Huge gay marriage protest turns violent in Paris
About 400,000 traditionalists take to streets to oppose new law
John Lichfield Sunday 26 May 2013
1 / 1Activists against same-sex marriage took to the streets in ParisGetty images
Riot police fought running battles with hard-right protesters in the heart of Paris at the end of a mostly peaceful demonstration against gay marriage.
About 200 young people, many of them masked, pelted police lines with bottles, stones, fireworks and flares. The crowd – led bizarrely at one stage by a lone bagpiper – chased and beat up TV crews and press photographers. Police and gendarmes responded with tear gas and baton charges.
There were surreal battle scenes on the Esplanade des Invalides beside the foreign ministry as 200 gendarmes in riot gear formed into defensive squares to beat off attacks from running bands of protesters. Although a hard core of about 200 hard-right youths started the fighting, many hundreds of other, soberly dressed, middle-class protesters cheered them on.
Priests in long cassocks observed the battles without attempting to intervene. Other, more peaceful demonstrators stood in lines or circles nearby holding hands, praying and singing as tear gas and red smoke from flares swirled around them.
Earlier about 400,000 people, including many children, had defied warnings of possible far-right violence and marched in peaceful protest against France’s newly enacted law permitting same-sex marriage. Twenty members of a xenophobic far-right group, "Génération Identitaire", clambered on to the roof terrace of the headquarters of the Socialist party during the afternoon and unfurled a banner calling for the resignation of President François Hollande. They were rapidly dislodged and arrested by police.
Even before the violence broke out, the government said that there had been 96 arrests, mostly for possession of weapons.
The "marriage-for-all" law, allowing gay couples to marry in town halls and adopt children, passed its final legal and constitutional hurdles earlier this month.
The first officially recognised same-sex marriage in France will take place between two men in Montpellier on Wednesday.
The passage of the law, and warnings of possible violence, had been expected to dampen the ardour of protesters for what was billed as the "last demonstration" in a series of half a dozen large rallies that began in December. Police put the turn-out at 150,000. The organisers claimed 1,000,000. Other organisers estimated over 400,000, which seemed closest to the mark.
Same-sex marriage has provoked the most prolonged and powerful right-wing demonstrations in France for three decades. Since the law was passed, the movement has begun to splinter into moderate and extremist wings.
One of the principal leaders of the protests, the satirist turned activist Frigide Barjot stayed away from her own demonstration after receiving a flurry of death threats from extremist homophobes who accused her of being too moderate and a government "stooge".
"Frigide was wrong not to come," said Alain, 38, a lawyer who was demonstrating with his wife and two young sons. "The threat of violence is nothing in comparison to the threat we face from this law. This is just the beginning of a programme of legislation to impose the socialist ideology of one gender and to destroy the foundations of the family."
Many of the banners and signs in the protests made similarly apocalyptic claims about the importance of the law. The largest of the marches, starting in the well-heeled 16th arrondissement of Paris, was led by a 30ft-wide banner that proclaimed: "No to a change of civilisation."
The marchers insist that the real damage will come not from gay marriage but from allowing same-sex couples to adopt.
This, they say, will trample the fundamental principle that every child should have a mother and a father. It will also, they insist, blur or destroy the concept of "filiation" or parental origins and lead to a shallow, rootless, immoral society. As a result, many slogans appeared to complain about adoption or single-parent families as much as against gay marriage. "No, to the anonymity of origins" said one large banner held by 20 people.
Statistics: Posted by yoda — Sun May 26, 2013 7:38 pm
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Gay marriage is not about men marrying men or women marrying women, it is about the deconstruction of marriage between men and women
The Deconstruction of Marriage
- Daniel Greenfield
Thursday, March 28, 2013
The only question worth asking about gay marriage is whether anyone on the left would care about this crusade if it didn’t come with the privilege of bulldozing another civilizational institution.
