ACLU on wrong side of wedding photographer case

by Walter Olson on November 22, 2013

I’ve got a new post at Cato asking how that could have come to be. Earlier on Elane Photography v. Willock here, here, etc.

Reacting to my Cato post, a couple of readers have responded, in effect: Isn’t the ACLU just a doctrinaire Left-liberal organization these days, rather than a bulwark of civil liberties? To which my answer is: I’d describe it as an organization with lively internal divisions, some factions of which push it in a doctrinaire Left direction, others of which want it to be more of a robust civil liberties organization. (As witness last year’s “Mayors vs. Chick-Fil-A” controversy, in which the ACLU of Illinois took a strong and clear civil libertarian stand while the ACLU of Massachusetts seemed to lean more toward a doctrinaire-Left position.) Some speak ironically of the “civil liberties caucus” that soldiers on thanklessly within the ACLU. I want to encourage that caucus and let it know it is appreciated. (& Stephen Richer/Purple Elephant, Coyote).

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1 Jay Markowitz 11.22.13 at 1:44 pm

The civil liberties caucus was the dominant division when the ACLU rightfully came out in agreement with SCOTUS on ‘Citizens United,’ which was cause célèbre, so what the heck is going on internally that allows a ‘judicial activism’ type decision on this matter that inherently goes against the ACLU’s stated mission to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States ?

Perhaps each office is not under presumed ‘national’ management but sold as a franchise, with only certain benefits and restrictions under the ACLU brand. Tis’ more lucrative/competitive than buying a Subway sandwich store or Midas muffler shop?

2 Allan 11.22.13 at 2:40 pm

I think this is a tough call, though not for the ACLU. If the ACLU’s main focus is the first amendment, they should be on the other side.

However, there is a tension, where the first amendment comes up against another amendment, who wins? What if my religion mandates slavery? Does the 1st or the 13th amendment right win?

What if my first amendment rights conflict with another person’s first amendment rights? Who wins?

3 Mannie 11.22.13 at 7:19 pm

I don’t think a religion mandating slavery is an apt analogy to a religion objecting to a practice.

For me the issue is one of creative artists’ rights. It’s one thing to compel people to sell hamburgers or sport coats to someone they disapprove of. It is another thing to require an artist to employ their creativity to extol something they find reprehensible. How about requiring a Jewish writer to write a Eulogy of Adolph Hitler, and be potentially subject to breach of contract liability if he does a lousy job of it?

4 gasman 11.22.13 at 8:19 pm

Can a gay couple decline to have Elane Photography shoot their wedding?
Should gays be required to shop in a viewpoint neutral manner?

If 10% of the world is gay, and less than that are visiting my business, then perhaps it is me who is being unfairly discriminated against.

5 William Nuesslein 11.23.13 at 10:10 am

The free market has a wonderful solution to the problem. The betrothed could just get a competitor. Government intervention is necessary only in cases of monopoly.

6 Mike 11.25.13 at 11:05 am

Well, no, Mr. Nuesslein. The true purpose of public accommodations laws being used in this way is not to obtain a service, but to bludgeon those who do not believe in the latest elite position on gay rights.

7 Jack Wilson 11.25.13 at 11:18 am

No business is required to do business with me.

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