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The Breadth of the New Mexico Human Rights Commission's Rationale:

The New Mexico Human Rights Commission has just issued its opinion concluding that Elane Photography violated New Mexico law by refusing to photograph a same-sex commitment ceremony; and the opinion clarifies a little about the Commission's rationale. (Recall that the order was originally released last week, but the opinion was apparently just delivered to the parties yesterday.)

For instance, the Commission's rationale isn't limited to wedding photographers, who some people argued (wrongly, in my view) aren't really "creative" enough to get First Amendment protection. Rather, it would apply to freelance writers who refuse to write press releases or Web copy for religions they disapprove of. It would apply to professional singers who routinely hire out for a wide range of events (weddings, bar mitzvahs, and so on) but who don't want to sing at events affiliated with some religion, or for that matter at same-sex commitment ceremonies. It would apply to professional portrait painters who accept a broad range of commissions but prefer, whether for artistic or political reasons, to paint only men or only women, or not to paint people of whose religious activities or sexual orientations they disapprove.

After all, here's the entirety of the Commission's discussion of the First Amendment issue:

The United States Supreme Court has considered the provisions of state antidiscrimination laws similar to the provisions of NMHRA and concluded that: "Provisions like these are well within the States usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338, 2346 (1995). The Court has explained that "acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent." Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 3255 (1984).

That's a judgment that the First Amendment just categorically doesn't apply to these sorts of antidiscrimination provisions, not a judgment specific to wedding photographers.

Of course, the Commission's rationale also seems legally wrong. It's true that Hurley said that antidiscrimination provisions do not as a general matter violate the First Amendment -- but then it went on to hold that such a provision did violate the First Amendment when applied to a parade's exclusion of a float that was identified as connected to a gay/lesbian/bisexual group. Likewise, Boy Scouts of America v. Dale later held (distinguishing Roberts) that such a provision did violate the First Amendment when applied to the Boy Scouts' exclusion of a gay scoutmaster.

So the Court has made clear that the First Amendment may indeed trump antidiscrimination law when applying the antidiscrimination law would interfere with a group's speech or its expressive association. Elaine Huguenin argued applying the antidiscrimination law here would interfere with her freedom from compelled speech. Yet the Commission simply quoted the general statements from Hurley and Roberts without explaining why the well-recognized First Amendment exceptions to those general statements don't apply to Huguenin's claim.

Pretty poor opinion-writing, it seems to me. But in any event, it shows (as I argued above) that the Commission seems to see rights to be free of compelled speech as being irrelevant to its application of public accommodation discrimination law -- which is why I say that the Commission's reasoning would apply equally to the freelance writers, singers, painters, and more.

The Unbeliever:
For instance, the Commission's rationale isn't limited to wedding photographers... Rather, it would apply to freelance writers... to professional singers... to professional portrait painters...


So can we start talking about "slippery slope" yet? Or is it too soon, and we still run the risk of being labelled as right wing alarmists?
4.15.2008 2:54pm
darelf:
If one isn't free to express oneself ( or to refrain from doing so ) through whatever medium be it speech, paint, photography, etc. even if that expression is done for monetary gain ( i.e. Newspaper Reporter ), then the 1st Amendment is dead.

I think Elaine is wrong. I think she is morally wrong. If she is a professing Christian, I think she is extra-wrong.... But I also think she has a Constitutional 1st Amendment right to be wrong on this.
4.15.2008 2:57pm
gattsuru (mail) (www):
Still can't find any comments by the ACLU. You'd think this would be rather relevant.
4.15.2008 3:12pm
Richard Aubrey (mail):
gatt.
You're being facetious, I can tell.
But, just in case, you could call them. Maybe they missed it.
Be a shame for them to fail to weigh in on something they feel strongly about--freedom of speech--just because they missed the memo.

Unless you think they'd be on the wrong side....
4.15.2008 3:15pm
Ed Weston:
I don't see any slippery slop to be argued about. The NMHRC has gone directly to the abysmal point that slippery slope arguments merely theorize for the future.
4.15.2008 3:18pm
Paul Barnes (mail):
And Obama wonders why people cling to "guns, God, and family" when the government blatantly violates freedom of conscious and religion.