Gay marriage is not about men marrying men or women marrying women, it is about the deconstruction of marriage between men and women. That is a thing that many men and women of one generation understand but have trouble conveying to another generation for whom marriage has already largely been deconstructed.
The statistics about the falling marriage rate tell the tale well enough. Marriage is a fading institution. Family is a flickering light in the evening of the West.
The deconstruction is destruction. Entire countries are fading away, their populations being replaced by emigrants from more traditional lands whose understanding of the male-female relationship is positively reactionary. These emigrants may lack technology or the virtues of civilization, and their idea of marriage resembles slavery more than any modern ideal, but it fulfills the minimum purpose of any group, tribe or country—it produces its next generation.
The deconstruction of marriage is not a mere matter of front page photos of men kissing. It began with the deconstruction of the family. Gay marriage is only one small stop on a tour that includes rising divorce rates, falling childbirth rates and the abandonment of responsibility by twenty and even thirty-somethings.
Each step on the tour takes apart the definition and structure of marriage until there is nothing left. Gay marriage is not inclusive, it is yet another attempt at eliminating marriage as a social institution by deconstructing it until it no longer exists.
There are two ways to destroy a thing. You can either run it at while swinging a hammer with both hands or you can attack its structure until it no longer means anything.
The left hasn’t gone all out by outlawing marriage, instead it has deconstructed it, taking apart each of its assumptions, from the economic to the cooperative to the emotional to the social, until it no longer means anything at all. Until there is no way to distinguish marriage from a temporary liaison between members of uncertain sexes for reasons that due to their vagueness cannot be held to have any solemn and meaningful purpose.
You can abolish democracy by banning the vote or you can do it by letting people vote as many times as they want, by letting small children and foreigners vote, until no one sees the point in counting the votes or taking the process seriously. The same goes for marriage or any other institution. You can destroy it by outlawing it or by eliminating its meaningfulness until it becomes so open that it is absurd.
Every aspect of marriage is deconstructed and then eliminated until it no longer means anything
Every aspect of marriage is deconstructed and then eliminated until it no longer means anything. And once marriage is no longer a lifetime commitment between a man and a woman, but a ceremony with no deeper meaning than most modern ceremonies, then the deconstruction and destruction will be complete.
The deconstruction of marriage eroded it as an enduring institution and then as an exclusive institution and finally as a meaningful institution. The trendy folk who claim to be holding off on getting married until gay marriage is enacted are not eager for marriage equality, they are using it as an excuse for an ongoing rejection of marriage.
Gay marriage was never the issue. It was always marriage.
In the world that the deconstructionists are striving to build, there will be marriage, but it will mean nothing. Like a greeting card holiday, it will be an event, but not an institution. An old ritual with no further meaning. An egotistical exercise in attention-seeking and self-celebration with no deeper purpose. It will be a display every bit as hollow as the churches and synagogues it takes place in.
The deconstruction of marriage is only a subset of the deconstruction of gender from a state of being to a state of mind. The decline of marriage was preceded by the deconstruction of gender roles and gay marriage is being succeeded by the destruction of gender as anything other than a voluntary identity, a costume that one puts on and takes off.
Destroying gender roles was a prerequisite to destroying gender
Destroying gender roles was a prerequisite to destroying gender. Each deconstruction leads naturally to the next deconstruction with no final destination except total deconstruction.
Gay marriage is not a stopping point, just as men in women’s clothing using the ladies room is not a stopping point. There is no stopping point at all.
The left’s deconstruction of social institutions is not a quest for equality, but for destruction. As long as the institutions that preceded it exist, it will go on deconstructing them until there is nothing left but a blank canvas, an unthinking anarchy, on which it can impose its perfect and ideal conception of how everyone should live.
Equality is merely a pretext for deconstruction. Change the parameters of a thing and it ceases to function. Redefine it and expand it and it no longer means anything at all. A rose by any other name might smell as sweet, but if you change ‘rose’ to mean anything that sticks out of the ground, then the entire notion of what is being discussed has gone and cannot be reclaimed without also reclaiming language.
