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The ACLU and the Elane Photography Case:

Stop the ACLU writes,

Where was the ACLU on this one you may ask? Word has it that an ACLU-affiliated attorney represented the "offended" lesbians. "Foremost defender of the United States Constitution and the Bill of Rights" .... yeah right. More on that later.

From what I know of this case, I see no reason to fault the ACLU for it. Elane Photography's lawyer tells me that Julie Sakura of Albuquerque was the lawyer on the other side; she is not an ACLU staffer, nor, to my knowledge, has the ACLU taken a stand on this, or had Sakura characterize herself as an ACLU representative. Sakura has worked with the ACLU as a cooperating attorney, but my sense is that this just means she sometimes takes cases for them. It certainly doesn't mean that all her work is ACLU-sanctioned.

Nor do I see any reason to fault the ACLU for not representing Elane Photography here. Elane Photography has eminently capable counsel in the form of the Alliance Defense Fund; I don't know that Elane Photography even sought the ACLU's help. And while it might have been possible for the ACLU to file a friend-of-the-commission brief (though I'm not sure the commission's rules allow it), it's certainly sensible for an organization with limited resources to avoid spending effort on amicus work at such a stage, especially given that competent counsel are on the case.

I'll be happy to condemn the ACLU for being on the wrong side here if they actually end up on the wrong side. But so far I see no evidence of this -- please correct me if I'm mistaken.

Jay (mail) (www):
My contributor is of course a trusted source. I'll talk to him tomorrow and update the post if a correction is warranted. I have already updated the post stating that it is possible one may be warranted.
4.9.2008 11:50pm
Chris Bell (mail) (www):
Stop the ACLU makes overblown accusation? Stop the presses.
4.9.2008 11:57pm
davidbernstein (mail):
It is fair to note, however, that the ACLU is against religious exemptions to antidiscrimination laws, has lobbied against them (see the ACLU's opposition to the 1999 1999 Religious Liberty Protection Act), and has represented clients seeking to force religious organizations to comply with antidiscrimination mandates that conflict with their beliefs, going as far back to the Bob Jones case in 1983 and the Dayton Christian Schools case in 1986. For more on this, see this link.
4.10.2008 12:14am
RBG (mail):
David is exactly right. And, in a shameless bout of self-promotion, I would point interested readers to the discussion starting with this comment, describing a similar case to this one involving Elane Photography from a couple years back in Seattle where the ACLU was not only on precisely the wrong side of the issue, but imposed as a condition of settlement a condition that convinced me that the ACLU has little respect for freedom of conscience, at least where that conscience is religiously informed.
4.10.2008 12:23am
UW2L:
I only want to dispute the "limited resources" claim - or, not dispute exactly, but point out that it's rather funny given that the ACLU's deep pockets are cited as one reason why they're helping defend Gitmo detainees who face the death penalty - the court-appointed military lawyers defending the detainees need more resources than they've been given to work with.

And of course, the ACLU does care about the legal rights of photographers, at least insofar as photography in public places is concerned...
4.10.2008 12:23am
UW2L:
Hah, didn't see RBG's comment before posting the ACLU-WA link. Would like to see a citation to the Seattle case that settled, beyond the comment linked above.
4.10.2008 12:25am
Guesty McGuesterson:
Objection your Honor! The facts have no relevance in this case!
4.10.2008 12:26am
RBG (mail):
I should have noted that my esteemed opponent in that thread kindly posted a link to the ACLU's own press release on the case, as well as correcting my five-year-old memory of the terms of the settlement - please be sure to read the subsequent posts...
4.10.2008 12:27am
gattsuru (mail) (www):
Given that this is a rather significant case on the matter of freedom of expression/non-expression, I think lack of action from the ACLU would be more than telling enough. I'm not familiar enough with the relevant jargon to tell the difference between -affiliated and -cooperating, but I think to the average reader you could swap the two and the point would still stand.

The ACLU does not, for example, avoid statement on high profile gun cases by claiming that the NRA will take care of them (it does so by stating that the Second Amendment means nothing). Moreover, it has had little problem providing "Action Alert" e-mails on topics that are not directly related to an ACLU-paid lawyer, nor does it save such action alerts for mere civil liberties matters (an memorable and recent alert was about ensuring 'cheap' ie subsidized oral contraceptives; it may well be good policy or bad, but civil liberties related not so much).

I'll wait for a few days before really hammering them about it, but given the rather clear-cut nature of the case, some sort of response would be important to demonstrate that the group is actually about civil liberties and human rights rather than crazed liberals.
4.10.2008 12:38am
EIDE_Interface (mail):
The ACLU(American Criminal Liars Union) decides what's a civil liberty by fiat.
4.10.2008 1:00am
G.F. (mail) (www):
Thanks Prof. Volokh for picking up my post over at STACLU.

