Friday, 8 September 2017

I'm Not Really An ACLU Fan

So I read an ACLU blog post today about a case where a wedding cake designer is discriminating against gay customers.

The case is clear cut discrimination. A gay couple went into a bakery that makes custom wedding cakes, asked for a wedding cake, and were turned away because the shop did not make custom wedding cakes for gay weddings. Anyone who doesn't agree that is
is not sufficiently engaging with reality. A state-level court agreed with this obvious conclusion, though the decision that it was illegal discrimination was a little more complicated than you would think. I'll get back to that in a moment.

The government of the United States of America has decided this is a really important case that they'd better get themselves involved in. So they've filed an
amicus brief
in favour of the cake shop owner. That's no surprise because the Department of Justice is run by a bigot. But even though it's obvious straight up bigotry, the brief does actually make a legal argument, and one that might sway a judge.

The defense of the cake shop owner is that making wedding cakes is a matter of personal expression. He would sell any baked good in his shop to a gay couple, but he won't engage in a personal creative effort to express support for a gay wedding. That is, he's saying it's his first amendment right to not express himself in a way that violated his religious beliefs.

The court that ruled on the case originally considered this argument, they didn't dismiss it out of hand. The question was whether creating the wedding cake was a sufficiently expressive thing to trigger the first amendment. They said it was not, but part their reasoning noted that the couple hadn't actually discussed details or custom messages of the cake before leaving the shop. So the cake shop owner hadn't refused to write, "I love butt sex" on a cake, he had refused to make a cake merely on the basis of the couple being gay. If he had kicked the couple out of his store for wanting him to write that on a cake,
we wouldn't be having this discussion

The ACLU post engages in a very silly slippery slope argument where they suggest that if this ruling was made a doctor might refused to treat people who are transgender or a restaurant might refuse to follow food safety laws citing food preparation as a kind of free artistic expression.

Neither of those make any sense at all. You don't trigger first amendment freedom of expression protections by employing technical skills like medicine. Your right to free expression has never included the right to poison other people and never will.

I think what the ACLU is doing here is encountering cognitive dissonance as they realize their position on the first amendment generally is a pro-discrimination opinion. When Charlottesville tried to deny a permit to hold a rally to neo-Nazis, the ACLU came to the defense of the Nazis and precipitated the events of August 12. Their position was that it is more important to protect free speech than to prevent Nazis from marching in our streets. They've been grappling with that position since, and they've decided they won't support violent hate groups that plan to bring weapons to rallies. So basically they will continue to stand up for first amendment right to advocate genocide, but won't do it if people are also exercising
second amendment rights
. Fundamentally, their position hasn't changed, though: crowds shouting pro-genocide slogans in the street should be protected.

If someone wrote custom poetry to be read at weddings and didn't want to write poetry about gay love, the argument the US government is making on behalf of the cake shop owner would work. In fact, based on the factors considered in the lower court, we'd never be at this stage, as the lower court would have supported this as
protected first amendment speech

Legally speaking, the constitution of the United States protects freedom of speech and does not protect gay people against discrimination. Well, it seems to protect them from discrimination within the legal system by guaranteeing equal protection under the law, but it doesn't protect them at a bakery. The case for the baker rests on a legal quibble about whether the first amendment applies, but if the first amendment applies, the ruling is clear. The argument that the baker is using to defend his decision not the make the cake is legally the same argument that another baker would use to refuse to make a cake with a swastika on it. The difference is that in one case a baker is refusing to acknowledge the validity of gay people's love, in the other they are refusing to acknowledge the validity of Nazi ideology.
Without noting that this is a question of rights butting against one another
, we can't tell those two things apart.

If I'm being kind, I think they ACLU, and Americans in general, have to grapple with the fact that giving one kind of human right - freedom of expression - primacy over other kinds of human rights - the right to be treated equally without regard to race, sexual orientation, etc. - means devaluing the latter right. It means being against the latter right in some cases. There are decisions to be made about how to proceed with that information.

If I am not being kind, I'd say the ACLU's readiness to engage in spurious slippery slopes from wedding cakes to doctor's visits combined with their unwillingness to engage in factually supported slippery slopes between Nazi rallies and violence means
they are an anti-semitic hate organization


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  2. Public accommodations laws do include things like medical services in the US so this is actually an apt analogy (ask homosexuals here in the US how badly they're treated by hospitals and doctors even now that they've got legal protections if you want to hear some depressing stories). The ACLU is making a valid distinction between public services/accommodations and free speech, which are distinct issues in our country.

  3. That may be a valid distinction, but it isn't one that the ACLU makes in their blog post, and it isn't one that the court seems to have thought was an important factor in their ruling, which really was focused on the detail of whether the cake creation was an act of protected expression.

    Americans are discriminated against on the basis of their sexuality in many areas. In this particular one, the person doing the discrimination has an utterly wrong but not laughable-on-its-face argument that their discrimination is not illegal because of their first amendment rights. No doctor would ever have any such argument. It's a very bad legal analogy.

    Of course that's not going to stop doctors from discriminating against people or lessen the harm caused by that discrimination.