Eduardo Moisés Peñalver
Eduardo Moisés Peñalver is the Allan R. Tessler Dean of the Cornell Law School. He is the author of numerous books and articles on the subjects of property and land use law.
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A while back, I blogged about the pending New Mexico case in which a wedding photographer who refused to photograph a gay commitment ceremony was sued for violating the state's antidiscrimination laws. The case presented the question whether the application of antidiscrimination laws prohibiting discrimination on the basis of (among other things) sexual orientation to a photographer who is morally opposed to same-sex marriage violates the photographer's First Amendment rights.
The New Mexico Supreme Court today issued its decision, holding that the First Amendment does not prevent a state from enforcing antidiscrimination norms against businesses that hold themselves out as open to the general public, even when those businesses offer services (like photography) that are artistic or expressive in nature. Although I might have written the opinion a little differently, I think it reaches the correct result. More details after the jump.
Here's a link to an article in Slate on the Supreme Court's upcoming city council prayer case. As expected, the Obama administration has argued in its brief that those who open city council meetings with prayers should be court martialed:
The judge appeared to be relying on her religious beliefs in (on her own initiative) rejecting the name Messiah. Her actions came in the course of considering a disagreement between the unmarried parents over the child's last name. The look on the judge's face when the reporter asks about children named Jesus is too good to miss. Watch the video.
This is a big deal, though certainly not the last word the courts will have on the issue:
The New Yorker has an excellent article on abuse of civil forfeiture by local governments that use it as a perverse source of revenue. Civil forfeiture occurs when the government seizes (without compensation) property used in connection with a criminal act.
A petition is making the rounds to protest the firing of another gay high school teacher, this time in Los Angeles. From the Change.org press release:
Current and former students of St. Lucy’s Priory High School will deliver more than 45,000 petition signatures from a popular Change.org campaign asking the Los Angeles-area Catholic school to reinstate ousted gay teacher Ken Bencomo. Supporters say he was fired after photos from his marriage to longtime partner Christopher Persky appeared on the front page of a local newspaper.
From Heather Horn, a guest post at Charles Pierce's blog that pretty well captures my feelings on the new pope:
In the wake of extraordinarily sloppy record-keeping during the mortgage spree that created our national housing bubble, many of the banks that have subsequently foreclosed on millions of homes have done so without producing the requisite documents. Instead of slowing things down to get their paperwork in order, these banks frequently foreclosed despite lacking proof that they were entitled to do so—in some cases knowingly submitting false affidavits to state courts.
One of the best comments on today's DOMA case that I've read so far is this piece by Northwestern Law Prof Andrew Koppelman. Here's a taste:
[Cross-posted at PrawfsBlawg] A few days ago, AP had a story about a gay couple in Colorado who, in the course of shopping for a wedding cake, had been turned away by a baker who did not approve of the use of his products in a gay marriage ceremony. The ACLU has filed a complaint against the baker on the couple's behalf. The baker is, of course, claiming that, as a matter of religious freedom, he is entitled to discriminate against gay couples. Colorado law prohibits places of public accommodation from discriminating on the basis of, among other things, sexual orientation. So the question, legally, is whether the state's antidiscrimination law violates the First Amendment's Free Exercise Clause. The argument that it does will run into Employment Division v. Smith, which says that the Free Exercise Clause does not require exemptions from laws of general applicability. The baker is going to have a hard time making that case.
We can expect to see more of these sorts of disputes as gay marriage proliferates across the country. In fact, the Colorado case resembles a case that has been rising through the New Mexico state courts and is currently pending before the New Mexico Supreme Court. The New Mexico case involves a wedding photographer who refused to provide her services at a gay comitment ceremony because, in her words, she only handled "traditional weddings." In that case, lower state courts found the photographer's actions to have violated the New Mexico laws prohibiting discrimination in places of public accommodation and rejected First Amendment challenges to the application of those laws to the photographer. The wrinkle in the New Mexico case is that the photographer is arguing that the law burdens freedom of expression, rather than simply the exercise of religion.
The two cases raise an interesting question about the degree to which restrictions on the right to pick and choose among customers inappropriately burden a business owner's legitimate autonomy, whether conceived as religious or expressive freedom. Implicit in both the baker and the photographer's argument is that requiring a business owner to provide a good or service to someone of whom he disapproves (either because of that person's conduct or identity) improperly forces him to identify with or endorse the customer in question. In assessing that argument, I think it is helpful to consider how the law has traditionally defined the rights of owners to select among their customers. As it turns out, for most of the history of the common law, owners of businesses who have held themselves out as open to the public have had quite limited rights to arbitrarily refuse service to customers who have presented themselves as willing patrons. This is a valuable and important principle to affirm. I'll explain why below the jump.