You are correct on your point about criticizing the ACLU for NOT being involved in cases. The ACLU's absence isn't necessarily its guilt. The reason I added that comment in at the end of my post was because I had picked up the same information you did, hence my qualified description of the attorney as an affiliated attorney.

I do, however, echo the comments of Mr. Bernstein and gattsuru regarding the ACLU's silence on or hostility to religious liberty on these cases. The fact that this attorney has done ACLU work in the past is a good indicator of the worldview of those who associate themselves with the ACLU (and who the ACLU chooses to associate with) without necessarily damning the ACLU in this particular case.

Another case of note (also being handled by ADF) is out of Ocean Grove, NJ. There, several same-sex couples approached a Methodist group demanding to hold civil union ceremonies on the ministry property. Same deal as in Elane -- same-sex couples file a complaint with NJ's Dept. of Civil Rights, which launched an investigation and led to a loss of tax-exemption. In that case, the ACLU directly represents one of the lesbian couples.
4.10.2008 1:28am
UW2L:
Thanks, RBG!

So in both cases, the ACLU, or whatever attorney, is suing to enforce local anti-discrimination laws. Watch out, here comes the "substitute 'black' for 'gay'" comment.

Equal access to public accommodations for, say, African-Americans is pretty well settled... So I see a few different reasons why one might be upset over what happened to Elane Photography.

1. First Amendment defense as EV pointed out - I'll make art about whoever I damn please, and if I don't want to make art of you, too bad.

2. Public accommodations laws encompass too many categories of businesses within their reach - operating on the belief that such laws are a good thing rather than on some belief that all hope for the future of classical liberalism in America died in 1866 and 1871.

3. Following up from the first two: It's not OK to discriminate against African-Americans anymore. Nobody seriously thinks that this is going to change, that the Civil Rights Acts are going to go away and businesspeople will someday once again have "the right to do wrong" with regard to denying African-Americans their goods or services. Surely the most hardcore libertarian has shrugged his shoulders and accepted by now that the law of the land is very clear on this point, whether or not they think that public accommodations laws are a bad thing and businesspeople shouldn't have to serve certain customers against whom they may be prejudiced. That is, I'm thinking most of the avowed libertarians on here are fine with the public accommodations laws that have existed in this country for over 130 years, and the case law such as Heart of Atlanta Motel that's been around, not as long as the Civil Rights Acts, but still longer than probably most people who read VC have been alive. However, the gay rights movement is quite a bit younger, and hasn't made as much headway. It's still OK legally to discriminate against GLBTQ individuals (and couples) in most places, New Mexico and Seattle/Washington being two exceptions.

I honestly want to know - how many people would (dare to) take the photographer's side here if she refused to photograph a mixed-race couple? Is it the blanket belief that businesspeople should have the right to discriminate in which customers they'll take that underlies the indignation in this thread? Or is it that discrimination against GLBTQ people is OK because it's based in religion rather than good old-fashioned bigotry? Which part of the First Amendment are we talking about here - the right to make art however you damn please, or religious freedom and freedom of association?

The Seattle Office of Civil Rights fined a shop owner tens of thousands of dollars because when a blind woman walked into his shop with a seeing eye dog, and he didn't want the dog in there, he literally threw her out. The same city office was involved in the case BRG cites as well. In each case, it was just enforcing Seattle law. Was it Wrong for the city to sanction the photographer and Right for them to sanction the shop owner? Or is it only Wrong to enforce equal access to public accommodations laws when you can find some religious passage to hide behind that makes your prejudice against same-sex couples special and OK, whereas everybody knows that racism, sexism, and disability-based discrimination are just stupid and baseless?

If you're going to argue the First Amendment in the Elane case, please go with the parts of the First Amendment you're really arguing from, not the ostensible "I'm an artist!" argument. And if you're going to argue private business owners should have the right to do wrong, please do what the Seattle Office of Civil Rights did, and apply that equally: public accommodations laws are bad, or at least they reach too far beyond fundamental categories such as lodging and restaurants where they're good, and Elane Photography would be just as justified in refusing to photograph a mixed-race couple as for refusing to photograph a same-sex couple.

All right, rant over.
4.10.2008 1:30am
Paul Barnes (mail):
So being black is morally equivalent to being GLBT?

That's my only problem. There is nothing moral wrong with having a certain skin color. However, I think that sexual acts are subject to moral criteria and people disagree on their conclusions.
4.10.2008 1:43am
Freddy Hill:
I have been following this series of posts and their corresponding comments in awe. It has been, so far, six posts and over 300 comments if my count is correct.

