Balkinization  

Sunday, August 25, 2013

Wedding Jitters

Gerard N. Magliocca

The New Mexico Supreme Court's recent opinion in Elane Photography v. Willock has garnered a lot of attention, but not for the reason that I find interesting.

For those unfamiliar with the case, a same-sex couple called a wedding photographer to shoot their commitment ceremony. (New Mexico does not recognize same-sex marriage).  The photographers at the studio refused, saying that they did not support same-sex weddings (or any equivalent) because of their religious beliefs.  The couple sued under New Mexico's anti-discrimination statute, and the state Supreme Court affirmed the judgment for the plaintiffs.  The Court rejected the photographers' state law and First Amendment defenses (freedom of speech and free exercise).  Some see this as an affirmation of gay rights, while others see it as detrimental to freedom of speech.

I see this as an excellent opportunity for the U.S. Supreme Court to revisit its holding in Employment Division v. Smith, which I believe was wrongly decided.  The New Mexico Supreme Court relied on Smith in rejecting the photographers free exercise claim.  The state anti-discrimination statute, the Court concluded, was a neutral law of general applicability.  As a result, that law did not violate the Free Exercise Clause under Justice Scalia's analysis in Smith.  Now people can quibble with this reasoning.  The photographers contended that the state law was neither neutral nor generally applicable and that the case fell under the "hybrid rights" exception in Smith.  If these objections and the free speech claim are deemed meritless on appeal, however, then the Court could reach the issue of Smith and stare decisis.

I hope the Justices take up this question.  It is worth adding that Willock would not fall along the usual left/right lines.  Some of the liberal Justices have criticized Smith, but would otherwise be inclined to support the same-sex couple.  Meanwhile, Justice Scalia wrote Smith, though reaffirming that decision would probably require him to rule against the photographers.

 

Comments:

"Some of the liberal Justices have criticized Smith, but would otherwise be inclined to support the same-sex couple."

But Smith is not a right-wing decision, despite Scalia's authorship. Nor is it a left-wing decision. It involves a tension between the Free Exercise Clause and the Establishment Clause. To grant a religious group an exemption from a neutral law furthers the group's free exercise, but constitutes a governmental benefit to religion.

Why do you believe that Smith was wrongly decided?
 

I for one am greatly looking forward to what I anticipate will be quite the mental gymnastics by Scalia and others who signed onto his Smith opinion when and if this case and the contraception cases come before the SCOTUS. Perhaps he will invoke something as silly as his 'monotheist religions are different' view expressed in one of the ten commandments cases. Who knows? But it might be very fun.
 

I'll raise an obvious question: for those who would support the photographer's free exercise claim, would you distinguish this case from one in which the purported religious belief was instead opposed to interracial marriage?
 

I don't.

I am wary of Smith (joined by Justice Stevens) but it raises a basic question of free exercise: an individual wishes to have an exemption of a general law to carry out a religious exercise.

The case here, as with the contraceptive mandate, is more of a clash of rights. As noted in Sherbert (cited in the first Smith case): "The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order." Here, anti-discrimination laws in public accommodations.

I am game, as is the law in my own state, to provide some protection for religious exercise (such as sacramental acts) even if it overrides general laws. But, when a general law is opposed because of religious beliefs as a whole, it is very open-ended.

I think even if Smith was decided the other way, under U.S. v. Lee (no exemptions to SS taxes for the Amish once they enter the for profit marketplace) et. al. Elane Photography (that's the correct spelling) should lose. There is a compelling interest and "public" accommodations allow for such a law, equality here balancing individual religious exercise.

It is not a good case to revisit Smith. There is a narrower holding possible and if Elane Photography loses, it opens up a whole can of worms regarding anti-discrimination law.

Anyway, Dale Carpenter discussed the ruling at Volokh Conspiracy, for those interested. And, do read the short concurring opinion.
 

SCOTUSBlog cites this as one of three leading religious cases of late:

http://www.scotusblog.com/2013/08/major-tests-on-religion-shaping-up/#more-168885
 

good post!
 

