Tuesday, March 4, 2014

Here we go again - at Witherspoon Institute's pseudo-intellectual blog

Adam J. MacLeod
Witherspoon's blog is, perhaps, more interesting for who is blogging than what they are blogging about. There are certain connections that you can count on. You just have to find them.

Today it's Adam J. MacLeod who writes “What’s at Stake at the Bakery: How Property Rights Got Sexy.” The article is idiotic. I'll deal with that later. As for Mr. MacLeod, he is an associate professor at Faulkner University (Christian) Law School in Montgomery, AL. The fourth-tier school (not ranked by USN&WR) is, perhaps, for people who cannot meet the rigorous entrance requirements of Liberty Law or Regent Law.


Mr. MacLeod received his BA from Gordon College, a Christian institution in MA and then went on to Notre Dame's law school. He graduated (magna cum laude - so he's no dummy) circa 2000 and seems to have practiced in Boston for a time; arriving at Faulkner in 2007. Last academic year, MacLeod was a visiting fellow at the James Madison Program at Princeton. And who is the director of the James Madison Program? None other than Robert P. George, co-founder of Witherspoon and National Organization for Marriage.

MacLeod's inane need-to-discriminate summary:
State lawmakers should make it clear that religious and moral reasons are rational and legitimate, and that property owners may act or refrain from action in obedience to conscience.
MacLeod goes on (or off) to write:
Even property law is sexy now. It is perhaps a measure of how thoroughly sexualized our culture has become that a subject that has caused countless first-year law students to nod off during 8:00 AM classes has been transformed into the latest front in the culture wars, a battleground between sexual expression and religious conscience.

Kansas, Arizona, Missouri, and Georgia have considered or are considering legislative measures designed to protect the liberty of property owners to obey conscience.
In other words we have the right to tell anyone “get off my lawn!” At one time, Mr. MacLeod probably had designs on being an attorney specializing in property rights which sure beats the hell out of instructing the the academic detritus at Faulkner.

The problem with all of this is that this has little to do with property rights. In contrast, this is about businesses operating as public accommodations. While sexual orientation is not part of the Civil Rights Act of 1964, the act has been integral in the formation of public policy. Public Accommodations have a business license from the state which is deemed a privilege. Moreover, to be open to the public these businesses are consumers of goods and services paid for by all taxpayers.

Many states and locales have improved the Civil Rights Act with local laws that prohibit discrimination on the basis of sexual orientation. It is ironic that most of the states not honoring the spirit of non-discrimination are those that prompted the 1964 legislation in the first place due to legal segregation. Even MacLeod, regarding the 1964 act. notes:
In essence, these laws established a bright-line rule. Exclusion on the basis of race is always unreasonable, and therefore unlawful. These laws pick out motivations for exclusion that are never valid reasons. This wasn’t really a change in the law—it was never reasonable to discriminate on the basis of race—but rather a conclusive statement of what the law requires.
The piece is painfully verbose but MacLeod tries to explain his contradiction with this bit of unimaginative BS:
Unfortunately, some public lawmakers have arrogated to themselves the authority to decide these questions with uniform rules for everyone, despite the law. They have declared religious and moral convictions out-of-bounds. This arrogation of power forecloses the sort of commonsense distinctions that property law enables. Why is it unreasonable for a photographer to serve all people, including those who self-identify as homosexual, but to refuse to endorse by her conduct the claim that a same-sex commitment ceremony is, in fact, a wedding? If a jury or other competent fact-finder determines that the photographer has a sincere moral or religious conviction that marriage is the union of a man and a woman (and therefore does not include a same-sex couple, a polyamorous group, a polygamous family, and so on), then the photographer has a reason not to use her property (in this case, her camera and her business) to endorse what she believes to be a lie.
What MacLeod is trying to suggest is that a case for discrimination would be determined by triers of fact (a jury) who might very well determine that the discrimination was justified. It's nonsense because, even in a jury trial, the judge admonishes jurors to follow the law precisely as he explains it. The simple question is limited to whether or not certain conduct violated the law. The hypothetical photographer is probably the New Mexico photographer who has now had five dips in the legal pool; The New Mexico Civil Rights Commission, federal district court, state court, state appeals court and the New Mexico Supreme Court. The score, she zero for five.

What MacLeod is suggesting is in contradiction to Justice Scalia in Employment Division v. Smith. In essence, Scalia wrote (for the majority) that religious exemptions to otherwise valid laws render those laws unenforceable.

If this people don't want to serve gays then they can hang a sign saying that they disapprove of same-sex marriage. They can even use scare quotes around the word marriage. Then we can choose who we wish to do business with.

Choice rests with us; not those who would discriminate.
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