This is Bizantine. We could just as well be discussing how many angels can dance on the head of a pin. Bonus question: do angels have a sex?

I understand that it is the lawyer's curse: Given any question, how can you argue the client's position so you get hired and make beaucup de money. But, people, let's just be real: Force a photographer to take pictures when she does not want to? Just because she's seemingly too honest to claim an excuse(My SD chip just crapped up on me! My new Nikon D300 had to be sent back for warranty repairs!)

It's too late now for most of us, but for those fair-minded among you: just try a little counter-factual. Imagine that an atheist or a Muslim had claimed that she was offended by Christian weddings. How many of you would have clamored that it was her right to privacy and to free exercise of religion (or lack thereof) that was at stake? How can you claim that a photographer must be compelled to take repulsive pictures (to her) while at the same time we argue that Muslim taxi drivers in Minneapolis must be accomodated when they refule to give rides to intoxicated or liquor-carrying rides?
4.10.2008 1:44am
davidbernstein (mail):
I honestly want to know - how many people would (dare to) take the photographer's side here if she refused to photograph a mixed-race couple?
It's not even a close question, no photographer should be forced to take pictures of anything he doesn't want to, just, as Eugene suggested, no writer should be forced to write about a topic he doesn't want to. The situation would be different if, say, the photographer was willing to do photoediting work for whites but not blacks on exactly the same topic. Then, no issue of freedom of expression comes into play, the photographer is simply refusing a service to blacks he offers to whites. Here, Elane wasn't refusing service to gay people, it was refusing to photograph a particular event that conflicted with the owners' religious ideology. Similarly, I wouldn't expect the gov't to be able to force a photographer to take pictures at a bris if the photographer was opposed to circumcision, for whatever reason. (and btw, why would anyone WANT a photographer to take pictures at an event the photographer finds repugnant--hardly likely to result in great pictures).
4.10.2008 1:45am
davidbernstein (mail):
Imagine that an atheist or a Muslim had claimed that she was offended by Christian weddings. How many of you would have clamored that it was her right to privacy and to free exercise of religion (or lack thereof) that was at stake?
OF COURSE a Muslim or atheist shouldn't be forced to take pictures at a Christian wedding.

How can you claim that a photographer must be compelled to take repulsive pictures (to her) while at the same time we argue that Muslim taxi drivers in Minneapolis must be accomodated when they refule to give rides to intoxicated or liquor-carrying rides?
The two situations are not analogous because (1) regarding the religious freedom issue, taxis are essentially a regulated public utility that gets a monopolistic license in exchange for its obligation to serve the entire public, and (2) regarding the freedom of expression issue, driving a taxi is not reasonably considered an issue of freedom of expression the way photography is.
4.10.2008 1:52am
Alec:
The mixed race couple analogy is appropriate, but of course the fact pattern never arises in real life because no one is willing to openly oppose such relationships. Nor can you shield yourself behind the "acts vs. status" argument, because by definition interracial marriage involves an "act," not a "status." Because "to marry" is a verb. As is, btw, to "believe" and "to think." Just sayin...

While I understand (and disagree with) libertarian objections to these laws, please do not insult our intelligence by pretending there is some kind of distinction between these situations and typical service situations. Is she running a religious organization? No? Then sorry, no dice.

Those who see a distinction between gay couples and mixed race couples, to the extent they are making legal arguments, are being intellectually dishonest and need to be called on it.
4.10.2008 2:31am
Cornellian (mail):
That's my only problem. There is nothing moral wrong with having a certain skin color. However, I think that sexual acts are subject to moral criteria and people disagree on their conclusions.

At one time, lots of people thought skin color was a moral issue, especially differences in skin color.
4.10.2008 2:33am
Freddy Hill:

OF COURSE a Muslim or atheist shouldn't be forced to take pictures at a Christian wedding.

But a non-gay photographer should? I'm missing the difference here.

On the Muslim taxi drivers in MN, I'm not sure what your point is.

I take your point (1) to mean that you are agreeing with me. Taxis ARE regulated and must take anybody, but MN cabbies sometimes refuse rides for religious reasons, violating their charters. Why are thy not prosecuted?

Point (2) is conceded. I wasn't aware that I was making a First Ammendment point in my previous post.
4.10.2008 2:37am
Brian K (mail):
The two situations are not analogous because (1) regarding the religious freedom issue, taxis are essentially a regulated public utility that gets a monopolistic license in exchange for its obligation to serve the entire public,

In all honestly, this is the first time i've heard taxis called a public utility. in what way are they? their owned or operated by public or semi-public entities. it can't be because they are licensed and regulated. are physicians, lawyers, architects, etc. public utilities? having a monopoly doesn't make you public. (i think microsoft will back me up on that one). lots of groups have obligations to serve the entire public (e.g. restaurants and hotels) but that doesn't make them public utilities. one distinguishing characteristic between public utilities and taxis is that in the former one usually doesn't have alternate options but in the latter one does. the potential fare can always rent a limo, rent a car, use a different taxi, have someone pick them up, etc.