"For those unfamiliar with the case, a same-sex couple called a wedding photographer to shoot their commitment ceremony."

For those unfamiliar with the case, they emailed the wedding photographer, (And perhaps many others.) and only chose her after confirming that she objected to doing the work. (The initial email actually asked about this.) It seems to me they were more interested in finding somebody to sue, than getting photos taken.

As I see it, the issue here is NOT free exercise. It is the 13th amendment. Where does the government get off declaring a PERSON to be a "public accommodation"??? Buildings I can barely see, but PEOPLE?

The original public accommodation laws addressed a real problem: You're on a long drive, your car conks out in the middle of nowhere, and the only hotel in town refuses to rent you a room, the only diner refuses to serve you. What are you supposed to do, sleep under a bridge with your starving children?

Your car doesn't conk out, leaving you with no choice but to either compel a photographer to document an event they find objectionable, or sleep under a bridge. There's no problem here to fix, just a desire to take choice away from people on one side of a transaction, so that you can feel all noble and upright about giving the people on the other side the power to compel the unwilling to work for them.

On one side of this forced transaction, you've got somebody with the unassailable right to refuse to hire straight photographers. Why does the other side get denied this right? Because selling this loses you your rights, and buying them doesn't? Because business owners have no right not to be discriminated against?

No, I don't see this as a particularly admirable decision, more an example of the say the civil rights movement went straight from demanding freedom for their clients, to demanding others lose theirs. I do hope the Supreme court takes the case, and the photographer wins.
 

Brett's tirade closing with this:

" ... more an example of the say the civil rights movement went straight from demanding freedom for their clients, to demanding others lose theirs."

demonstrates, contrary to sports parlance, that white men can indeed jump - to conclusions that defy history. Perhaps Brett could provide us with his personal time line of exactly when demands were made for the loss of his freedom. Perhaps Brett is of the view that any gain to an African-American is a loss personal to him. Economic and social studies provide great evidence that many inequalities from Jim Crow continue. Maybe Brett personally thought of himself as King of the Hill, but now, despite his whiteness, he has to put in a little more effort to maintain his regal position. Oh, how those changing demographics hurt an injured Brett as demands on him are being made that would deprive him of his freedom. What freedom has Brett lost other than his freedom during Jim Crow to deprive African-Americans of their freedom? Perhaps there is a lesson in all this for Brett's mixed race young son.
 

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Brett,

This time I will not bother to criticize Shag's rather disgusting personal attack on you, but I will disagree with you on the merits. The distinction you make, between discrimination by hotels and diners on the one hand, and wedding photographers on the other, has some validity. But do we want the law to make that distinction? How would it do so? Would it have to poll all types of businesses in all geographic areas to determine what percentage of the business people are bigoted against what groups? There might be a town in which only 10 percent of the diners would refuse to serve blacks, but 90 percent of the wedding photographers would refuse to take pictures of gay weddings.

Also, you fail to take into account that one purpose of civil rights laws is to prevent the humiliation of victims of invidious discrimination.
 

Hank (if I can get personal again), what was disgusting about my comment? Was it the entire comment or the last sentence? Hank, you apparently don't know the "history" of Brett at this and other blogs. Of course, Hank, if you have the time you can search the archives at this Blog for a taste of Brett-ness, especially on racial issues. How is your comment, excepting its initial clause, different substantively from mine excluding the last sentence? Hank, if you'll pardon the expression, I like to call a spade a spade, or more accurately in this case a cracker a cracker.

As to my last sentence, keep in mind that Brett had the freedom to sire a mixed race son, who I believe is about 5 years old. And if you bother to search the archives, Hank, look for Brett's comments at this Blog on Fisher/TX. You will learn that Brett was critical of U of T because in his view it favored African-Americans and he wanted to make sure his mixed race son - Asian-American - would get a fair shake at U of T or other colleges that might emulate U of T policies on admissions. It was pointed out to Brett that two (2) amicus briefs were filed in support of U of T's policy by prominent Asian-American groups. So it seemed clear, at least to me, that Brett's gripe was with African-Americans and not other people of color. Now Hank, in your heart of hearts how would you describe such a person? Perhaps you believe in your heart of hearts that you can convert Brett with reasoning. Good luck to you.

