celebration surrounding it.
Exactly. The occasion of a brith is a joyful one, and there is a gathering. The intent is not to photograph the circumcision itself, but the party guests and the event.
So we can easily imagine a photographer who shoots other parties and events – Jewish ones and Gentile ones – without objection, but balks at this particular kind of party.
It’s very simple to resolve. If he photographs other circumcisions, but not ones performed in a Jewish ceremony, then he is dicriminating based on religion. Otherwise there’s no question to answer.
Yeah, I think the expansion from ‘brith’ to ‘joyful gathering’ is a leap, Bricker. There’s an argument to be made by the photographer that there’s sufficient difference between a brith and say, a birthday party, to carve out an ability to refuse service.
That said, I’d hate to try to take either side in front of SCOTUS. This is still developing as societal attitudes change and that makes for unpredictable outcomes.
And, scarily, for my mom’s second husband - a devout muslim - it happened at a family party when he was seven or eight in front of witnesses and with a photographer in attendance. That was a man not laughing as he told the tale.
And let me get the obvious joke out of the way, “Don’t give the photographer a tip!”
I’m open to being convinced otherwise, but at this point, it seems to me that if they photographer is willing to photograph other Jewish events, and refuses to photograph circumcision parties for anyone, Jews, Muslims, and others who decide to go for that and decide to have a party, it doesn’t seem like religious discrimination to me.
Willing to photograph weddings, but not gay weddings? Seems discriminatory.
Willing to photograph circumcisions, but not Jewish circumcisions? Seems discriminatory.
Unwilling to photograph any weddings? Seems OK.
Unwilling to photograph any circumcision parties? Seems OK.
I don’t follow. Are you asking if the government can determine whether discrimination is on the basis of religion or some other reason, like dislike for circumcision? I think they can, they have, they will continue to, and actually have to in order to enforce anti-discrimination laws. I’m wondering why anyone would doubt it.
I (and I stole this argument from Bernstein) am saying:
The New Mexico Supreme Court said, "…that when a law prohibits discrimination on the basis of sexual orientation, that law similarly protects conduct that is inextricably tied to sexual orientation.”
Therefore, said the court, the law prohibiting discrimination on the basis of sexual orientation also prohibits the refusal to photograph a same-sex wedding.
Now we have a photographer that hates circumcision.
Circumcision is inextricably tied to the Jewish religion; you can’t be a Jewish male and not be circumcised, and you can’t be an observant Jewish male and fail to circumcise your male children.
Is it also true that when a law prohibits discrimination on the basis of religion, that law similarly protects conduct that is inextricably tied to religion?
A Jewish photographer’s business is based on photographing brises. He gets a call from an excited Jews for Jesus couple who want him to photograph their bris. He finds the couple’s religious views and commitment to proselyting repugnant, and is inclined to believe (take it as having been stipulated to) that the bris photographs will also be used in JfJ propaganda in some form.
Under the ruling (and your opinion), could he refuse the business?
Hasn’t it always? I am by no means an expert on anti-discrimination laws, but hasn’t things that are tied to a religion (or a race or gender for that matter) always been considered in determining if someone is discriminating on the the basis of religion? As the New Mexico opinion points out, the Supreme Court rejected prior attempts to couch discrimination on the basis of sexual orientation as discrimination on the basis of conduct (getting married) before in Christian Legal Society and Lawrence.
I’ll also point out that the New Mexico opinion wasn’t really persuaded that the discrimination was only because of the wedding, because “… Elane Photograph’s owners testified that they would also have refused to take photos of same-sex couples in other contexts, including photos of a couple holding hands or showing affection for each other.”
Maybe I’m less informed. Is discrimination on the basis of religion protected if it is dressed up as discrimination on the basis of actions closely related to that religion already?
ISTM that the photographer’s objection is inextricably tied to the practice of circumcision, and thus any discriminatory effect is incidental. He would presumably be happy to photograph a bat mitzvah or whatever, but would object equally to photographic a secular circumcision.
Compare that to the New Mexico case, in which the refusal was directly tied to the suspect classification.
I think that it certainly could constitute discrimination against Jews… to the extent the facts show that it’s actually discriminatory against Jews. The more of those facts we make up to analogize it to same sex marriage (i.e. the more we make circumcision seem like it’s inextricably tied specifically to the discriminatory intent, and the more we make it seem like the photographer’s reasons exhibit anti-Jewish animus, and the more we make Jews and gay people seem similarly-situated for the purposes of the exercise), the better a fit it is, but the less it seems like it fits the point the author intends.
The Elane case probably isn’t the best analogy, precisely because I think everyone agrees that if the photographer refused to take any pictures of Jewish-themed events, the conduct would clearly be within the law’s reach. I’m more exploring what the reaches of the decision’s rationale are… the idea that both discrimination on the basis of the protected class AND conduct that is inextricably tied to that protected class.
So to construct a hypothetical party: a photographer who had no objections to taking pictures of same-sex couples gazing into each other’s eyes or holding hands on the beach at sunset, but refused only wedding pictures of same-sex couples.
Why does this person refuse? I think it’s pretty clear in Elane that the photographer had no problem doing weddings, but just refused to do same sex weddings. Isn’t that pretty clear discrimination on the basis of sexual orientation? I mean the only distinction is the sexual orientation of the couple. Elane tried to argue that they weren’t discriminating on the basis of sexual orientation because they would refuse to photograph two heterosexual women getting married too, but that too failed to persuade the court.
And again, I don’t see how this is different from existing anti-discrimination cases already. If I refused to hire someone who took prayer breaks, wouldn’t that be discrimination on the basis of religion against Muslims? Again, I’m not sure, but I’ve read the EEOC has found that it is.
I think it’s fair to read into that language the idea that conduct is only considered inextricably tied to the protected class to the extent that animus toward the conduct is considered tied to animus toward the protected class. The state court’s decision went on to say
In other words, there could be a basis for doing so if there was one in the record; it’s not a categorical rule. The distinction between gay wedding and being gay wasn’t significant to the court, that doesn’t mean that all distinctions between being and doing are irrelevant.