New WSJ op-ed by Eugene Volokh and my colleague Ilya Shapiro, with which I agree 100%: “We support the extension of marriage to same-sex couples. Yet too many who agree with us on that issue think little of subverting the liberties of those who oppose gay marriage. Increasingly, legislative and judicial actions sacrifice individual rights at the altar of antidiscrimination law.” Existing precedent affords a handy if narrow way to reverse New Mexico’s wrong-headed Elane Photography decision: “The Supreme Court’s ruling in Wooley guarantees the right of photographers, writers, actors, painters, actors, and singers to decide which commissions, roles or gigs they take, and which they reject.”
Related on bake-my-cake laws: in the absence of more robust rights to freedom of association, could we at least narrow what’s a public accommodation? [Scott Shackford, Reason; David Link, Independent Gay Forum (on precedent of landlord reluctance to rent to cohabitors] Earlier on photography and cake cases here, here, here, here, here, here, here, here, etc.
P.S. Cato podcast with Caleb Brown interviewing Ilya Shapiro on the topic.
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).
“Shannon Renee McNeal was torn from her screaming children by police who were seeking a woman with a similar name — a woman who they should have known had been murdered seven months before.” [St. Louis Post-Dispatch via Radley Balko]
More of the week’s awful-police-happenings coverage: Atlantic City beating and canine attack [Tim Lynch, Cato]; Ames, Ia. police shoot and kill son after dad calls to report he’s taken truck without permission [Des Moines Register]; “Man Dies In Jail Cell After Misdemeanor Pot Offense” [Snohomish County, Wash., severe allergies; Radley Balko again]; New Mexico man’s lawsuit alleges “worst traffic stop ever” [Jalopnik, Popehat, Lowering the Bar and more, Orin Kerr, Michelle Meyer/Faculty Lounge]
In Elane Photography LLC v. Vanessa Willock, the New Mexico Supreme Court has unanimously ruled that a wedding photographer is obliged under the state’s anti-discrimination law to offer its services to two women seeking to record their commitment ceremony, despite its proprietors’ religious objections to the ceremony. The Court was not persuaded by an amicus brief filed by UCLA lawprof Eugene Volokh on behalf of the Cato Institute arguing that the First Amendment protects persons in expressive occupations such as photography from being obliged to create expressive works they don’t want to create. Commentary: Dale Carpenter, Ken at Popehat, Hans Bader, John Fund, Ilya Shapiro/Cato at Liberty, Stephen Richer.
Albuquerque: “The wife of an armed robbery suspect shot dead by a shop clerk said the clerk was wrong, and now she has filed a civil lawsuit claiming wrongful death….’He [deceased robber Ramon Sedillo] does bear some fault, but it’s like a pie. You divide out the fault accordingly, and [store clerk Matthew] Beasley could have done something different,’ [Sedillo family lawyer Amavalise] Jaramillo said.” [KRQE]
“A repeat drunken driver convicted in a crash that killed two teenagers has sued his drinking buddy and two Santa Fe restaurants that served him alcohol.” James Ruiz, who has since been convicted and incarcerated, “was out on bond on his fifth DWI arrest” when he slammed into the car of the teens’ family. [AP/WHEC; Albuquerque Journal, with headline above; UPI]
I’m pleased to report that I filed a friend-of-the-court brief, on behalf of the Cato Institute, Dale Carpenter, and myself, arguing that wedding photographers (and other speakers) have a First Amendment right to choose what expression they create, including by choosing not to photograph same-sex commitment ceremonies. All the signers of the brief support same-sex marriage rights; our objection is not to same-sex marriages, but to compelling photographers and other speakers [to create] works that they don’t want to create.
As Ilya Shapiro explains further at Cato, the litigation before the New Mexico Supreme Court hinges in substantial part on whether the photographers are entitled to claim religious-liberty protection against the discrimination claim, but the Cato amicus brief advances a distinct alternative theory under which they deserve to prevail:
Our brief explains that photography is an art form protected by the First Amendment because clients seek out the photographer’s method of staging, posing, lighting, and editing. Photography is thus a form of expression subject to the First Amendment’s protection, unlike many other wedding-related businesses (e.g., caterers, hotels, limousine drivers).
The amicus brief in Elane Photography v. Willock is here; I’m happy to say I played a bit part in helping to advance it. Earlier on the case here, here, and here; and more from George Will.
Pay up, EEOC tells a cafe owner, for not taking on a hearing- and speech-impaired applicant for a cashier’s position [EEOC press release (Albuquerque's Savory Fare Bakery and Cafe agrees to pay $20,000 and offer other relief), h/t Roger Clegg; related on cases where concern about cross-intelligibility between employee and customers leads to charges of "accent discrimination"] (& Bader, CEI; Scott Greenfield)
More: Alexander Cohen at Atlas has the complaint and answer, along with further analysis.
If you don’t pay your traffic-cam tickets, the city of Las Cruces, New Mexico says it will cut off your water and sewer service. [The Newspaper]
…break and enter into the house of your client’s husband to retrieve her possessions [Albuquerque lawyer Raymond Van Arnam, fined, sentenced to weekend jail time and ordered to pay restitution, but not deprived of his law license, on charges of misdemeanor criminal trespass and misdemeanor larceny; Above the Law]
Checking out a published report, Erik Magraken contacted former New Mexico state senator Duncan Scott and found that it was true, the lawmaker had indeed introduced a legislative amendment in 1995 providing that:
When a psychologist or psychiatrist testifies during a defendant’s competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts. Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant’s competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong…
The amendment — intended satirically, one should hasten to add –”passed with a unanimous Senate vote” but was removed from its bill before consideration by the state house and never became law. (& Coyote, Above the Law)
The anti-obesity campaign isn’t the only policy initiative that’s leading to regulatory scrutiny of high school bake sales. There’s Title IX and its state equivalents, too:
Controversy in New Mexico continues over booster club funding and Title IX implementation as discussion heats up over the state’s Schools Athletics Equity Act. The issue remains whether private donations raised by parents through bake sales and working concession stands, or whether philanthropic contributions by private businesses, should be pooled together and distributed among all boys and girls teams under the guise of Title IX equality — and regardless of which parents/teams raised what.
Not surprisingly, many expect volunteerism to droop if the chance to raising funds for your team’s road trip or new equipment is replaced by a new rule prescribing that you can only raise money for school sports generally and hope that some fraction gets passed through to your team. [Deborah Elson, Saving Sports; earlier on booster clubs]
Lawsuits fly in various directions arising from almost implausibly colorful fact patterns (“professor-dominatrix”) at the University of New Mexico English department [Chronicle of Higher Education]