Hank, I don't mind criticism, directly or indirectly. But you should do some homework on the vileness of Brett, particularly on racial issues. I fear for his young son if he is exposed to such vileness. Hank, you may believe as I do that children are not born with vile racial views, or maybe not.
 

Brett: "For those unfamiliar with the case, they emailed the wedding photographer, (And perhaps many others.) and only chose her after confirming that she objected to doing the work. (The initial email actually asked about this.) It seems to me they were more interested in finding somebody to sue, than getting photos taken."

Undoubtedly due to a formatting bug in Blogger, the link to the evidence was lost. Could you please repost?
 

As to Brett's comment, the ruling is that Elane Photography (which is contacted by emailing a person, like you would if you wanted to buy something from Sears or whatever too), not a single person, is a public accommodation, and like a supermarket, the fact there is some other public accommodation nearby where you can go instead does not allow the place to not serve the person in question. The opinion explains how the issue of it being a public accommodation was accepted at least for this level of the lawsuit.

One means of enforcing civil rights laws is for people to put places to the test. Thus, if there is a law against discriminating in rental services, people go around to see if people will refuse service. Conservatives do this too, e.g., to see if abortion providers will violate the law.

I don't think this is illegal or something and anyway it would seem to me hard to prove that is "really" what someone is trying to do. Are we going to put customers to the test to determine if they "really" want to buy something or are going to the store for some other reason?
 

Fair enough, my assertion about the email is as unsourced as Gerald's that it was a call.

Elaine Photography case PDF

Here's the first email:

"We are researching potential photographers for our commitment ceremony on September 15, 2007 in Taos, NM.

This is a same-gender ceremony. If you are open to helping us celebrate our day we'd like to receive pricing infomlation.
Thanks"

We have a fundamental disagreement here about how far anti-discrimination law ought to extend. I believe it should certainly extend so far as the Constitution demands: Equality under the law, no discrimination by government, equal protection of the law.

But I don't think it should extend so far as compelling you to work for somebody you don't like, facilitating something you disapprove of. That's not protecting rights, that's destroying them.
 

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I believe it should certainly extend so far as the Constitution demands

Anti-discrimination law is not equal to what the "Constitution demands." If a state wants to pass a law against discrimination by age or veteran status, they can, even if the state is not required to protect them by that extent.

But I don't think it should extend so far as compelling you to work for somebody you don't like

Does Brett think laws against racial discrimination in public accommodations, that "compel you to work for somebody" once you choose to have a public accommodation and a customer asks for goods or services, "destroys rights?"

That's not protecting rights, that's destroying them.

Public accommodations are "public" in nature and there to serve the public at large. In return, the public provides business & the government safeguards their interests in various ways. Historically, this includes some duty to serve customers. This was not generally seen as a threat to liberty or a violation of the principles of the 13A.

If Brett disagrees, fine, but let's be totally clear on the breadth of his principles.

[ETA: Also, since the accommodations are public, regulated specially by the state and courts enforce any right to not serve, there is a reasonable argument that they can be treated as "the state" for 14A purposes. See, e.g., Justice Harlan's dissent in the Civil Rights Cases.]
 

"Does Brett think laws against racial discrimination in public accommodations, that "compel you to work for somebody" once you choose to have a public accommodation and a customer asks for goods or services, "destroys rights?""

Yes, obviously, I do. Would it "destroy rights" if we required Willcock to hire a straight photographer, or be legally penalized? Certainly, it would! How could it possibly not destroy rights if you force Elaine to work for Willcock?

How can it destroy rights to compel one end of a transaction, but not when you compel the other end of it? Were the Freedom Riders fighting for freedom, or just the power to take freedom away from others?
 

