The First Amendment: It's Not Just for Conservatives

Val Wilde has posted an article on the Patheos Friendly Atheist blog titled "Wedding Photographer Sues For 'Artistic Freedom' to Deny Service to Gay Couples." Like many others, her habit of viewing everything through an identitarian lens prevents her grasping the First Amendment issues involved. I try to explain them in my comment, copied below.

https://friendlyatheist.patheos.com/2020/07/03/wedding-photographer-sues-for-artistic-freedom-to-deny-service-to-gay-couples/?utm_medium=email&utm_source=BRSS&utm_campaign=Nonreligious&utm_content=361

Okay, so imagine I'm a photographer and I advertise that I do photographs of graduation ceremonies, including graduations from recovery programs. Now a young man comes to me and says, "I've almost completed this program my pastor recommended to me. In ten days I'll be graduating reparative therapy, freed from homosexuality through Christ, and I'd like to hire you to photograph the ceremony!"

I would feel absolutely entitled to say, "Sorry, you'll have to find someone else. I believe it's a dangerous delusion to think you can change your sexual orientation, and I'm not going to create art promoting the idea that you can."

Now suppose this man sues me, claiming I've discriminated against him based on his identity as a born-again Christian, since I'm willing to take graduation pictures for other people. I defend myself by saying I'm not discriminating against him, I'm discriminating against an idea I don't believe in. After all, I'm perfectly willing to photograph his graduation from other kinds of programs; and if a relative of his asked to commission me to photograph his "ex-gay" ceremony, I'd still refuse, even if the relative isn't born-again herself. So it's the idea I'm discriminating against, not the person.

In defending myself in this way, I'm asserting my First Amendment right to freedom from compelled speech, just as the photographer in this case is (even if he prefers to use the language of religious liberty).

To see this argument presented with more legal precision, read what the First Amendment Lawyers Association had to say about the Masterpiece Cakeshop case:

http://www.scotusblog.com/wp-content/uploads/2017/09/16-111-tsac-first-amendment-lawyers-association.pdf