As to whether Elaine is wrong within the confines of Christianity: every single shred of evidence supports her position. However, that does not mean that it makes good public policy in a country based on pluralism, like America is.
4.15.2008 3:19pm
Blackwing1 (mail):
I'm curious...how can a court mandate that a photographer take pictures at an event she would prefer (for whatever reasons of her own) to not photograph? And what will happen when the photographer, now forced at the point of a gun/lawsuit, takes BAD pictures?

If someone attempted to force me to take pictures of an event with which I had serious philosophical disagreement, I'd be sure to be inserting my own point of view into the photos...who's to say it's not "artistic expression" to hold a single digit in front of the lens for every single shot?
4.15.2008 3:22pm
IB Bill (mail) (www):
You didn't really think the First Amendment would survive the assault on natural law that's been going for the past 40 years of so? The argument I've been trying to make here about SSM is not so much about SSM itself. It's always been more about permitting a redefinition based on political power points to a path that will inevitably result in tyranny.

Because once you can redefine a term like marriage to not include gender, you can abstract anything out of anything and call it "bigotry" to think otherwise. And these redefinitions are based on raw, political power. Once there is no Platonic form to point to, or no natural category, or no ackowledge of natural law, the definition of everything is up for grabs. And thanks to reasoning such as pro-choice and SSM, the fundamental underlying logic in our Constitution has been stripped away. No natural rights, no rights, only power politics, period.

This decision will no doubt be reversed -- this time. But it's a terrible sign that this lawsuit was taken seriously for a moment.
4.15.2008 3:31pm
PatHMV (mail) (www):
Blackwing... the commission won't be so foolish as to order the taking of the pictures. They'll simply require the poor photographer to pay for damages.

The problem will arise with other, less honest photographers, who agree (having seen what happened to Elaine) to the selfish demands of some future homosexual couple, but then simply take the bad photos. Their trick will be to take unsatisfactory photos which are nonetheless not so clearly bad as to be demonstrable proof of breach of contract or negligence. I'd recommend taking pictures only when people blink or sneeze as a first step.
4.15.2008 3:32pm
DangerMouse:
This is the future of America, especially if liberal Presidents appoint Supreme Court justices who agree with this stuff.

Eugene, why limit yourself to singers at weddings? PRIESTS at weddings are paid sometimes as well. That's something that the government will extend its grubby little fingers onto as well. Who cares if the ceremony is legally valid in the state or not? If a Priest refuses to officiate at a gay "marriage," throw him in jail too!

Why stop at antidiscrimination law? Require Catholic-run hospitals and doctors to perform abortions and euthanizations. Require Amish people to serve in the military. What's next? A loyalty oath towards the Goddess of Reason?
4.15.2008 3:39pm
cboldt (mail):
[Comment deleted on the grounds of gratuitous vulgarity aimed at the complainant; folks, please stay substantive and polite. -EV]
4.15.2008 3:45pm
David M. Nieporent (www):
What's also striking about the HRC's ruling is that it doesn't seem to recognize that, by law, this wasn't a wedding ceremony. Several times, the HRC uses language similar to "Elane Photography's co-owners held the religious belief that a marriage or a wedding is only between one woman and one man."

That's not just a "religious belief," but New Mexico law.
4.15.2008 3:52pm
Prufrock765 (mail):
This is a variation of the "just take bad pictures" point, but:
Now that the government has decided that it can compel a person to enter into a contract, can it also compel the terms--how quickly the pictures get produced, how much they cost, what kind of camera and film gets used?
If not, why not?

Also (and this point may also have already been made) is there not a distinction to be drawn here between an art and a technique?
Customers of a wedding photographer are usually looking for technical proficiency rather than some original aesthetic creation. So this makes Elaine even more like an architect or a private tennis coach or a chef.
4.15.2008 4:14pm
Thorley Winston (mail) (www):
As to whether Elaine is wrong within the confines of Christianity: every single shred of evidence supports her position. However, that does not mean that it makes good public policy in a country based on pluralism, like America is.


I most emphatically disagree, in a country based on pluralism like America, the only good public policy is freedom of association.
4.15.2008 4:15pm
cboldt (mail):
-- in a country based on pluralism like America, the only good public policy is freedom of association. --

.

And under liberal judicial rationale, "freedom of association" will be defined as a requirement to associate. Viola, objective obtained.

.

I've come to the conclusion, using the word "marriage" as a point of reference, that labeling and bogus redefinition of terms are being successfully deployed to "advance" (or change) some very fundamental aspects of society.

.

We'll call it "civil union," but the goal is that, eventually, the "civil union" will have the same legal rights as man/woman marriages, and eventually will be seen as "normal."