So, despite your recognition in your earlier comment that the original public accommodation laws addressed a real problem, you would repeal them. I believe that opposition to the Civil Rights Act of 1964 is unconscionable, because it means that you consider your interpretation of the Commerce Clause to be more important than the consequences of Jim Crow to black people. Though the heavens may fall (on black people) your view of the Commerce Clause must rule. Your position is not comparable to Lincoln's position that the Constitution did not permit him to interfere with slavery in the states where it existed. That is because it clearly did not permit him to interfere with slavery in the states where it existed, whereas the Commerce Clause does not clearly preclude the Civil Rights Act of 1964. In fact, as you know, the vast majority of lawyers believes that the Commerce Clause allows it.
 

When I referred to Lincoln's position that the Constitution did not permit him to interfere with slavery in the states where it existed, I meant, of course, apart from his power as commander in chief to free the slaves in the states in rebellion -- the constitutional basis for the Emancipation Proclamation.

Also, I expressed no opinion as to whether Lincoln should have interfered with slavery despite the Constitution.
 

Brett's replies, including the link, are appreciated, especially since it clarifies his position. Like Sandy Levinson, he strongly disagrees with certain basic long held principles of law. This is fine though we can disagree on the merits.

Would it "destroy rights" if we required Willcock to hire a straight photographer, or be legally penalized? Certainly, it would! How could it possibly not destroy rights if you force Elaine to work for Willcock?

The state enforcing the 14A "destroys rights" too by denying local populations the "right" to pass laws that discriminate by race. But, we don't think they should have the "right" to do that.

How can it destroy rights to compel one end of a transaction, but not when you compel the other end of it?

Public accommodations don't have to do the same things as customers. A business and a private party are not the same thing. Individuals don't have the same rights as businesses.

Were the Freedom Riders fighting for freedom, or just the power to take freedom away from others?

Under your lights, they were fighting against freedom, since they supported requirements to end racial discrimination on buses and the like. Under your argument, Rosa Parks was trying to take away the "right" of local bus companies to refuse to "work" for black passengers. Ditto local Woolworths.

But, historically, there was no unlimited "right" to deny serve in public accommodations. It is part of the public and unlike nature, the public does not have some unlimited power to do things. You aren't forced to set up a public accommodation. If you do, you have to follow anti-discrimination laws.
 

-But, historically, there was no unlimited "right" to deny serve in public accommodations. It is part of the public and unlike nature, the public does not have some unlimited power to do things. You aren't forced to set up a public accommodation. If you do, you have to follow anti-discrimination laws.

Well put Joe.

I think many conservatives 'read into' the law libertarian political philosophy that is not explicitly there and/or has never been recognized in caselaw. Where does this right to operate a public accommodation any one pleases come from? Not from the Constitution that I read or the caselaw I am familiar with.
 

It might be derived from Lochner, which some libertarians would make law again.
 

But, historically, a photographer would not have been a "public accommodation".

(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:
OOO)(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
OOO)(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
OO)O(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
OOO)(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.


Until fairly recently, the concept of a "public accommodation" was fairly narrow, limited to businesses which essentially served everybody who walked in the door. Restaurants might be covered, even caterers would not have been. Individual professionals for hire? Never.

I have to say, what's being done to Elaine under the color of law bears less resemblance to civil liberties enforcement, than to the civil rights movements' version of Conan's "what is good in life": Just proving that you can crush anyone who doesn't knuckle under.
 

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Brett put forth a general principle. Now, he's backtracking to what is "really" a public accommodation and talking about "crushing" people because a limited liability corporation has to serve people equally. This is where Shag's petty potshots start to seem a tad understandable.

Mark Field discussed public accommodations recently so he can deal with details but this is the sort of picayune thing that is tedious. Restaurants "might" be public accommodations now?

Elane Photography is a LLC, not simply an "individual professional for hire." This particularly means it isn't just one person, but a business who could hire someone else to serve the couple here.

It is 'knuckling under" that a public place of business has to have equal access according to certain classifications -- including race -- now. This is "crushing" people.

