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), 22 Dec 2013 @ 5:09pm

    Re: Re: Re: Re: Re: Re: Re: Love is not Marriage

    'to gain equal legal recognition and tax benefits'

    You missed a word there.

    Marriage, at least as recognized by the state, has nothing to do with how many babies the couple can pump out. When filing for a marriage license, last time I checked they don't ask the prospective couple how many kids they plan on having and how soon, and deny them the license if the answer is anything other than 'as many as possible'.

    I take it then that you'd be agreeable in restricting or removing the rights for infertile couples to get married? Anyone who might be too old to have kids? Anyone who for whatever reason doesn't want kids?

    Yeah, have fun trying to justify those changes to the law...

    However, assume that argument makes sense, that the sole justification for marriage is to create and raise children, your argument would still be invalid, for a very simple reason: infertile couples can still adopt and raise children.

    Also, love isn't a valid reason to want to get married and spend the rest of your life with someone? Most people from your own religion would probably boo you out of the room if you tried to make that argument, and even if they did agree with you, other groups, other religions, have different views contrary to that, and the US isn't a country ruled by a religion, certainly not by one religion, so your religious views, have no business dictating what others can do.

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