(2) regarding the freedom of expression issue, driving a taxi is not reasonably considered an issue of freedom of expression the way photography is.

if i have a right to refuse to give (or sell) someone my services because i don't agree with their actions what does it matter if the action i disagree with is drinking alcohol instead engaging in homosexuality or believing in a different church or having premaritial sex?

it seems to me that differentiating this case from the taxi driver case is much more difficult than you want it to be.
4.10.2008 2:48am
Paul Barnes (mail):
Cornellian,

So?

The more I think about this issue and the conflict that is between GLBT rights and religious freedom, I think of one thing: people should be free from participating in what they consider immoral behavior. Why else would there be such a thing as conscientious objectors for military service for atheists?
4.10.2008 3:20am
Allen Asch (mail) (www):
G.F. wrote:
Another case of note (also being handled by ADF) is out of Ocean Grove, NJ. There, several same-sex couples approached a Methodist group demanding to hold civil union ceremonies on the ministry property. Same deal as in Elane -- same-sex couples file a complaint with NJ's Dept. of Civil Rights, which launched an investigation and led to a loss of tax-exemption. In that case, the ACLU directly represents one of the lesbian couples.
G.F. leaves out several pertinent facts about the Ocean Grove, NJ case that does involve the ACLU making that case significantly different from the case of the New Mexico photographer that does NOT involve the ACLU. The NJ case involved two lesbian couples (not "several") who tried to RENT an outdoor pavilion on the beach that was commercially available for rental, owned by the Ocean Grove Camp Meeting Association. For more info, check out the right column of the document at: ACLU-NJ Winter 2007 newsletter

It isn't much of a leap to go from barring discrimination in Heart of Atlanta Motel to barring discrimination in another property available commercially for rental. And, personally, I agree with the holding in Heart of Atlanta Motel and don't see a need for a religious exemption to laws requiring public accommodations to be non-discriminatory. Should motel owners really be able to refuse to serve African Americans by making racism a religious belief?

In my view, the problem with the case of the New Mexico photographer that does NOT involve the ACLU is that stretching laws barring discrimination in public accommodations to a photographer is stretching the concept of public accommodations too far (plus the forced speech problem that is not implicated in a commercial rental case)
4.10.2008 3:40am
Soronel Haetir (mail):
Taxies are closer to a public utility than you make out on the basis of their rates being set. The same would hold true if the patron found a different taxi, or compared different limo service. Microsoft is free to decide their price structure much more freely.
4.10.2008 5:07am
Brian K (mail):
Taxies are closer to a public utility than you make out on the basis of their rates being set.

california regulates the price of milk, does that make milk producers a public utility? during war, the government has regulated prices, would that make those industries public utilities?

how much regulation is required to make something a public utility? does the fact that the government regulates the amount of fat in butter make butter producers public utilities? that indirectly regulates price. if regulation is all that is required to make something a public utility then practically everything is a public utility.
4.10.2008 5:33am
lpc (mail):
Brian K, the government provides a limited number of taxis and sets their rate, essentially guaranteeing a profit. In exchange, the taxis must take all comers. If you arrive at an airport at 3:00 am and there are only two taxis there, and neither will take you, you're in big trouble, which is why, in theory, regulation of this sort is justified (and why, similarly, inns, railroads, and other enterprises that may have a monopoly affecting travelers always had an obligation to accept all comers, and were subject to extensive regulation even in laissez-faire days). By contrast, there is no monopolistic shortage of wedding photographers, and even if there was, this hardly constitutes a crisis situation justifying government coercion contrary to someone's religious scruples. In other words, the reason Muslim taxi drivers must take passengers with alcohol is not because it doesn't violate their religious scruples, but because the job description of taxi driver necessarily includes the willingness to take such passengers.

If you want a legitimate analogy, forget the cab drivers and try a Muslim photographer who refuses to take photos at any wedding party featuring alcohol or where pork is served, or, better yet, a Jewish photographer who refuses to do Hindu weddings because they involve what he considers to be "idol worship". Yes, that should be allowed, for both religious freedom and expressive freedom reasons, though a Jewish taxi driver who refuses to take Hindus who are (or may be) carrying idols should not be.
4.10.2008 6:11am
Soronel Haetir (mail):
I won't address other industries here but I will argue dairy. While few producers do so, there are ways to inject dairy products into the market free from those controls. Such outfits tend to be small and local but they do exist.