If some place of "entertainment," which is far from essential, is going to be covered, why not this? Also, this is not the federal law linked by Brett. This is a state law which is more localized. As to what happened "recently," that's a bit variable. "Recently" you could defend "freedom" by not serving black people generally.

Brett said this was part of freedom, though maybe not for inns and the like.
 

Joe, you don't refute somebody objecting to the current state of the law, by pointing out the current state of the law. I'm well aware that the concept of "public accommodations" has metastasized to the point where it has engulfed almost the entire economy. I consider this an outrage, you don't. This doesn't make me ignorant.
 

The "must serve everybody who asks nature of "public accommodations" is a violation of a principle I consider important, that transactions should never be compelled, that forcing one person to work for another is just as evil if you call it anti-discrimination law, as if you call it slavery or indentured servitude.

But it DID, in the beginning, with some significant over-reach, address a real problem: That discrimination by particularly vital businesses could seriously hurt people.

Willcock was not hurt by Elaine. Likely not even her feelings, which were more in the nature of, "Score! Somebody to sue!"

Elaine damned well is being hurt here. Forced to either cooperate in advancing something she finds objectionable, or suffer significant damages. That harm is real, Willcock's harm a legal fiction.

"Public accommodation" law has suffered a fate all too common for well meaning violations of principle: Starting out as a somewhat unprincipled way of addressing a real harm, it has been expanded to the point where IT has become the real harm.

Willcock would not have suffered if deprived the power to force an unwilling photographer to document her event. There's no justification here for the deprivation of Elaine's liberty.

But that doesn't matter to people who place a trivial value on liberty.
 

Brett's:

"But that doesn't matter to people who place a trivial value on liberty."

ignores over two centuries of placing a trivial value on liberty of African-Americans. And the changing demographics have put fear in the likes of Brett that what the likes of him have done in the past may revert to them.

And Joe, in your:

"This is where Shag's petty potshots start to seem a tad understandable."

perhaps you meant "understated." Consider the back and forth "reasoning" over the years in addressing Brett's racial vileness. Obviously Brett is not going to change his views as they are engrained deeply with vileness and hatred. There is no redemption there. His function at this and other blogs is to spew his vile racial views. I assume this Blog has many visitors who do not posts comments and who may wonder why these efforts to "reason" with Brett once it became clear who and what Brett is. I would submit that what you refer to as "petty potshots" have more firepower than attempts at "reasoning" with Brett. That "reasoning" gives him the opportunity to spew even more racial vileness readily available to him with a few keystrokes on his computer. As I said to Hank, I call a spade a spade and in this case a cracker a cracker.
 

Brett

I think one should not be so quick to dismiss Willock's harm. We do not know what her life as a gay person in America has been like. We know she cannot marry the one she loves in the state she lives in. She may face discrimination in many ways often. That may be what motivated her to test this case, much as civil rights pioneers in the 50's and 60's often traveled for a sit in to a Woolworth's or Five and Dime that had never really 'harmed' them.

As to your principle I think a couple of things can be said. First, I do not think it is tenable that forcing someone to serve someone under anti-discrimination laws is JUST as bad as forcing someone to serve someone under slavery or servitude. Surely intentions and motivations matter for something (our common law tradition mens rea analysis backs this up). Secondly, we are not talking about perpetual servitude, we are talking about holding someone to what most rational capitalists who open businesses to the public aim to do: serve as many willing customers as they possibly can. Third, I would not say that I place a trivial value on liberty, but I may place a low value on a trivial liberty, and the right to run a public accommodation in a discriminatory way strikes me as such a trivial liberty (and one that is simply not enshrined in our Constitution or legal traditions).
 

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The "must serve everybody who asks nature of "public accommodations" is a violation of a principle I consider important, that transactions should never be compelled, that forcing one person to work for another is just as evil if you call it anti-discrimination law, as if you call it slavery or indentured servitude.

Yes, your comparison of equal access in public accommodations as "just as evil" as slavery is duly noted.

