The naive view of rights is that they can be framed cleanly as contests between an individual and the state, with an on-off switch flipping one way or the other. If only it were that easy. In fact, disputes over rights often involve competing individual claims of right, with the government deciding which asserted right to vindicate and which to trammel or ignore.

Case in point: does an artist have a right to refuse to create art based on normally commercially impermissible factors, such as the ethnic, gender, or sexual identity of the person commissioning the art?

Eugene Volokh has a fascinating series of posts about this very question. (The link is to the first such post; the rest are listed at the bottom of that post). Volokh discusses a recent case in New Mexico in which a wedding photographer refused on religious grounds to photograph a gay marriage, and was found in violation of New Mexico antidiscrimination law as a result. Volokh argues that this decision violates the photographer’s First Amendment rights in a way that it would not if she were refusing to provide, say, seating at a restaurant or car service or something. He asks intriguingly whether the government should be able to compel a freelance writer to write stories or copy offensive to that writer.

Volokh concedes no case on point says “antidiscrimination laws can’t compel artists to refrain from discrimination,” but makes a decent argument that the matter should be covered by core First Amendment principles. The comments do a good job of pointing out the definitional problems. What is art? Doesn’t a chef create art? Is photography always an art, even when it is on a workaday task like memorializing a wedding? How, exactly, do you draw the line between “artistic” endeavors that have some element of expression that cannot be compelled by the government, versus mere provision of services? Can such a line be drawn on principled grounds? I think another question is whether we want courts to even try. I’m not thrilled with the prospect of judges defining what is not art and what is. I don’t even understand it when my co-blogger David defines it; what chance do I have when an en banc panel of the Ninth Circuit issues eight concurring and dissenting opinions trying? I’m no happier with court embroilment in that practice than I was when the Ninth Circuit decided to help Casey Martin by defining as a matter of law what is or isn’t part of a game of golf.

So where does that leave us? Not looking for simple explanations, I think. Here there are competing claims of right — the artist’s (First Amendment based) claim of freedom of expression and religious freedom and the customer’s (statutory) claim of the right to buy publicly offered services without discrimination. I’m not sure how they should be resolved under existing law. Should it have something to do with whether the asserted “art” implies a viewpoint on the part of the artist? (A studio photograph arguably does not; an essay arguably does.) Does it have to do with whether the service has a substantial expressive element that may differ from job to job? (As I said, I’m not thrilled with courts deciding that question.) Or is this a signal that there is a fundamental conflict between antidiscrimination law and freedom of expression that we have skirted around in the past? I suspect it is the latter. As a society we are increasingly bad about confronting the fact that things have costs. Antidiscrimination norms have costs to individual liberty. You may view the liberty infringed as having little value, and the principle of antidiscrimination advanced to be extremely important, but it’s deceptive and in the long term hopeless to pretend that resolving such issues isn’t about the inevitable valuing of one claim of right over another.

Last 5 posts by Ken

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