.

Anyway, "freedom of association" can be manipulated in a similar way, to mean the opposite of what you want it to mean.
4.15.2008 4:33pm
Paul Barnes (mail):
Thorley,

Sorry, I think I was unclear in my intent. I mean that public policy should not be based on Christian theology. At least, not solely. So, within the confines of Christian theology/morals, I do not see any credible evidence for the acceptance of homosexuality as ethical or morally normative. In other words, it is incompatible for a Christian to support it (just like you cannot be a Catholic and a Nazi (they were excommunicated by the Church in the 30s I believe)) Not that I am making a moral connection between the two at all.

Having said all this, I basically agree with your point about freedom of association.
4.15.2008 5:12pm
Nathan_M (mail):
David M. Nieporent, I'm not sure why you think that is relevant.

Now, if there Elane Photography had argued they they didn't argue that they didn't provide the service because it was a commitment ceremony rather than a marriage the distinction might be relevant. But it seems like they were clear that wasn't the reason (in fact, in her email Elaine called the ceremony a wedding). They admitted the reason they wouldn't provide the photos was that the ceremony was between two people of the same gender.

Now, it might not be discriminatory to photograph "weddings" but not "commitment ceremonies," but given the fact Elane didn't argue that you can hardly fault the commission for not addressing it.
4.15.2008 5:58pm
Nathan_M (mail):
Yikes. The first sentence of my second paragraph should read "Now, if there Elane Photography had argued they they didn't argue that they didn't provide the service because it was a commitment ceremony rather than a marriage...."

Sorry about that.
4.15.2008 6:00pm
Sean M:
I am, shocked, shocked, that the Commission did not explore the nuances of the First Amendment claim. After all, why engage in substantive, nuanced analysis when you have a few boiler-plate cites you can pull off of other decisions or grab the Westlaw headnotes?
4.15.2008 6:11pm
Randy R. (mail):
Paul: "So, within the confines of Christian theology/morals, I do not see any credible evidence for the acceptance of homosexuality as ethical or morally normative."

There are in fact several Christian religions that do accept homosexuality as ethical and morally normative, such as the Unitarians, Universalists, many Episcipal and Prysbeterians, the Metropolitan 'Community Church and several others, not to mention most branches of Judaism, excepting Orthodox.

Nonetheless, I agree that this is a bad ruling. I too think Elaine is wrong, morally, ethically, and so on. But it is her right to be wrong. As a small business, she should have the right to choose her customers. It is NOT like opening a restaurant, where you have many customers at once. Her business is focused that she can only have one client at one time, and so she should be able to choose.

I don't think she should be able to advertise "I refuse all gay customers", nor have that as a policy, and if she did, then the HRC should come down against her heavily. Or if she refused and called them names publically, then there might be some sort of case.

but to merely refuse one client? I think that pushing things down the wrong lane.
4.15.2008 6:34pm
Soronel Haetir (mail):

I have a hard time seeing the language of the emails as relevant. That seems like an extremely nuanced point for someone not expecting a hassel to make.

However, not bringing that issue before the HRC is another matter.
4.15.2008 7:19pm
Paul Barnes (mail):
Randy R.

Well, I hold those various denominations to be committing a categorical error. Thus, I question their "Christian" character, but it is not limited to (nor largely dependent on) the treatment of homosexuals. Rather, it is based upon their errors in Christology. However, I do not want to really argue my narrow definition of Christianity.

I can see how this is tied into the gaffe that Obama made though. Human Rights Commissions tend to target religious conservatives because they are staffed with left-liberals and find a lot of the behaviours, beliefs, and practices of these groups offensive.

Here in Canada, the Human Rights Commissions have engaged in illegal activity, like committing hate speech, to target websites they do not like. It is also common practice to use/hack into wireless networks to cover their tracks.
4.15.2008 7:40pm
Richard Aubrey (mail):
unbeliever.
wrt slippery slope:

First mention at top of slope:
Racist, homophobe, hater, misogynist, nativist, xenophobe, alarmist.

Last mention at the bottom:
Too late now, chump. Snork. So we lied. What are you gonna do about it now?

As Clayton Cramer says, gay rights, liberty. Pick one.
4.15.2008 9:19pm
Randy R. (mail):
Paul: "Well, I hold those various denominations to be committing a categorical error. Thus, I question their "Christian" character, but it is not limited to (nor largely dependent on) the treatment of homosexuals."