But it DID, in the beginning, with some significant over-reach, address a real problem: That discrimination by particularly vital businesses could seriously hurt people.

Particularly vital? Like places of public amusement? They were covered in the 19th Century. If going to the theater is "vital," why aren't places necessary to carry out weddings? It can't be that there are alternatives. If there are five places of public amusement, you can't just say "well, go to another one." Doesn't work that way.

Willcock was not hurt by Elaine. Likely not even her feelings, which were more in the nature of, "Score! Somebody to sue!"

How do you know how her "feelings" are hurt by businesses not willing to serve her? It's Elane Photography, btw -- a LLC. Not just some sole individual.

And, how do we tell if someone is "hurt" exactly? If a black person is refused service at a store, is he or she not hurt because there is some other store available? Civil rights laws are in place against racial discrimination in part to cement the principle that discrimination against race is wrong, at the very least in public accommodations. By allowing discrimination against same sex couples, real people are hurt. Discrimination is seen in public accommodations as legitimate. People are fired from their jobs etc. for being gay. This HURTS people. Now, it might be like speech or whatever something we have to deal with (I don't think so) but that is something else.

Elaine damned well is being hurt here. Forced to either cooperate in advancing something she finds objectionable, or suffer significant damages. That harm is real, Willcock's harm a legal fiction.

Willock cannot obtain Elane Photography's services. This isn't "fiction." You want businesses to be able to deny service to gay people. This harms people. This is not a "fiction." Serving blacks might be "objectionable" to people, but public accommodations are regulated. That isn't fictional -- that's based on reality.

"Public accommodation" law has suffered a fate all too common for well meaning violations of principle: Starting out as a somewhat unprincipled way of addressing a real harm, it has been expanded to the point where IT has become the real harm.

Equal access to the public when you run a public accommodation is not "somewhat unprincipled" -- it is both principled and sensical. Discrimination is "a real harm," and gays continue to suffer it today. It isn't "historical" alone. To belabor a point.

Willcock would not have suffered if deprived the power to force an unwilling photographer to document her event. There's no justification here for the deprivation of Elaine's liberty.

Discrimination causes harm. People "suffer" when they are discriminated against. Elane Photography in particular gets special liability benefits as a LLC. There is a particular "justification" to require such benefits to come with an anti-discrimination prnciple.

But that doesn't matter to people who place a trivial value on liberty.

We disagree on what "liberty" entails. The liberty not to be discriminated against in public accommodations is trivialized by you. Please stop suggesting disagreement means the other side provides value to something.
 

BTW, I did not try to merely call you 'ignorant' and state the law to refute your disagreement of its current status. Since you didn't answer various things I said, maybe you skipped over the other parts. #snark
 

Shag, thanks for your commentary on your logic, though I think addressing the logic of Brett's comments, and at times forcing him to stop hand waving and address the logic behind them, has its place too. Hearing people compare public accommodations law to slavery has its value. I also don't know how much making fun of how people look helps and when one side does that, it encourages everyone to do it. That gets messy. It becomes some spitting game.
 

To the excellent comments of Joe and Mr. Whiskas, I'll just add that the smaller the locality the greater the harm. Sure, in a big city a black person or a gay person can find another business. That isn't always true in small towns, where there may be only 1 wedding photographer.

Running a business is a *public* action. It's not something you do in the privacy of your home or in the privacy of your thoughts. It doesn't really make sense to insist that one can bring his/her private views into the public and expect that nobody should care.
 

I don't expect people to not care, I merely expect them to not think they're entitled to force one person to work for another. Which is what's going on here, even if you think it's just peachy.

The reason I linked to that bit of the 1964 Civil Rights act was to demonstrate that Elaine would NOT have been considered, at that time, a public accommodation. Very few businesses were. The notion that businesses such as her's were always "public accommodations" is a crock. That's a comparatively recent development, so don't invest it with the moral authority of the civil rights marches.

"Running a business is a *public* action. It's not something you do in the privacy of your home or in the privacy of your thoughts."