OTOH most cities that I'm aware of strictly limit the number of taxies. There is no way to inject a taxi service outside the purview of the taxi regulation scheme.

I currently own a retail business in an alalagous market, a While I would not count my state's regulations as making the business a public utility I would argue that the schemes other states have adopted would. (Ignoring the fact that 'utility' is a strange word to apply to liquor stores.)

(I say my state's regulations don't rise to that level because the state does not require any particular price strucure, does not artifically limit the product I may sell and does not mandate what days I may or may not open.)
4.10.2008 6:13am
lpc (mail):
Freddy:
If you follow Volokh's posts, you see he is basing his argument on freedom of expression more than, but not exclusive to religious freedom. So if you ask how can you support the photographer but not the cabbie, one answer is that the former has a freedom of expression claim, the latter doesn't.
4.10.2008 6:19am
David Schwartz (mail):
lpc: You don't think the cabbie could/would be sued if he refused to talk to all Hindus?
4.10.2008 6:44am
Arkady:
DB writes:


Here, Elane wasn't refusing service to gay people, it was refusing to photograph a particular event that conflicted with the owners' religious ideology.


Uh, because it was a gay ceremony.
4.10.2008 7:31am
Brian K (mail):
Ipc,

In exchange, the taxis must take all comers. If you arrive at an airport at 3:00 am and there are only two taxis there, and neither will take you, you're in big trouble, which is why, in theory, regulation of this sort is justified
while nice sounding in theory, this doesn't hold up to reality. the practicality of alternatives has been not been used as a reason to force other people to perform services against their will. a pharmacist is allowed to refuse to provide plan B or other forms of emergency contraceptives even if no other pharmacist is practically available to dispense the medication. a doctor is permitted to refuse to perform an abortion or write a prescription for emergency contraception even if the person has no practical alternative. while in some cases codes of ethics may bar these refusals, the ethics do not have the force of law and in many cases state law explicitly allow such refusals.

as to your hypothetical, the worst that happens is that you wait a while at the airport until dispatch sends a taxi that will carry liquor. a short wait hardly seems like a reason to force someone to go against their religion.

even if there was, this hardly constitutes a crisis situation justifying government coercion contrary to someone's religious scruples.
what makes travel so much more important that documenting a once in a life time event? and who gets to decide? why should taxi services be exempt from religious exemptions generally applied to other fields? as i noted above, travelers have many other options. especially since many rental car companies allow late pick up and drop off or operate 24/7 at airport locations.

In other words, the reason Muslim taxi drivers must take passengers with alcohol is not because it doesn't violate their religious scruples, but because the job description of taxi driver necessarily includes the willingness to take such passengers.
how so? i frequently looked at the want ads during my undergraduate years, however i have never seen an ad for "taxi driver wanted, must be willing to take passengers carrying alcohol" (granted this was in LA and not MN). it is also fairly well documented that taxi drivers generally avoid picking up blacks and minorities, yet i don't see any laws forcing them to do so or charges brought against a cabbie who discriminates. this also directly contradicts how other religious exemptions are applied. e.g. a pharmacist's job is to dispense medication that is properly prescribed...yet they can still refuse to dispense RU-486.


--------------------------------

Soronel,

OTOH most cities that I'm aware of strictly limit the number of taxies. There is no way to inject a taxi service outside the purview of the taxi regulation scheme.
I would have to disagree here. while i don't live on the east coast, i am a relatively frequent traveler there. every visit so far i have managed to get into unlicensed taxi and/or taxis that do not follow the regulations. as a result it does not strike me as particularly difficult to operate outside of the regulations.

(Ignoring the fact that 'utility' is a strange word to apply to liquor stores.)
it is also strange to apply it to taxis. for the record, i oppose most state liquor laws. however, i do believe that if you are going to have a law it must be applied equally...and that this requirement applies to religious exemptions.
4.10.2008 7:47am
IANAL:

taxis are essentially a regulated public utility that gets a monopolistic license in exchange for its obligation to serve the entire public


So we're going to force you to get a license, and in exchange, you have to give up your religious freedom?
4.10.2008 8:07am
Bad (mail) (www):
"G.F. leaves out several pertinent facts"

Stop the presses: you mean "Stop the ACLU" is giving readers a misleading, highly edited version of a case? That's never happened before. At least in the last hour or so.
4.10.2008 8:23am
G.F. (mail) (www):
Allen Asch—

You accuse me of providing an incomplete account of the Ocean Grove case, yet you have done nothing but repeat the ACLU's argument (no possibility at all that the ACLU is presenting this case in their own special way, of course). The ACLU description of the worship pavilion at OG is dubious — the pavilion is and always has been private property used ONLY for events that DO NOT violate the mission and religious tenets of the ministry. Would you argue that the ministry should be forced to hold a seance or a Wiccan service on its own property as well?