Then you engage in a tautology. Christian religions are only those that I agree are Christian. The Catholic Church holds that any religion other than their own is not a true Christian religion, and are committing a 'categorial error.' No doubt they return the favor, of course.

The fact is that there is no purely objective order by which any religion can claim it is Christian or not -- it is up to each religion to decide for itself whether it is Christian, regardless of what any other religion believes.
4.15.2008 9:32pm
Randy R. (mail):
Aubrey: "As Clayton Cramer says, gay rights, liberty. Pick one."

Oh please. Yes, of course, you can Clayton are shackled in chains because gays are getting married in Massachusetts.

Aubrey and Cramer, or rational arguments. Pick one.
4.15.2008 9:35pm
Richard Aubrey (mail):
Randy. See Canada for the next step. Not that you would complain, mind you, but we see it, too.

Or, for example, read the case above.
4.15.2008 9:43pm
Jon Rowe (mail) (www):
As Clayton Cramer says, gay rights, liberty. Pick one.

I think logicians call this the classic example of a "false dichotomy."

BTW: I agree that antidiscrimination laws as they apply to the private sector do inhibit liberty; but all of the categories which go well beyond race to include such things as gender, religion, pregnancy, handicapped status and age equally impinge on liberty.
4.15.2008 10:57pm
Jon Rowe (mail) (www):
No natural rights, no rights, only power politics, period.

I wonder if you know the distinction between natural law and natural rights. The concept of natural rights as America's Founders articulated them are not contingent upon Platonic forms of a Thomistic understanding of nature.
4.15.2008 11:08pm
David Schwartz (mail):
It's true that Hurley said that antidiscrimination provisions do not as a general matter violate the First Amendment -- but then it went on to hold that such a provision did violate the First Amendment when applied to a parade's exclusion of a float that was identified as connected to a gay/lesbian/bisexual group.
Perhaps someone can explain this distinction without a difference to me such that I can understand it. Consider, for example, a country club that refuses to allow blacks to become members. If you can't prohibit that, you can't prohibit much of anything. How does that not say "we don't like/support blacks" just as much as not allowing a GLB float in a parade says we don't like gays and lesbians?

I can understand, though don't agree with, a special exemption for sincerely-held religious belief. But if you want to argue that these two situations are different some other way, I don't see what it can be.

Every act of discrimination also is a speech act that says you believe those you discriminate against should be discriminated against in the way you have discriminated against them.

Is the distinction that some pass the "least restrictive means / compelling government interest" test and some don't? Or is that some speech acts are important and some aren't?
4.16.2008 6:44am
IB Bill (mail) (www):
I wonder if you know the distinction between natural law and natural rights. The concept of natural rights as America's Founders articulated them are not contingent upon Platonic forms [or?] a Thomistic understanding of nature.

Well, I threw the Platonic forms in there on my own, I confess it. I also admit I wouldn't last very long with a Jesuit or a UCLA law professor if I were required to explain the difference between natural law or natural rights.

I mean this sincerely -- would you care to take a crack at explaining the difference between natural law and natural rights or pointing to me a useful link if you're tooo busy today?

If this is off-topic, shoot me an email. Cheers, Bill
4.16.2008 9:24am
Justin (mail):
Oh noes, Canada is evil!

As to EV's slope point, the freelance writer is selling a good, not providing a service - I don't know of any freelance writer (in the way we think of the term) that allows ANY of their clients to tell them what to write about. If the portrait painter opens his business to sales generally, he can't discriminate on the client based on race, religion, sex - what's wrong with that? That doesn't mean he has to take a portrait of a gay orgy any more than he has to take a portrait of a straight one. And the singer will be forced not to discriminate in choice of venue by race/sex/gender, but that doesn't mean that Bruce Springsteen is going to have to start playing weddings.

