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Spinning the Law

Kendall Coffey on Discrimination


Kendall Coffey appeared on the Steve Malzberg Show for the Spinning the Law Segment on November 14, 2013.  Kendall Coffey and Steve Malzberg discussed the fight against the birth control mandate, the right of a business to deliver service based on religious beliefs, and the lawsuit against Spike Lee for a Twitter post.

An appeals court in Chicago blocked the birth control mandate, ruling that it is too much of a burden to force religious institutions to provide coverage for birth control.  Is this very significant, or am I over stating it?

 

“You’re not over stating it.  The 7th Circuit in the middle of the country in Chicago is considered the centrist court.  It isn’t viewed as overly liberal or conservative.  It’s a very respected court, and while there are other Federal Appeals Courts weighing in on both sides of this issue.  This is an issue, from a legal standpoint, ever since the Supreme Court made the major decision upholding the law, this the one question legally, the one of a contraception mandate, that has gotten a huge amount of attention.  Now for the first time a respected, middle of the road appeals court has actually blocked the enforcement of the law.  So there are some very significant elements of that not the least of which is that the court itself is considered a very moderate court.  But for an appeals court to actually issue an order blocking a federal law, that’s a real big deal.”

 

“I’m sure the appeals court is considering, as all the courts do in this area, the implication of the Citizens United case.  That is, as we know, in the context of campaign contributions that companies are within the scope of the first amendment rights. If that is the case for political expression, what about the part of the first amendment that protects religious freedom?”

 

Two photographers refused to shoot a homosexual wedding.  The laws in NM said the photographers could not legally refuse to serve.  The couple is appealing the law.

 

“We can talk about what courts have to balance competing interests.  We have on one hand a momentous value that our society respects.  What value is more cherished in our entire constitution than religious freedom?  As you know, when this country was founded, when the first amendment was enacted, there was probably no part of that first amendment that was more important to our founders.  Obviously since 1954 in Brown vs. the Board of Education the policies concerning discrimination have gained ever-increasing force.  So now, these two policies collide in what is a very well defined battle.  Because when you talk about these photographers, their claim of religion seems to be legitimate.  They have said that these are sincere values, they aren’t looking for an excuse to avoid the law, they are standing up for what they believe.  On the other hand, we know that the states have laws that can prohibit a broad range of discriminatory conduct, including who you do business with.  So, it’s a remarkable and profound collision. It seems like the perfect case to tee up and give the Supreme Court the chance to look at these kinds of competing considerations and give some decision making that hasn’t happened before.  The question is, will they want this one?  Will this one be seen as too controversial?  Could they just say ‘leave it to New Mexico, that’s the decision the state has made’?”

 

“The issues couldn’t be better presented for the Supreme Court to make a decision.  The Supreme Court seems to want to strengthen religious values in our constitutional system.  They want to give more protection.  I am referring to the majority of the Supreme Court.  I think we’ll see that with the recent case about the prayer during the town council meetings.  I think religion is going to win that.  Do they want to make this a test case for religious freedom given the inevitable controversy the case would bring in terms of those who would consider themselves opponents of discrimination in any form?  As important and powerful as these questions are in this case, it’s possible the Supreme Court could say they want to make sure religious freedom is advanced during this court’s tenure, but this case maybe bring an awful lot of controversy with it.”

 

Spike Lee tweeted address to Zimmerman’s home but it was the wrong address.  Couple received hate mail and suing Spike Lee.

kendall coffey spike lee

“People who value the law as you and I do like to say that for every wrong there must be a remedy.  This certainly seems like a wrong, at least the way it’s presented by the plaintiffs.  And one might think there must be some kind of remedy if indeed they suffered what we understand could well have been a firestorm of threats and abuse.  But a few years back the Supreme Court of Florida decided that the kind of claim for what they call violation of privacy — putting somebody or casting somebody in a false light through publicity that’s damaging, that by itself is no longer, in the state of Florida, a valid basis to bring a claim for damages.  What these individuals would have to claim is either something called intentional infliction of emotional distress, and it’s hard to think that they can show enough intentionality.  Maybe they can on the part of Spike Lee.  Or, they can present it as a claim of defamation, maybe they can get somewhere.  But, despite what makes us all sympathetic, if indeed what happened here is as they describe it, I’m not convinced they’re going to get to first base, and certainly not to second base, in terms of a lawsuit.  Given that the decision the Supreme Court of Florida made, which actually gives less protection for individuals whose privacy rights are invaded and are wrongly subjected to negative publicity.”

To learn more about Kendall Coffey, former U.S. Attorney, click here.

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