A more reality-based account of that case HERE.


(Side note: I spoke with the attorney on this case several months ago and in fact, a total of FIVE same-sex couples applied to use facilities at OG, with one even applying to use its CHAPEL. Only two ended up filing complaints.)

It's probably worth a call to the ACLU-NM about this just to settle the question, no? I am willing to give them credit if they are on the right side of this. Are you Allen, willing to criticize them if they aren't or do you think the "right side" in this case is to coerce photographers to take photos of events and behavior that runs counter to their faith?
4.10.2008 10:07am
lpc (mail):
Pharmacists are in fact required to write prescriptions regardless of religious scruples. If it were up to me, I'd try to work around even the taxi scenario when possible, but our legal system has long recognized special obligations, and special privileges, for "common carriers", which simply don't apply to ordinary businesses. The original point was that it's hypocritical to think that Elane should have the right to refuse to do Christian weddings, but cab drivers should not have the right to refuse alchohol carrying passengers. It's now been shown that one can distinguish these scenarios based both on the common carrier/public utility status of cabs, and because of the expressive interests involved in photography. You may not find these distinctions persuasive, and some true libertarians will want to get rid of all gov't involvement in all of them (though some follow old common law distinctions about monopoly et al) and support freedom of association regardless of expressive interest; some socialist types would do the opposite. But it's one thing to say "I don't happen to find this persuasive" and another to say "no reasonable person would find it persuasive", and only the latter would support a charge of hypocrisy.
4.10.2008 10:14am
gattsuru (mail) (www):
Pharmacists are in fact required to write prescriptions regardless of religious scruples.


Really? Last I checked, in many states that's not the case. Moreover, I've yet to see a prescription that involved creating a work of art, making it not only a false statement, but a poor metaphor.
4.10.2008 10:23am
Bob from Ohio (mail):

forced speech problem that is not implicated in a commercial rental case


A religious group rents space to the public. However, it does not want to appear to endorse beliefs that are against its beliefs. Why is it not forced speech to make them rent space?
4.10.2008 11:13am
Angus:
G.F.,
You are still presenting only a half-picture of the case. NJ is not forcing the Methodist church to host gay weddings. The issue is that the church was claiming a tax deduction on the pavilion available only to buildings available for recreational use and rental to the general public. NJ investigated and said that, because the church discriminates in the renting of the facilities, they no longer qualify for the public tax break. No arrests, no forcing the church to hold gay weddings.

Link
4.10.2008 11:39am
Brian G (mail) (www):
EIDE said:


The ACLU(American Criminal Liars Union) decides what's a civil liberty by fiat.


You are incorrect. The ACLU stands for "Anti-Christian Liberals Union." Get it right.

May I live long enough to see the day that the ACLU defends Constitutional rights over gay rights.
4.10.2008 12:15pm
G.F. (mail) (www):
"NJ is not forcing the Methodist church to host gay weddings."

Tricky way to put it, which highlights the deviousness of the whole thing. The complaint was filed because the ministry declined to promote homosexual behavior on its private property. The ministry lost its tax-exemption for the portion of its property (the worship pavilion) on which it declined to host same-sex ceremonies.

Of course the ministry leaders were not arrested, but they were punished for for operating their ministry according to the tenets of their faith. The state is actually making the argument that it is not sure whther or not Ocean Grove Camp Meeting Association is a religious organization in carrying out this clear violation of the First Amendment. It's a ridiculous obfuscation attempt because EVERYONE knows that the OGCMA is and always has been a religious organization. What this says is that the state knows it's on shaky constitutional ground once this leaves the hands of the extra-judicial DCR and state courts and eventually gets to federal court, which is where it will likely end up.
4.10.2008 12:30pm
Brian K (mail):
lpc,

is you last statement meant to apply to me? if it is you spend most of your post debated a charge i didn't make.
4.10.2008 2:32pm
Jiminy (mail):
G.F, you are turning the point on its head. The Camp Association is trying to stop the N.J. discrimination investigation by saying that the CA is a religious org and so its actions are 1st Amend protected. N.J. is looking to keep the case out of a federal court stating that it's a state matter.

And if N.J. is handing out the money via the Green Acres application, why can't they say who gets the money and any conditions? The CA is trying to have it both ways; very simple. They want a state-budget-based tax break based on making private land available to the public, then they want to decide who is the "public" that can use that specific land (the pavilion in question).