Yup, that's the exact attitude I object to: "Think what you want in the privacy of your head, (At least until we have a way of reading your mind.) but if you don't mean to live on a deserted island, you WILL submit to our will!" That's the attitude that is driving us towards the "all that's not forbidden is mandatory" dystopia: Any deviation from acting like a perfect liberal Democrat is deemed a suitable subject for bringing the force of the state crashing down on a person.

You can't bear to let somebody chose to live by their own views, not your's.
 

The CRA is a poor choice to find a comprehensive definition of "public accomodation" because Congress was limited by the Commerce Clause in legislating on this subject.*

As Joe mentioned, I've posted this before: at common law, the duty to serve all comers applied to businesses beyond simply "public accomodations". It applied, for example, to monopolies, even if the monopoly was local (e.g., a grain mill). It applied to freight hauling, not just the individual transport Brett suggests. As long ago as 1876 (Munn v Illinois), the Supreme Court upheld regulation of grain storage elevators on the ground that property "becomes clothed with a public interest when used in a manner to make it of public consequence and affect the community at large." These are not "recent" developments; claims to the contrary are libertarian doctrine, not actual law.

"That's the attitude that is driving us towards the "all that's not forbidden is mandatory" dystopia: Any deviation from acting like a perfect liberal Democrat is deemed a suitable subject for bringing the force of the state crashing down on a person.

You can't bear to let somebody chose to live by their own views, not your's."

No, I object to the attempt by some to downgrade others, to impose their beliefs on society. That infringes on my freedom and the freedom of everyone else. The fact that you have no interest in freedom is unfortunate.

*The limit should be the 5th clause of the 14th A, but that's not the law.
 

"no interest in freedom"

Well, a sound view of freedom, like equal access by race in public accommodations is not akin to slavery, which in not merely the accepted view of the 'perfect liberal,' but thankfully, a lot more people.
 

How did a photographer get to be a "public accommodation"? Could a ditch digger become a "public accommodation"? A factory worker? Maybe tomorrow you'll be able to conscript somebody to clean your home, or even, dare I suggest it, pick your cotton?

It started with restaurants and hotels, now it's photographers. Because it's a bleeding tragedy you somebody can't force an unwilling photographer to take photos for them. That's just want you want for your precious moment, after all: A photographer taking photos under threat of legal penalty, of an event they despise.

You can't even see the horrible implications of this, because you're so hung up on the idea that somebody might make a choice you disapprove of, and not be legally penalized.

A civil rights movement due to the legacy of slavery has come to this: Forcing people to work for people they don't want to work for.

Are you really this dead to irony?
 

Brett, I'm pretty sure the conditions endured by slaves were a little different from those endured by someone getting paid for their services.
 

Brett's:

"A civil rights movement due to the legacy of slavery has come to this: Forcing people to work for people they don't want to work for."

suggests that he would prefer the pre-civil rights movement legacy. But suppose Brett needed a prescription filled for his ill mixed race son and the only pharmacist open was an African-American who didn't want to be forced to work for a cracker. My understanding of public accommodation is that it is colorblind, such that Brett would have a case for such refusal. Does this revive irony?
 

The idea that you must serve all customers may have *begun* with public accomodations (actually, it began with transport services like ferries), but that doesn't mean it *ends* there. Focus on "public accomodation" is a red herring.

Every business which is open to the public should be open without discrimination. The irony is that libertarians like to claim that "the market" will tend to force businesses to adopt that policy because they won't be as profitable if they discriminate. Somehow, though, it's tyranny if the law achieves the same result.

The real harm to freedom comes from the photography service which discriminates. That actually infringes the freedom of those who want photography because it (a) limits their choices and (b) denigrates them personally by making them a second class citizen. Note that the more people who, like Elane Photography, exercise their "freedom", the more they constrict the freedom of others.

Some might note the irony that those who claim to support freedom are incapable of seeing that their own policy actually restricts it.
 

"suggests that he would prefer the pre-civil rights movement legacy."