If it's a slippery slope, it sure isn't a very scary looking one.
4.16.2008 10:37am
Richard Aubrey (mail):
Justin

Just so's you know, everybody already knows where Canada is on free speech, ref gays, Muslims, etc.
Sneering doesn't change that.
4.16.2008 10:40am
Jon Rowe (mail) (www):
IB Bill,

You could start with Leo Strauss' Natural Right and History (he makes the point that Aristotle, Aquinas et al. had NO concept of natural RIGHTS, but only natural LAW). I'm off to work; for a more down to Earth explanation Randy Barnett wrote a paper on the matter which I'll link to in a few hours.
4.16.2008 10:44am
Justin (mail):
Richard Aubrey,

I'm completely aware about Canada's repressive and inhumane dictatorship. Let's invade.
4.16.2008 11:28am
Arturo (mail):
Will perfect justice have arrived when the New Mexico Commission allows Elane to process a claim against a customer who passes her over in favor of a photographer identified with the customer's respective group?
4.16.2008 12:01pm
The Unbeliever:
Justin, why bother invading? We already have Canada surrounded, eventually they'll surrender or escape to Greenland!

Richard Aubrey, re: "gay rights, liberty. Pick one."

Careful, there's a distinction in terms to be made here. Without going into the full explanation, I'll say that everyone is entitled to basic human rights, but any time you try to extend more rights to one group over the other, that is when liberty is in danger. Gay rights, black rights, women rights, etc should all fall under "human rights" and be applied equally to every human being, or dropped entirely if found to infringe on the rights of others.

Put it another way: are we using "gay rights" to refer to the natural human rights of gays as human beings, or are we using it to refer to a set of "gay-specific rights"? The former are inalienable and fundamental to liberty in a society. The latter can be legitimately argued against as infringing upon the rights of non-gay citizens, and I believe this is the situation in the photography case which makes the NMHRC ruling objectionable.

Randy R has a point about the lack of rational argument only if Cramer and Aubrey mean "gay rights or liberty" when referring to human rights, which I don't believe they are. Otherwise, Cramer and Aubrey are right to argue that creating a superset of rights exclusively for gays (or other minorities) infringes upon basic liberties.
4.16.2008 12:34pm
Richard Aubrey (mail):
Unbeliever.
You're right. We're right.

Justin. I should be clearer. Sneering does not change the fact that anybody with half a brain knows about the speech restrictions in Canada. How do you intend to extract that knowledge from so many minds? Sneering just doesn't have the ooomph you think it does.
4.16.2008 1:01pm
Jon Rowe (mail) (www):
Here is Randy Barnett's article on natural law v. natural rights.
4.16.2008 1:02pm
IB Bill (mail) (www):
Thanks, Jon. Have a good one.
4.16.2008 2:07pm
Justin (mail):
Richard,

Your argument isn't that Canada's system isn't perfect, your argument was that if we continue down the path we're going, we're going to be JUST LIKE CANADA. The whole theory of a slippery slope requires us to be actually concerned (substantially so) with the end POTENTIAL result, enough not to take the first step, even if the step by itself doesn't concern us.

So yes, I'm mocking you, because your argument is silly.
4.16.2008 2:40pm
Richard Aubrey (mail):
Justin.
My argument is that Canada has significant restrictions on free speech which we do not yet have here.
The NM case is a step in the direction of the Canadian result.
Thus the concern.
I repeat: How many people do you think you can convince to forget they know about the Canadian situation?
4.16.2008 3:31pm
Justin (mail):
Um, okay. Back to mocking.

Yes, the Canadian "situation" is sure disturbing. Just a down right shame what's happening in Canada. The poor Children. Let's invade, we can fix it up!
4.16.2008 3:43pm
Richard Aubrey (mail):
Not working, Justin.
Better ignore it. By mocking, you make people more interested in what happens to people who, for example, publish sections of the Bible in Canada.
The 100% conviction rate at the Human Rights Speech Enforcement boards.
4.16.2008 4:13pm
J_A:
So can someone point out what are the gay rights that people talk about, and are so afraid of? I am not aware of any special gay-only rights that gays are asking for, that would not be available for heterosexuals. For instance, same-sex marriage would not be a gay right, as heterosexuals would be free to marry heterosexuals of their same sex.

After all, it has been pointed out many times in the VC comments that gays are currently perfectly free to marry people of the opposite sex.

Now if only there were a right for every person to marry the person they love

And am happy to stipulate that that person should be an adult and not within the to-be-determined forbidden degrees of consanguineity or affinity.
4.16.2008 4:13pm
Richard Aubrey (mail):
J. A.
The case in point is in point.

But the other issue which interests me is the freedom of speech issues in schools--and, as a warning, in Canada--wrt gays. It must be said that other groups are also under the protection from feigned offense that gays are in Canada.
Some of the cases are incredible, except when you read a case like this.
Mark Steyn has occasionally written on the subject, and more so now that he's been accused of hate speech and brought up on what the Canadians think of as charges. Ditto Ezra Levant. Both of them were complained of by Muslims, but Steyn in his writings has gone back into other cases regarding, among other groups, gays.