The left’s social deconstruction program is a war of ideas and concepts
The left’s social deconstruction program is a war of ideas and concepts. Claims of equality are used to expand institutions and ways of living until they are so broad as to encompass everything and nothing. And once a thing encompasses everything, once a rose represents everything rising out of the ground, then it also represents nothing at all.
Deconstruction is a war against definitions, borders and parameters. It is a war against defining things by criminalizing the limitation of definitions. With inclusivity as the mandate, exclusivity, in marriage, or any other realm, quickly meets with social disapproval and then becomes a hate crime. If the social good is achieved only through maximum inclusivity and infinite tolerance, then any form of exclusivity, from property to person to ideas, is a selfish act that refuses the collective impulse to make all things into a common property with no lasting meaning or value.
As Orwell understood in 1984, tyranny is essentially about definitions. It is hard to fight for freedom if you lack the word. It is hard to maintain a marriage if the idea no longer exists. Orwell’s Oceania made basic human ideas into contradictory things. The left’s deconstruction of social values does the same thing to such essential institutions as marriage; which becomes an important impermanent thing of no fixed nature or value.
The left’s greatest trick is making things mean the opposite of what they do. Stealing is sharing. Crime is justice. Property is theft. Each deconstruction is accompanied by an inversion so that a thing, once examined, comes to seem the opposite of what it is, and once that is done, it no longer has the old innate value, but a new enlightened one.
To deconstruct man, you deconstruct his beliefs and then his way of living. You deconstruct freedom until it means slavery
To deconstruct man, you deconstruct his beliefs and then his way of living. You deconstruct freedom until it means slavery. You deconstruct peace until it means war. You deconstruct property until it means theft. And you deconstruct marriage until it means a physical relationship between any group of people for any duration. And that is the opposite of what marriage is.
The deconstruction of marriage is part of the deconstruction of gender and family and those are part
of the long program of deconstructing man. Once each basic value has been rendered null and void, inverted and revealed to be random and meaningless, then man is likewise revealed to be a random and meaningless creature whose existence requires shaping by those who know better.
The final deconstruction eliminates nation, religion, family and even gender to reduce the soul of man to a blank slate waiting to be written on.
It is not about whether men can get married, but whether marriage will mean anything at all
That is what is at stake here. This is not a struggle about the right of equality, but the right of definition. It is not about whether men can get married, but whether marriage will mean anything at all. It is about preserving the shapes and structures of basic social concepts that define our identities in order to preserve those very concepts, rather than accepting their deconstruction into nullification.
The question on the table is whether the institutions that give us meaning will be allowed to retain that meaning. And that question is a matter of survival. Societies cannot survive without definitions. Peoples do not go on existing through the act of occupying space. The deconstruction of identity is also the destruction of identity.
And that is what we are truly fighting against.
Daniel Greenfield is a New York City writer and columnist. He is a Shillman Journalism Fellow at the David Horowitz Freedom Center and his articles appears at its Front Page Magazine site.
Statistics: Posted by yoda — Thu Mar 28, 2013 12:35 pm
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On Tuesday and Wednesday the Supreme Court will hear oral argument in Hollingsworth v. Perry, the challenge to California’s Proposition 8, and U.S. v. Windsor, the challenge to Section 3 (federal definition of marriage) of the Defense of Marriage Act. A Ninth Circuit panel, with liberal Judge Stephen Reinhardt writing, had invalidated Prop 8 on relatively narrow grounds; a Second Circuit panel, with conservative Chief Judge Dennis Jacobs writing, had invalidated Section 3 of DOMA on Equal Protection grounds.
