Libertarian legal scholar Richard Epstein discusses the conflict over religious exemptions to antidiscrimination laws at Hoover “Defining Ideas” and in a related podcast at Acton Institute. He suggests that it might be helpful to refocus the concept of “public accommodations” on businesses held to common carrier principles, typically because of elements of monopoly:
Historically, Title II [of the Civil Rights Act of 1964, with public accommodation provisions] had two potent justifications. The first is that it was a necessary corrective against massive abuses of state power under Jim Crow. Thankfully, that risk is gone today. The other justification was that the traditional common law view — still good today — that any common carrier or public utility, by virtue of holding a monopoly position, was duty-bound to take all customers on reasonable and nondiscriminatory terms. When ordinary people have nowhere else to go for power, water, or transportation, they are entitled to get these services at reasonable rates. The rule covered all cases of racial discrimination, but it was not limited to it.
The implicit drawback of this position was that there was no duty to serve anyone in a competitive industry, precisely because disappointed customers had a full range of alternatives to which they could turn. The common law rightly held that refusals to deal in competitive industries counted as basic liberties.
On my trip to San Francisco last week I was delighted finally to meet Kevin Underhill, longtime writer of one of the most consistently funny and well-written of legal blogs, Lowering the Bar. If there were any justice in the world I would link a post of Kevin’s every day or two, but for the moment I’ll just note this one from last month: For years now, China has “forbidden anyone to reincarnate without [its] express written permission.”
On Tuesday the Cato Institute held a daylong conference on religious liberty. It was interesting throughout, but especially for its afternoon session on public accommodations, featuring Roger Pilon of Cato, Louise Melling of the American Civil Liberties Union (ACLU), and
Mark Rienzi of the Becket Fund for Religious Liberty and Catholic University. Coverage: Ramona Tausz, The Federalist.
Also notable as a cogent summary of the state of play on the federal Religious Freedom Restoration Act and its state equivalents (RFRAs), the luncheon keynote speech by University of Virginia law professor Doug Laycock, of FOIA-controversy fame:
More videos from other sessions at the conference page.
A new Cato podcast with Jay Richards and Caleb Brown explores the relationship between economic and religious liberty. Related: Ilya Shapiro and Michael McConnell on the Supreme Court’s punt in the Little Sisters of the Poor case (Zubik v. Burwell) on ObamaCare religious accommodation. And Cato will be holding a day-long conference on religious liberty Jun. 14 with Doug Laycock, Roger Pilon, Hon. William Pryor, and many other formidable names. More information, and online registration, here.
Last summer I was a panelist in New York City when the law firm of Fried Frank hosted its 15th annual Michael R. Diehl Civil Rights Forum, on the topic of “Balancing Liberties: The Tension between LGBT Civil Rights and Religious Exemptions.” It’s now been posted online. Other participants included Marci Hamilton (Cardozo Law School and private practice) and Rose Saxe (ACLU). Of the three, I was the panelist who defended the broadest legislative scope for exemptions based on conscience and religious scruple from laws of otherwise general applicability. Jesse Loffler moderated.
- How the courts came to extend First Amendment protection to art, music, movies, and other expression not originally classed as “press” or “speech” [new Mark Tushnet, Alan Chen, and Joseph Blocher book via Ronald Collins]
- Cato amicus: church enterprises should be eligible for recycling program on same terms as secular businesses [Ilya Shapiro and Jayme Weber]
- “A Political Attack On Free Speech And Privacy Thwarted — For Now” [George Leef, Forbes on AFP v. Harris, earlier] Bill filed by Rep. Peter Roskam would keep IRS from collecting names of donors to nonprofits [Center for Competitive Politics]
- Newly enacted Tennessee conscience exemption for psychological counselors and therapists avoids some of the dangers of compelled speech [Scott Shackford, Reason]
- Cook County Sheriff Thomas Dart, benchslapped by Judge Richard Posner after sending credit card companies letters urging them to cut off dealings with Backpage.com, now seeks Supreme Court certiorari review [Ronald Collins, earlier here, here, and here]
- One problem with that Mississippi law: it gives extra protection to some religious beliefs about sex and marriage but not others [Popehat; my guest appearance on Mike Slater show, San Diego’s KFMB]
Enough already with the bans on so-called inessential travel: short of an impending civil war, boycotts, sanctions, and embargos against U.S. states by the governments of other U.S. states and cities are a truly bad idea [Nathan Christensen, Washington Post]
Relatedly, Gillian White quotes me in the Atlantic on North Carolina’s HB 2 controversy, the latest in a series of battles over discrimination law, religion, business, and LGBT persons, at this point almost entirely symbolic to large publics on both sides, with the considerable differences between particular enactments (Georgia, Mississippi, Indiana, etc.) seeming to matter relatively little. Finding accurate reporting on what the employment provisions of North Carolina’s HB 2 would do is not easy, as Robin Shea discovered [Employment and Labor Insider]
Sen. Ligon misstates the scope of North Carolina’s new law when he writes that “the new law simply prevents local governments from forcing business owners to adopt” policies on transgender bathroom use. As a libertarian, I would be fine with the new law if that were all it did, but in fact Sen. Ligon is describing only Part III of the bill. Part I of the bill imposes affirmative, uniform new duties of exclusion on North Carolina government entities such as schools, town halls, courthouses, state agencies and the state university system, taking away what had generally been at local discretion. This not only will inflict needless burdens on a small and vulnerable sector of the public, but presumes to micromanage local governments and districts in an area where they had not been shown to be misusing their discretion. Whatever the merits of the rest of the bill, the provisions on state-furnished bathrooms are a good example of how legislation in haste from the top down can create new problems of its own.
Both sides in the culture war are gearing up for a fight in Congress on the proposed First Amendment Defense Act (FADA), which would establish various rights for persons and institutions who object to same-sex marriage. The bill’s text, however, has proved a moving target (earlier here and here). Scott Shackford at Reason gets farther into the details than the mainstream media has done.
Relatedly, Rod Dreher writes at the American Conservative that as a social conservative who resisted gay marriage, but now considers that cause lost, he believes fellow thinkers concerned with religious liberty should look to ally with libertarians. He recommends Shackford’s recent piece in Reason (which quotes me on adoption issues) noting the organized gay movement’s ever wider split from libertarians on issues of central government power, individual liberty and free association.