No, it doesn't really suggest that, unless you're operating on a preexisting presumption that people who disagree with you are evil, or some such. Which has long since been clear you are doing.

Yes, you guys are dead to the irony of the civil rights movement forcing somebody to take a job. You fought dragons so long, you became dragons. And as such, you'll never admit it.
 

So Brett accepts public accommodation laws in concept but thinks they go too far, imposing in effect slavery upon libertarians like himself? I just heard a report on CBS News that a recent poll indicates improvement in racial relations since the 1963 march: 53% of Blacks feel that they are discriminated against as compared to 27% of Whites who feel they are discriminated against. Pre-civil rights movement legacy, the numbers were probably, respectively, 100% and 0%. Perhaps Brett and other libertarians of his ilk are included in the current 27% of discriminated against Whites. [Here's a suggested book title: "Libertarianism: Fifty Shades of White."]

Perhaps Brett should think about "public accommodations" that he customarily and satisfactorily uses on a routine basis to consider how a person of color might feel if denied such use because of the proclaimed "liberty" right of the public accommodation provider not to deal with a person of color.

Brett, assumptions I make about you are based upon a long, long history of your comments at this and other blogs on racial matters. I don't make such assumptions generally with people because I don't agree with them. I do believe you are evil, but harmless, despite your 2nd Amendment absolutism. Oh, how those changing demographics might contribute to a new form of slavery.




 

Brett, you're not being forced to do anything. If you don't want to photograph African Americans, don't become a photographer. Do you really think slaves had that option? Equating "treating people fairly" with "slavery" is obscene.

The reason people don't see things your way is not because they're blind to the irony, it's because your argument is idiotic.
 

Shag, today blacks are encouraged to think themselves discriminated against if they are required to vote on election day, instead of a month in advance. And never mind that whites are, too. "Discriminated against" no longer requires any actual discrimination. Being treated the same gets called "discrimination" today.

BB, I shouldn't respond, but I guess I will: Sure, when they declare photographers to be 'public accommodations', you can stop being a photographer, and start digging ditches. Until they declare ditch diggers to be 'public accommodations', too.

You can't adapt to a wrong when it's expanding. You have to fight back.

Again, and my final word on this: I hope the case DOES go to the Supreme court, and that they rule for Elaine. We really need to stop depriving people of their liberty in the name of 'civil liberties'. FREEDOM is the ultimate civil liberty.
 

Brett, if I get to force you to dig ditches for me against your will for the rest of your life with no pay, and you don't have any other options, you might have something to complain about.
 

By the way, I think it's great that you're outspoken in your support for racists. People get to see what you're really all about.
 

Brett with this:

"You can't adapt to a wrong when it's expanding. You have to fight back."

skates across that thin line between libertarian and anarchist. Since Brett's venting is in a public forum [NSA, are you listening?], I assume he'll stick to fighting back via the First Amendment.
 

A perfect example of what I was talking about when I said you were "operating on a preexisting presumption that people who disagree with you are evil"; With the very next line I indicated I meant to fight back in court.

But, just as a 'living' constitutionalist can always find enough ambiguity in the Constitution to avoid admiting something they want done is unconstitutional, a liberal can always find enough ambiguity in a non-liberal's utterances to impute evil to them.
 

I suspect Brett's neighbors are pleased with his "fighting back" corrective through the courts, as well as via the Frst Amendment that I as a liberal assumed he would. And no, I don't think Brett's corrective might be due to my NSA reference as he has provided a trove over the years for that agency.
 

It's clear that irony is dead: stating that one's opponents presume that those who disagree with them are evil, is just a way of saying that one's opponents are evil.
 

Joey Fishkin's recent post at this Blog on the 1963 march provides a link to Joseph E. Stiglitz's NYTimes Opinionator essay "How Dr. King Shaped My Work in Economics." Those following the comments at this post of Gerard's might find Stiglitz's essay cleansing.
 

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If people are tired of this "Brett show" thread, they can go to Volokh Conspiracy and read a long comment thread started by a trollish comment about MLK.
 

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