The range of possible outcomes for the two cases is quite wide. At one end, the Court could reverse both appellate decisions, restoring the California ban on gay marriage and confirming the legal definition of marriage as opposite-sex-only for purposes of federal programs such as taxation (at issue in Windsor) and federal employee pensions. At the other end, the Court could apply Equal Protection Clause principles to declare that marriage licenses must be available in all states to all otherwise qualified couples regardless of sex. In between are many intermediate outcomes. Both cases, especially Perry, raise issues of litigant standing that might enable or require the Court to set aside the ultimate merits and render a decision with little or no precedential impact on future cases.
The Cato Institute has filed amicus briefs in both cases. In its active amicus program Cato has long taken a broad view of Equal Protection Clause protections, and in this case joined with the Constitutional Accountability Center to file briefs in Perry and Windsor urging that marriage be made available without distinction of sex on Equal Protection grounds. (It’s an “odd-couple” alliance in that CAC is known for its progressive view of the Constitution and regularly winds up on the opposite side from Cato on other high court issues such as ObamaCare and campaign finance.) Ilya Shapiro discusses Windsor and Perry; Constitutional Law Prof Blog provides an analysis of the Cato/CAC Windsor brief. The Daily Press (Hampton Roads, Va.) cites our arguments in its new editorial.
The Heritage Foundation, which of late has crusaded against same-sex marriage on both legal and substantive grounds, collects and summarizes some of the many briefs filed by those on its side of the controversy.
Quite a few scholars and public commentators have invoked federalism and called attention to possible resolutions that defer to the various states. A “federalism scholars’ brief” in DOMA (described here by Ilya Shapiro) signed by, among others, four law professors who blog at Volokh Conspiracy (Jonathan Adler, Dale Carpenter, Randy Barnett, and Ilya Somin) supports striking down section 3 of DOMA not directly on Equal Protection grounds, but because of its attempt to inject federal policy into a field (domestic relations) historically occupied by state law. [More: Jonathan Adler exchange with Nicholas Rosenkranz and Ed Whelan.]
Separately, in a Wall Street Journal piece, widely respected Stanford law professor and former judge Michael McConnell writes that the pair of cases “offers the justices a golden opportunity to resolve these cases without setting a precedent either way, and to reaffirm the ideal of democratic, decentralized decision-making.” To do that, he suggested the Court might want to dodge Perry on standing grounds while upholding Windsor on the ground “that DOMA improperly intrudes on the reserved powers of the states.” Syndicated columnist George Will, who is critical of the attempt to invoke social science as a reason to overturn Prop 8, calls DOMA an intrusion on traditional state law and suggests that “a jurisprudence true to conservative principles, properly understood” would get rid of it.
The Federalist Society has a symposium with two defenders of Prop 8/DOMA (John Eastman and Nelson Lund) and two critics (Dale Carpenter and Ilya Shapiro). Libertarian law professor Richard Epstein finds originalism at odds with liberty in the cases. Ilya Somin, tracking Georgetown’s Marty Lederman, outlines the Court’s options in the Prop 8 case.
Some of the amicus briefs on the traditionalist side invoke the “gay marriage is bad for children” argument, which I’ve contested before. Recent revelations confirm suspicions that in the rush to publication of the extremely controversial Mark Regnerus study, often misrepresented as indicating bad outcomes from same-sex parenting, use in Supreme Court argumentation was one consideration.
In the coming week I and others at Cato will be appearing at public events in Washington, D.C., headlined by a Wednesday event with Ilya Shapiro, Ken Mehlman and Evan Wolfson (register here), as well as broadcast commentary on the unfolding story.
[cross-posted from Overlawyered, where it ran in slightly different form]
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Jim DeMint, former senator and future president of the Heritage Foundation, writes a column for USA Today opposing gay marriage. But like so many social conservatives, he supports his position with a sleight of hand. DeMint writes:
Without strong families grounded in marriage, we cannot hold back the ever-expanding power of government. As the marriage culture weakens, Big Government grows. Just look how the welfare state has expanded as the unwed childbearing rate has grown from single digits in the 1960s to more than 40% today.