N.J.
4.10.2008 3:15pm
Dilan Esper (mail) (www):
has represented clients seeking to force religious organizations to comply with antidiscrimination mandates that conflict with their beliefs, going as far back to the Bob Jones case in 1983

I love Professor Bernstein. I really do. He's a great writer and can be very persuasive.

But this is an example of a libertarian not realizing when his ideology is about to drive him off a cliff.

Yes, it's so horrible! The ACLU actually wanted Bob Jones University-- one of the truly awful and contemptible organizations of our time-- to stop discriminating against black people. And you know what, they eventually did, and nobody's free speech rights suffered.

Only die-hard libertarians think this was anything other than a good thing.
4.10.2008 3:19pm
Clayton E. Cramer (mail) (www):

Yes, it's so horrible! The ACLU actually wanted Bob Jones University-- one of the truly awful and contemptible organizations of our time-- to stop discriminating against black people.
Yes, right up there with al-Qaeda, the Klan, Aryan Nations, and the Rev. Fred Phelps.

I can't hold Bob Jones U. in anything but contempt, but you are so off your rocker when you make a statement like the one above.

And you know what, they eventually did, and nobody's free speech rights suffered.
Except the free speech rights of Bob Jones U. I'm sure that you were screeching up a storm when Congress discussed cutting off funding to the National Endowment for the Arts because of "Piss Christ" about the dangers to free speech.

Liberals don't believe in free speech--except for those they agree with.
4.10.2008 4:36pm
Colin (mail):
Liberals don't believe in free speech--except for those they agree with.

Conservatives, on the other hand, eat puppies and babies with relish. While Libertarians freely consort with those those horrible baby-eating conservatives and the speech-hating liberals, making them the worst of all.

Was this thread really so boring that you felt the need to troll, Clayton?
4.10.2008 6:17pm
Clayton E. Cramer (mail) (www):

Was this thread really so boring that you felt the need to troll, Clayton?
Answer this question: do you believe that "Bob Jones University" an college that didn't allow interracial dating among its students is "one of the truly awful and contemptible organizations of our time"? In the same category as al-Qaeda, the Klan, Aryan Nations, and the Rev. Fred Phelps? Or are those not really any worse than Bob Jones University?
4.10.2008 6:39pm
Colin (mail):
"[O]ne of the truly awful and contemptible organizations of our time" is such a broad statement as to be essentially meaningless. But it's not nearly as broad as "[l]iberals don't believe in free speech."

I've said it before, and it seems pretty likely that I'll say it again: there are some pretty smart people who seem to think that you have intelligent things to say about topics like the history of gun ownership. You squander that vicarious credibility when you behave like a ranting internet crackpot. Please, sir, grow up.
4.10.2008 7:11pm
Colin (mail):
Excuse me, I forgot to answer your question. No, I don't believe that BJU is worse than al-Qaeda. I do think it's worse than the Westboro Baptist Church. But these comparisons are well outside the scope of the comment that you're pretending justifies your trolling. The original author didn't say that BJU is "one of the most awful and contemptible organizations of our time," just one of "the truly awful." It seems like an exercise in pure sophistry to attempt to split hairs as to whether an organization that you admit is contemptible can be said to be "one of the truly . . . contemptible organizations of our time."
4.10.2008 7:17pm
Ryan Waxx (mail):
I see. So when CC calls attention to wild hyperbole, that's "trolling". But when you behave exactly the same way "ranting internet crackpot...", why that's the very mark of a grownup.

er... ok.
4.10.2008 7:48pm
Colin (mail):
I have not said that Clayton can't make wild, inane comments. I have only pointed out that he loses all credibility when he tears off on his signature rants about evil liberals, the ACLU, and California. If you think that I'm a crackpot myself for deriding the statement "[l]iberals don't believe in free speech," then you may give me exactly as much or as little credibility as you think I deserve.

For what it's worth, it appears that Clayton agrees with Dilan Esper's point. Dilan called BJU "one of the truly awful and contemptible organizations of our time." Clayton says that he "can't hold Bob Jones U. in anything but contempt." We could split hairs and try to find what Clayton thinks is wrong with Dilan's characterization - that BJU is truly contemptible? that it's awful? that it's an organization? - but that would be sophistry. What set Clayton off is what always sets Clayton off: seeing the word "ACLU" in print.
4.10.2008 8:30pm
David M. Nieporent (www):
Yes, it's so horrible! The ACLU actually wanted Bob Jones University-- one of the truly awful and contemptible organizations of our time-- to stop discriminating against black people. And you know what, they eventually did, and nobody's free speech rights suffered.

Only die-hard libertarians think this was anything other than a good thing.
Yes, people who care about freedom and civil liberties think it was a bad thing; people who don't think it was a good thing.