So far, the primary issue is that, in schools and colleges, a member of a protected group can say that pretty much anything he hears or sees someone else say about his group frightens or offends him or her. The perp is then taken through processes which are at least intimidating if not expensive and career-damaging. Even if, through the good offices of FIRE or the ACLU, the so-called offender is ultimately free of overt punishment, the desired chilling lesson is made for the rest of the student body to see.
Picture that in society at large and you'll see Canada. And, if Randy and Justin have their way, here.
4.16.2008 4:54pm
darelf:
This clarification is just because the InterWeb always comes back to bite me...

When I made my comment, my point is not that Elane should accept homosexuality as valid. Rather, my comment was directed at her refusal to associate. In fact, if she were simply following the example laid out for her, she would take advantage of an opportunity to associate with them. She could have been clear about her convictions and still offered to do the best job she could.
4.16.2008 5:58pm
houston_engineer:
Richard Aubrey

So, should I understand that, since you are against special rights for anyone, you actually are against Elane's claim (see following post)that her religion allows her to disobey a law passed on by the democratically elected representatives of the people of New Mexico.

After all, no one should have special rights, we should all be equal under the law. And that is the law of New Mexico, at least until an activist court invalidates it.
4.16.2008 11:59pm
Richard Aubrey (mail):
Houston.
I was not commenting on the law. I was commenting on the injustice of forcing people to do business with those whose lifestyles offend them. There used to be--from what I've heard there no longer is--what was known as the "Mrs. Murphy exclusion" which allowed a landlord whose apartment for rent was in her (Mrs. Murphy) home to exclude anyone for any reason. Since they'd, in effect, be living together. Or close to it.
If the law requires this, the law is a ass.

There are other examples. A tattoo operator tried to refuse to work on HIV-positive patients for fear of his life. He lost his case. I don't know if he tripled up on his gloves or just went into another line of work.

The happy couple were free to seek another photog, but the trouble they went to when first denied means they had issues other than pictures in mind. I married off one kid and will be doing the other this summer. The last thing on anybody's mind in that situation is to make "a federal case" out of anything.

I call setup.
4.17.2008 12:04am
John Thompson (mail):
Death, taxes, and Justin, cries the weary regular reader of the V.C. blog. Is there no end? Shall I never find peace? Shall I never enjoy a single V.C. thread unsullied by his sophomoric musings? Yet I say that if Justin did not exist it would be necessary for libertarians to invent him. He serves a valuable purpose in his reliable regurgitation of puerile liberal platitudes and, by way of his role as a foil for our respect for human freedom and autonomy, heightens our appreciation of living in a country where it is still, technically, legal in 49 states to demur from the P.C. orthodoxy from time to time. Oh and by the way, Canada is a country of slaves.
4.17.2008 1:17am
yankev (mail):

There are other examples. A tattoo operator tried to refuse to work on HIV-positive patients for fear of his life. He lost his case. I don't know if he tripled up on his gloves or just went into another line of work.
As I recall, the tattoo operator also expressed concern that the tattoo would endanger the HIV-positive patient. Common sense is often a victim of these laws.

Three young women in Minnesota shared an apartment and advertised for a fourth roommate. One of the women who answered the ad was a lesbian. The young women were uncomfortable sharing their apartment with a lesbian. They were charged with discrimination, and the state defied common sense by taking the position that the young women forefeited any right to personal privacy once they placed a want ad.

In 1978 or 1979, a Catholic high school called Benilde St. Margaret fired a lay Catholic math teacher who had been divorced and had announced that he was getting remarried. The state charged the school with marital status discrimination, and argued that by employing non-Catholic teachers, the school gave up any right to enforce religious standards against its Catholic teachers. At the admninistrative level, the Assistant AG tried to subpoena the maternity leave records of the school's female Catholic teachers so that she could introduce statistical "evidence" that the teachers were using artificial birth control. The hearing officer eventually found that the school had unlawfully discriminated but that Free Exercise principles barred enforcement. Both sides appealed to the Hennepin County District Court, who applied some common sense and held (J. McCarr) that under the circumstances, it was a BFOQ that a Catholic teacher not publicly and notoriously flout Church doctrine, even if the school employed non-Catholic teachers.
4.17.2008 10:36am