Marriage policy exists to encourage a man and a woman to commit to each other permanently and exclusively as husband and wife and to be father and mother to any children. Sound marriage policy strengthens civil society and reduces the role of government.
The erosion of marriage costs taxpayers. And it’s not just conservatives who say this. Even the left-leaning think tank, Brookings Institution, attributed $229 billion in welfare expenditures between 1970 and 1996 to the breakdown of marriage.
Yes indeed. Stable families are less likely to be on welfare. As Ron Haskins and Isabel Sawhill of Brookings write,
Our research shows that if you want to avoid poverty and join the middle class in the United States, you need to complete high school (at a minimum), work full time and marry before you have children. If you do all three, your chances of being poor fall from 12 percent to 2 percent, and your chances of joining the middle class or above rise from 56 to 74 percent.
But DeMint and other social conservatives make a logical leap when they connect that point to gay marriage. Gay people making the emotional and financial commitments of marriage is not the cause of family breakdown or welfare spending.
When DeMint says that “family breakdown” is causing poverty – and thus a demand for higher government spending – he knows that he’s really talking about unwed motherhood, divorce, children growing up without fathers, and the resulting high rates of welfare usage and crime.
So why raise the problems of broken families and then propose to prevent gay people from getting married? Why all the focus on issues that would do nothing to solve the problems of “family breakdown” and what DeMint has elsewhere called “the high cost of a dysfunctional society”? Well, solving the problems of divorce and unwed motherhood is hard. And lots of Republican and conservative voters have been divorced. A constitutional amendment to ban divorce wouldn’t go over very well with even the social-conservative constituency. A legal ban on premarital sex would address the problem, but even social conservatives realize that it would be an imprudent exercise of state power. Far better to pick on a small group, a group not perceived to be part of the Republican constituency, and blame them for social breakdown and its associated costs.
But you won’t find your keys on Main Street if you dropped them on Green Street, and you won’t reduce the costs of social breakdown by keeping gays unmarried and not letting them adopt orphans.
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Dan Balz writes in the Washington Post, as many reporters have this week,
In 2004, Republicans used ballot initiatives barring same-sex marriage to spur turnout among their conservative voters. That strategy helped then-President George W. Bush win reelection.
But did it? I argued in 2006 that it didn’t:
It’s true that states with such initiatives voted for Bush at higher rates than other states, but that’s mostly because the bans were proposed in conservative states. In fact, Bush’s share of the vote rose just slightly less in the marriage-ban states than in the other states: up 2.6 percent in the states with marriage bans on the ballot, up 2.9 percent in the other states.
Political scientist Simon Jackman of Stanford has more here (pdf). He concludes that the marriage referenda tended to increase turnout but not to increase Bush’s share of the vote. And in a county-by-county analysis of Ohio, he found no clear relationship between increased turnout, support for the marriage ban, and increased support for Bush.
Matthew Dowd made the same point yesterday:
Speaking from experience as the chief strategist in 2004 for President Bush, I saw in close detail how little gay marriage could influence turnout of conservatives or evangelicals. In 2003 and 2004, we did a series of public opinion tests on different messages related to the micro targeting project that would cause voter groups to turn out more in President Bush’s favor. We tested social issues as well as messages related to the economy, national security, taxes and the size of the federal government. Not a single social issue (which included gay marriage) fell on the effectiveness scale in the top eight messages.
Further, in analyzing the election returns in the aftermath of the 2004 presidential race an interesting set of data was revealed. In states that had gay marriage amendments on the ballot including key target states, there was no statistical difference in turnout of conservatives from states that did not have these amendments on the ballot. Gay marriage had no effect on turnout even among the most conservative potential voters in both the data before Election Day and the returns on Election Day.
Other senior officials from the 2004 Bush campaign confirm: It wasn’t gay marriage that brought social conservatives to the polls, it was national security and the war on terror.
