Smith remains good law. Yet Fulton appears to have rewritten its meaning.
Update 3/23/14: I mistakenly assumed that petitioners appealed the Free Speech and Free Exercise clause. I now see that they only appealed the compelled speech issue. Here is the only question presented:
Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.
Of course the Justices can also grant the Free Exercise issue, even though it was not mentioned in the Cert petition. I’ll leave the remainder of the post as is.
Currently pending before the Supreme Court is the certiorari petition in Elane Photography v. Willock, which involves a case where a photographer refused to photograph a same-sex civil commitment ceremony. While much of the attention to this case focuses on religious liberty, Eugene Volokh and Ilya Shapiro have a great Op-Ed arguing that forcing Elane to photograph a same-sex wedding, against her wishes, would not only implicate religious liberty, but free expression. They would be forcing her to speak–or more precisely create art in the form of photographs:
Our brief explained that photography is protected by the First Amendment—even if it’s not political and even if the photos are taken for money, just as a lot of writing and art is done for money. Creators of expression have a First Amendment right to choose which expression they want to create.
Take, for instance, a freelance writer who declines to write a press release for a religious organization with which he disagrees. By the reasoning of the New Mexico Supreme Court, the writer has violated the law because his refusal to write the press release is discrimination based on religion—much as Elaine Huguenin’s refusal to photograph an event with which she disagreed was treated as violating the law. Yet a writer must have the First Amendment right to choose which speech he creates, notwithstanding any state law to the contrary.
This is a perfectly sensible argument, and provides a libertarian reason as to why Elane should win. But it also reveals why this case is a particularly bad vehicle for a religious liberty case. The Court can rule in favor of Elane with a strong First-Amendment free speech ruling, while avoiding the more thorny religion-clause issue. In fact, if the Court grants cert, they should almost certainly request briefing on the free speech issue (and maybe appoint Eugene as amicus).
But I can see a law clerk reading Eugene and Ilya’s brief, and writing “vehicle problem” on a cert memo.
Let’s think of another case. For example, a homeowner refuses to rent a spare bedroom to a same-sex couple. (This is an actual case trickling through the courts in England now). The state human rights commission finds that the homeowner must offer accommodations to the couple, even if their union and relations goes against religious beliefs. This issue would not present any free speech issue. It does present a private property issue more broadly, but it does not implicate the First Amendment. This would be a much better vehicle to resolve the core issue of Elane Photography.
Cross-Posted at JoshBlackman.com