I don't think the ACLU argument in Hurley is either bizarre or the product of interest group politics. A good amicus brief should assist the Court irrespective of whether it supports a party. Though the ACLU, like other organizations, often agrees with one party or another, and signals that agreement by filing an amicus in support of one or the other party, from time to time it will file an amicus in support of neither party that seeks to elaborate sound constitutional doctrine; in essence, if not in form, its client is the bill of rights.
Individual litigants sometimes do not make every argument a court ought to consider in a particular case; when that case involves only private interests, the consequences rightly fall on the ligitant who fails to advance an argument. But when the case involves public interests, and particularly when it is before a court whose judgment is likely to influence if not control a broad range of cases, relying exclusively on individual litigants to present arguments risks warping constitutional doctrine. Courts review judgments, not reasoning; if the judgment of the New Jersey court had been correct on the record before it, the Court was obliged to affirm even if the reasoning of the New Jersey Supreme Court was entirely flawed. To the extent that the New Jersey judgment might have been correct if the record evidence of state action were sufficient to make the parade government speech, then there is nothing unprincipled in the suggestion that the Court, or a lower court, ought to consider that possibility. The ACLU makes occasional missteps, but I don't see evidence of that in its position in Hurley. Michael R. Masinter 3305 College Avenue Nova Southeastern University Fort Lauderdale, Fl. 33314 Shepard Broad Law Center (954) 262-6151 [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel On Tue, 20 Apr 2004 [EMAIL PROTECTED] wrote: > I wasn't privy to the internal politics of the ACLU on this one, but it's > pretty clear that the organization was reluctant to take the "anti-gay rights" > point of view, despite the clear countervailing First Amendment interest of the > parade organizers. By the time the case got to the Supreme Court, the gay > rights group that was suing the parade organizers had dropped the argument, > soundly rejected by the trial court, that the parade was anything but a private > parade with no government sponsorship. For the ACLU to take the position that a > remand was in order at that point was just bizarre, and could only be explained > by either an incredible lapse in legal judgment, or, more likely, as an "out" > that allowed the ACLU to avoid the bad p.r. from its liberal constituencies > that would come from being on the "wrong" side of a gay rights case while > still not betraying its First Amendment principles. If Mr. Spitzer has a more > coherent explanation of why the ACLU was unwilling to file a brief supporting the > parade organizers, I'd love to hear it. > > In a message dated 4/20/2004 9:01:44 AM Eastern Standard Time, > [EMAIL PROTECTED] writes: > I am pleased to stand corrected. > Marc Stern > ----- Original Message ----- > From: <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Sent: Monday, April 19, 2004 6:02 PM > Subject: Re: HAnsen v. Ann Arbor Public Schools 293 FSupp2d 780 > > > > > In a message dated 4/19/04 4:58:49 PM, [EMAIL PROTECTED] writes: > > > > >This is especially so since in the Boston parade cases,if > > >memory serves,the ACLU did not support the right of parade organizers to > > >exclude marchers expressing a gay rights point of view. > > > > The ACLU's amicus brief strongly supported the right of private parade > > organizers to exclude marchers expressing a gay rights (or any other) > point of view. > > I've pasted below an excerpt from the Summary of Argument section of the > > ACLU's brief. > > Art Spitzer > > ACLU > > Washington DC > > > Professor David E. Bernstein > George Mason University School of Law > http://mason.gmu.edu/~dbernste > blog: http://volokh.com/index.htm?bloggers=DavidB > *********************************************** > My latest book, You Can't Say That! > The Growing Threat to Civil Liberties > from Antidiscrimination Laws, has just > been published > *********************************************** > _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