Oh, and people who care about the rule of law think it was a bad thing, since the court had to ignore the plain language of the statute to rule against an unpopular party.
4.10.2008 9:19pm
Dilan Esper (mail) (www):
Oh, and people who care about the rule of law think it was a bad thing, since the court had to ignore the plain language of the statute to rule against an unpopular party.

It was an 8-1 decision, David. Even the conservatives on the court didn't think the "plain" language so clearly favored BJU.
4.10.2008 10:53pm
David M. Nieporent (www):
Dilan, what conservatives on the court? Rehnquist, and he was the "1." Powell admits that the plain language favored BJU, but decided to ignore it anyway. The Burger opinion simply ignored the language of the statute, citing Congressional inaction as evidence of Congressional intent, even while admitting that Congressional inaction really was a bogus criterion, but ignoring the fact that "Congressional intent" is irrelevant when the language is clear.

The statute says, "educational or charitable," and the court deliberately, for political reasons, misread it as "educational and charitable."

This wasn't exactly the heyday of textualist judges; it was the pre-Scalia, Brennan-Marshall court.



Incidentally, I wonder how many of the plaintiffs in FAIR v. Rumsfeld realized that their arguments would have overruled the BJU decision, if the Court had accepted them. (If the government can't punish schools that flout public policy by taking away government grants, it surely can't punish schools that flout public policy by imposing extra taxes on them.)
4.11.2008 11:34am
Dilan Esper (mail) (www):
Dilan, what conservatives on the court? Rehnquist, and he was the "1." Powell admits that the plain language favored BJU, but decided to ignore it anyway. The Burger opinion simply ignored the language of the statute, citing Congressional inaction as evidence of Congressional intent, even while admitting that Congressional inaction really was a bogus criterion, but ignoring the fact that "Congressional intent" is irrelevant when the language is clear. The statute says, "educational or charitable," and the court deliberately, for political reasons, misread it as "educational and charitable." This wasn't exactly the heyday of textualist judges; it was the pre-Scalia, Brennan-Marshall court.

To hang it all on an and/or distiction is quite a thin reed, David. Lots of statutes use "and" and "or" in vague fashion. I would suspect that the same case would have come out the same way today-- the "political" reason that you deride is the abiding conviction that Congress did not intend to deny the IRS the power to strip a racist institution of its tax deduction.

The fact is, even if your textual analysis of BJU is right and conservatives like Burger, Powell, and White were all wrong, this would be nothing more than a classic case of legal realism-- of course Congress didn't want to deny the IRS the power to keep our tax dollars from subsidizing bigots hiding behind caps and gowns, so they interpreted the statute with that in mind. It was 8-1 for a good reason (and Rehnquist, the dissenter, of course had a long record of not thinking too highly of the civil rights movement in the first place, so perhaps he had his own legal realism at work).
4.11.2008 1:41pm
David M. Nieporent (www):
Congress "intends" what it enacts, not what someone wants it to enact, or thinks it should have enacted, or thinks it would have enacted if it had thought about it. The language of the statute was clear; educational institutions were entitled to tax exemptions.

Were the Court to rule properly, I suspect that it would take about 5 minutes for Congress to change the law -- but that's okay; that's the way it's supposed to work. The Court isn't supposed to anticipate that its decision will be unpopular and thus decide to make a more popular one.
4.12.2008 3:58am
Dilan Esper (mail) (www):
Congress "intends" what it enacts, not what someone wants it to enact, or thinks it should have enacted, or thinks it would have enacted if it had thought about it. The language of the statute was clear; educational institutions were entitled to tax exemptions. Were the Court to rule properly, I suspect that it would take about 5 minutes for Congress to change the law -- but that's okay; that's the way it's supposed to work. The Court isn't supposed to anticipate that its decision will be unpopular and thus decide to make a more popular one.

David:

The Court stripped a tax exemption from an evil institution. As a result, our tax dollars would not go to subsidize it until it changed its behavior. If Congress thought this was really contrary to legislative intent, they could have reversed it, and Reagan was on the wrong side of this issue (he supported BJU in the court action) and he probably would have signed the bill.

Let's not be a purist about statutory interpretation here. There's only two reasons to get upset about the BJU decision-- (1) bigots can get upset that a bigoted institution was forced to change its policies, and (2) the most extreme type of libertarians, who may oppose bigotry seem to be personally bothered that any bigot might have to change his ways. There's no good reason to join either of these groups, and 8 Supreme Court justices didn't feel the need to do so. The only one that didn't was the one who wrote the memo that said that Brown v. Board of Education should have come out the other way, so that ought to tell you something.

Again, there's a reason this was 8-1 on a relatively conservative court.
4.14.2008 2:06am