posted a lively podcast of two legal scholars of interest to those
following the case of
Elane Photography v. Willock. That’s the New Mexico
photographer who refused to shoot a gay wedding and got into legal
trouble for violating the state’s public accommodation and
anti-discrimination laws. The photographer has lost every step of
the way and is asking for a Supreme Court review.
I bring up the podcast because holding up the libertarian side
of the debate is Richard Epstein of New York University, arguing
against Michael Dorf of Cornell. Both men note that the case is
based around whether Elane Photography can claim a First Amendment
exemption from public accommodation laws, not the laws themselves.
But Epstein would like to see a restoration of real, honest-to-god
recognition of freedom of association, which he argues has been
“dashed to bits” by Supreme Court decisions from the 1930s on:
“Every person has the ordinary liberty to pick the persons with
whom he wishes to deal and the terms and conditions on which they
wish to trade. … There is no theory that I am aware which indicates
the heavy hand of the government with its elaborative
administrative structure can do better than competitive markets to
sort out all these issues.”
Of course, the debate cannot help but to examine the Civil
Rights Act of 1964 and how Southern racism has impacted business
law. Epstein notes the significant amount of government force and
monopolistic protection that was part and parcel of keeping racist
business practices alive in the south. He defended
anti-discrimination policies in situations where consumers honestly
don’t have many choices, but he does not see any behavior of that
sort when analyzing a business’s refusal to serve gay couples:
“This is a case in which there’s an absolute juggernaut in favor
of same sex marriage. The transformations in my lifetime from the
time when it was a criminal offense to be gay to the time where it
is in fact a preferred freedom is nothing short of
astonishing.”
Dorf invokes a concept of “economic citizenship” to explain the
idea that the government can set the policies by which businesses
and corporations offer their services. Epstein, though, notes that
there are no reverse expectations. Customers still have their
freedom of association. We would consider it unconscionable if a
gay couple were ordered to purchase a cake or hire a photographer
from a business who opposed their relationship. In his conclusion
Epstein notes:
“I think the problem that we have is that some of us have such
strong ideas about what a just society looks like that we don’t
think long and hard about whether or not we’re entitled to impose
our will. And the basic argument is this: The stronger the
consensus for open public accommodations, the weaker the need for
the law.”
I previously wrote how these gay marriage conflicts were more
about what we classify as public accommodations than who does or
doesn’t get exemptions under the First Amendment, so I’m pleased to
see a constitutional scholar make a similar argument. Epstein,
though, given his background, makes a much more articulate case
than l’il ol’ me.
Listen to the podcast below:
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