November 22, 2013 10:10AM

Why Is the ACLU on the Wrong Side of the Wedding Photographer Case?

Elane Photography LLC v. Vanessa Willock is the case in which an Albuquerque, NM woman has (thus far successfully) sued husband‐​and‐​wife photographers under New Mexico’s “public accommodations” discrimination law for their reluctance to shoot photos of her commitment ceremony to a female partner. One of the most dismaying elements of the case is that the American Civil Liberties Union has taken the anti‐​liberty side. Adam Liptak in the NYT:

I asked Louise Melling, a lawyer at the American Civil Liberties Union, which has a distinguished history of championing free speech, how the group had evaluated the case.

Ms. Melling said the evaluation had required difficult choices. Photography is expression protected by the Constitution, she said, and Ms. [Elane] Huguenin acted from “heartfelt convictions.”

But the equal treatment of gay couples is more important than the free speech rights of commercial photographers, she said, explaining why the A.C.L.U. filed a brief in the New Mexico Supreme Court supporting the couple.

The ACLU of all groups should have no reason to see this as a “difficult choice” or as a conflict of constitutional values. Free speech and expression rights, which extend to the right not to engage in expression on behalf of a cause one deplores, are central constitutional values and the ACLU is the very first organization people turn to to defend them. Equal treatment of gay couples by private actors, on the other hand (as distinct from by the government itself) has no clear status as a constitutional value at all.

Shame on the ACLU for selling out civil liberties principle in favor of its current notions of civil rights. As Jacob Sullum points out, if it “cannot bring itself to stand up for Huguenin’s rights, it should at least have the decency to sit this one out.” In the mean time, it would do well to adopt some new and changed name on its letterhead, such as American Civil Rights Union.

I’m happy to say that Cato (with law professors Dale Carpenter and Eugene Volokh) filed an amicus brief supporting the photographers’ rights before the New Mexico Supreme Court, albeit unsuccessfully. Certiorari has now been sought at the U.S. Supreme Court.