At any rate, as Balz noted, the politics of gay marriage have changed for sure, in Ohio and elsewhere.
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This morning the Supreme Court hears oral argument in Hollingsworth v. Perry, the Prop 8 case, previewed in this space yesterday and the topic of much past attention at Cato. Over the past 48 hours Cato scholars and friends have been writing up a storm:
* An editorial in the Wall Street Journal contends that the issue should be left to the political process. In response, Cato constitutional studies director Roger Pilon says the Journal goes fundamentally astray on (among other things) whether the Equal Protection Clause was meant to apply only to some short list of “protected classes,” and whether the Perry and Windsor cases resemble Roe v. Wade (they don’t).
* At Reason, Cato’s Ilya Shapiro debates Jonathan Adler on the merits of the “federalists’ brief” urging the Court to strike down DOMA section 3 as an intrusion into a field (domestic relations law) historically occupied by the states, which Ilya finds unconvincing. Plenty of debate on that topic at Volokh Conspiracy.
* In articles at Hoover’s Defining Ideas and Ricochet, Cato adjunct scholar Richard Epstein explains why he finds originalism in tension with liberty on the issue, and has some advice for Justice Anthony Kennedy.
* Last chance to register for Cato’s all-star panel tomorrow with former Republican National Committee head Ken Mehlman (NPR profile), Freedom to Marry founder Evan Wolfson (BuzzFeed profile), and Cato’s Ilya Shapiro (AFF profile). You can also watch live online here, and comment on Twitter at hashtag #CatoEvents.
* I’ve got another roundup at Overlawyered noting tomorrow’s panel and other upcoming events, and summarizing a panel on related issues held at Cato last week; I also note the paradox in one recent poll in which a non-trivial number of participants took the view both that same-sex marriage is a right under the U.S. constitution, and that states should be left to go their own ways on whether to recognize it.
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The idea of equality under the law dates back to the foundations of democracy and the ancient Greek word “isonomia.” “Equal justice under law” remains so essential today that it is engraved in the cornice of the Supreme Court building.
In 1868, Congress and the states codified this important ideal into the Equal Protection Clause of the Fourteenth Amendment: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” As the text and history of the Fourteenth Amendment plainly show, the Equal Protection Clause guarantees to all persons — regardless of race, sex, or any other group characteristics — equality under the law, including the legal right to marry the person of one’s choosing.
In 2008, however, California voters passed Proposition 8, a ballot initiative reversing a California Supreme Court ruling that had authorized same-sex marriage and restricting the right to marry to opposite-sex couples only. Both the federal district court and the Ninth Circuit Court of Appeals ruled that Prop. 8 was unconstitutional, for reasons ranging from the violation of a fundamental right to the impropriety of removing rights/benefits once granted.
With the case, Hollingsworth v. Perry, now before the U.S. Supreme Court, the Cato Institute has joined the Constitutional Accountability Center (CAC) on an amicus brief that focuses on supporting marriage equality under the Equal Protection Clause. Our brief explains that the purpose of the Fourteenth Amendment was not exclusively to address the disparaged rights of former slaves but, as the historical record shows, was intended to be universal in its protection of “any person” within U.S. jurisdiction.
The broad and sweeping guarantee of legal equality was understood at the time to secure and protect the equal rights of all individuals, so as to prohibit arbitrary and invidious discrimination. The framers of the Fourteenth Amendment understood marriage to be a personal, individual right that, when established by a state, must be made available on an equal basis to all.
Moreover, the Constitution also protects fundamental rights against state infringement under the substantive liberty provisions of the Fourteenth Amendment. Decades of Supreme Court cases protecting the equal right to marry — without regard to race, being behind on child support payments, or even imprisonment — have been rooted in both the Equal Protection Clause’s guarantee of equality under the law and the Fourteenth Amendment’s broader liberty protections, which converge in securing for all persons an equal right to marry.
