Unfortunate: ACLU On The Wrong Side Of A Free Speech Case

from the really-now? dept

Let me start this off by making two things clear, even though I don't think it should matter for this story. First, I strongly support the rights of gays and lesbians to marry if they choose to. In fact, I find it both depressing and shameful that this is even a debate today or that people have had to fight to change laws to make this possible. And I look forward to the time in the (hopefully) not too distant future, where the world looks back on the fights against allowing such a thing and recognizes it for what it is: a dark day in our history, in which governments were trying to tell people who they can and cannot love.

Second: I'm a big, big supporter of the ACLU and I think they (normally) do amazing work protecting our civil liberties -- even in situations where others might shy away. I know many people who work there, and consider them friends. The reputation of the ACLU in taking on cases in which they support individuals or groups with abhorrent positions is a very good thing -- such as the very famous case of the ACLU defending the rights of neo-Nazis to march in Skokie, Illinois. It is possible to defend the free speech rights of those whose views you find morally abhorrent. And the ACLU has a pretty good track record of doing that.

So I'm left confused by the news that the ACLU is on what I believe is the very wrong side of a case involving a photographer who has a moral objection to gay marriage, and has refused to photograph their weddings. Personally, I think that photographer Elaine Huguenin is on the wrong side of history with her views on gay marriage. But I have tremendous problems with the idea that a New Mexico law against discriminating against gays and lesbians automatically requires her to photograph their weddings and to then "tell their story." Huguenin argues that forcing her to tell their story when she doesn't want to do so violates her First Amendment rights against compelled speech.

Of course, I also think that there's a First Amendment right for everyone else to explain why they shouldn't want to hire Huguenin in the first place for holding such views. But it's disappointing to see the ACLU on the other side, and actually willing to argue that the First Amendment is somehow "less important" than making Huguenin photograph a wedding she doesn't want to photograph. That's what the ACLU's Louise Melling told the NY Times:
There are constitutional values on both sides of the case: the couple’s right to equal treatment and Ms. Huguenin’s right to free speech. I asked Louise Melling, a lawyer at the American Civil Liberties Union, which has a distinguished history of championing free speech, how the group had evaluated the case.

Ms. Melling said the evaluation had required difficult choices. Photography is expression protected by the Constitution, she said, and Ms. Huguenin acted from “heartfelt convictions.”

But the equal treatment of gay couples is more important than the free speech rights of commercial photographers, she said, explaining why the A.C.L.U. filed a brief in the New Mexico Supreme Court supporting the couple.
Except, as Reason rightly points out, that's not true. there aren't Constitutional issues on both sides.
... the Constitution guarantees equal treatment by the government, not by private individuals or organizations. The 14th Amendment cannot justify requiring photographers to treat all couples equally any more than the First Amendment can justify requiring publishers to treat all authors equally. By erroneously suggesting that deciding Huguenin's case means choosing between competing "constitutional values," [the NY Times] lends cover to the American Civil Liberties Union, which in this case is arguing that Huguenin's civil liberties should be overridden by a principle that cannot be found in the Bill of Rights...
So while I strongly support equal rights for everyone, and am greatly saddened that people out there are still opposed to things like gay marriage, I'm equally troubled by the idea that the government can force someone to express themselves in a manner that they are uncomfortable doing. The government absolutely should be required to treat everyone equally and not discriminate on the basis of who they're attracted to. But it's going way too far to argue that a private business should be forced both to do business with someone, but also to create expression that they personally disagree with.

And, yes, there is a reasonable concern that allowing a photographer (or someone in another profession) to discriminate the services they provide is an obnoxious and discriminatory practice -- but it's one that is rather easily solved without government compelled work and speech: just by letting the world know of the photographer's views, which would hopefully have a negative impact on her business. Compelling her to speak, on the other hand, is tremendously problematic. And it seems to go against most things that I thought the ACLU stood for.


Filed Under: first amendment, free speech, gay marriage, new mexico
Companies: aclu


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  1. icon
    That One Guy (profile), 21 Dec 2013 @ 6:06pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: It is complicated...

    Well for one thing, we're not in public schools under the banner of anti-bullying and tolerance to brainwash other people's children to "tolerate" us.

    Yes, of course, teaching children scientifically backed facts regarding homosexuality and how it doesn't turn someone bad or indicate that there's something 'wrong' with them is 'brainwashing in tolerance'. /s

    Second, whatever religious values parents decide to instill in their children is none of your business.

    That would be true only if those 'religious values' weren't having a negative impact on others around them. If a particular family/group wanted to teach their children that (pulling a hypothetical example out here) a particular fruit was special because it was 'God's favorite' or something, no one would likely care.

    If, on the other hand the 'religious values' they were teaching their children was something along the lines of 'People from group X are bad people, sinful people, and you should avoid them', then you better believe people are going to object to that, because suddenly it's affecting them too, which makes it their business.

    Lastly, Christianity doesn't teach us that it's acceptable to hate the person, only the sin, because (we believe) we're all sinners.

    Which is a meaningless distinction here as you're also teaching children that homosexuality is a choice, and therefor those that are homosexual have chosen to 'sin' and are therefor sinful/bad people. How is that not supposed to lead to them thinking worse of, if not actively hating, homosexuals?

    Show me all the curriculum in public schools where Christians are brainwashing children.

    Ah I see, it's 'education' when you agree with it, and 'brainwashing' when you don't...

    Though I wouldn't go so far as to call it 'brainwashing', the religious have certainly had an affect on schooling, with the two most obvious the repeated attempts to try and shove religion masquerading as science into the classroom in the form of 'ID' or 'Teach the controversy', and hamstringing effective sex education by objecting to anything other than 'Abstinence Only'(with the completely expected results of higher teen pregnancy and STD rates).

    It's hard fact that that STDs and urinary tract infections are more prevalent among homosexuals. Homosexuality isn't a sin; homosex is.

    If it's a 'hard fact', present the facts, because I seem to recall the last time STD's and gender orientation came up Karl(or another commenter, can't remember exactly offhand) pointed out that the rates were more along the lines of, highest in homosexual males, lowest in homosexual females, with heterosexual couples being in the middle. Assuming that's accurate, there is a common link between the rates, but it's not sexual orientation.

    Another explanation for the different rates could be the still very much alive social stigma attached to homosexuality in some groups/areas, which would prevent those who thought they might be at risk, or infected, from getting the same treatment as others, for fear of their orientation becoming public, or worry about telling another.

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