Prop. 8 denies gays and lesbians the liberty to marry the person of their own choosing, places a badge of inferiority on same-sex couples’ loving relationships and family life (with the full authority of the state behind it), and perpetrates an impermissible injury to these individuals’ personal dignity. It thus directly subverts the principle of equality at the heart of the Fourteenth Amendment, and is an affront to the inalienable right to pursue one’s own happiness that has guided our nation since its founding.
We urge the Supreme Court, which will hear Perry on March 26, to invalidate Prop. 8 as a violation of the foundational guarantee that all persons shall have equality under the law.
See also my op-ed with CAC’s Doug Kendall, which further explains our reasoning – and stay tuned for another joint brief tomorrow in United States v. Windsor, the Defense of Marriage Act case also on the Court’s docket this term.
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By Walter Olson
Since last month’s election I’ve been analyzing the voter shifts on Nov. 6 that carried gay-marriage advocates to victory in four states, after years of defeats. Yesterday the Washington Post “Outlook” section ran a piece in which I documented one of the most noteworthy shifts: Republican voters, especially in suburbs, crossed over in droves to break with their party’s official position. A few highlights:
- Mitt Romney carried 18 counties in Maryland; in two of the three biggest, Anne Arundel and Frederick, the same-sex marriage referendum won outright. In 11 of the 18, Question 6 ran stronger than President Obama, a sign that more GOP voters were crossing over in support of it than Democrats were crossing the other way.
- In greater Minneapolis-St. Paul, 47 towns and cities that voted for Romney also rejected Amendment One, the gay-marriage ban. Many suburban communities where Republicans tend to dominate or run competitively buried Amendment One with 60 percent of their vote.
- In all three states studied — Maine as well as Maryland and Minnesota — the swings were most pronounced in executive/commuter suburbs with many well-educated and economically successful residents.
The article is here, and includes some thoughts on the debate in progress over how if at all the GOP should recast its approach to be more successful with voters. I also appeared on this Cato podcast last week to discuss the findings, and published more detailed breakdowns of the Maryland vote at the Huffington Post here and here.
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By Ilya Shapiro
Elane Photography, a Christian-identified business in Albuquerque, N.M., declined to photograph Vanessa Willock’s same-sex commitment ceremony based on the business owners’ personal beliefs. New Mexico law prohibits any refusal to render business services because of sexual orientation, however, so Willock filed a claim with the New Mexico Human Rights Commission. She argued that Elane Photography is a “public accommodation,” akin to a hotel or restaurant, that is subject to the state’s anti-discrimination law.
The commission found against Elane and ordered it to pay $6,600 in attorney fees. Elane Photography’s owners appealed the ruling, arguing that they are being denied their First Amendment right to the free exercise of religion (and a similar provision in the state constitution). Furthermore, New Mexico’s Religious Freedom Restoration Act defines “free exercise” as “an act or a refusal to act that is substantially motivated by religious belief” and forbids government from abridging that right except to “further a compelling government interest.”
The state trial and appellate courts affirmed the commission’s order. Elane Photography v. Willock is now before the New Mexico Supreme Court, where Cato has joined UCLA law professor Eugene Volokh and University of Minnesota law professor Dale Carpenter—who, like Cato, support gay marriage—in filing an amicus brief siding with Elane Photography on free speech grounds.
Our brief explains that photography is an art form protected by the First Amendment because clients seek out the photographer’s method of staging, posing, lighting, and editing. Photography is thus a form of expression subject to the First Amendment’s protection, unlike many other wedding-related businesses (e.g., caterers, hotels, limousine drivers).
The U.S. Supreme Court has already ruled in Wooly v. Maynard that photography is protected speech—even if it’s not political and even if the photos are used for commercial value—and that speech compulsions (forcing people to speak) are just as unconstitutional as speech restrictions. The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all.” Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other photographers in the same area.
The New Mexico Supreme Court should thus reverse the lower court’s ruling and allow Elane Photography to be free to choose the work it desires.
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