New on LGBT issues and the law: religious tax exemptions, Title VII coverage

On Thursday evening, “at a CNN candidate forum on gay rights, CNN’s Don Lemon asked Democratic candidate Beto O’Rourke: ‘religious institutions like colleges, churches, charities. Should they lose their tax-exempt status if they oppose same-sex marriage?’ O’Rourke answered ‘Yes’.” But O’Rourke’s dead wrong as a matter of politics, policy, and law, as I explain Friday post at Cato. I call his proposal “illiberal, anti-pluralist, inflammatory — and unconstitutional under current Supreme Court precedent,” and that’s just getting started. More: Bonnie Kristian/The Week; Charlie Nash, Mediaite (O’Rourke’s comments blasted by writers from across ideological spectrum). And: Dale Carpenter (principle of viewpoint neutrality in tax exemption law was vital to early gay rights movement; arguments O’Rourke uses against conservative Christians now are the arguments used against gays then).

And I’ve also published a new piece at The Bulwark on the legal arguments about whether the 1964 Civil Rights Act’s reference to “sex” should be construed to include sexual orientation and gender identity, a move I call “surprise plain meaning” and which is by no means unprecedented in the Supreme Court’s handling of employment discrimination law. More broadly, I examine and reject the notion that for the Court to ponder these questions is to put anyone’s “humanity up for debate.” Earlier on Bostock, Altitude Express, and Harris Funeral Home here, here, here, and here, and more from Dale Carpenter and Scott Shackford. Scott Greenfield responds.

For those keeping track, this makes three pieces I’ve published in two days, counting yesterday’s Wall Street Journal piece, all related to sexual orientation and the law although unrelated otherwise.

Prosecution roundup

  • Let justice be done: conviction integrity units “operate within prosecutors’ offices to investigate old cases for errors or misconduct that may have led to a wrongful conviction.” [C.J. Ciaramella]
  • “Allegation: Georgetown, Ind. man comes home to find his wife and two children killed. He’s detained for 13 years before he’s finally acquitted in a third trial. And this happens because the state lied about an ‘utterly unqualified’ assistant pretending to be a blood-spatter analyst. (The extent of his scientific training was a single chemistry class, which he flunked.) And there’s so, so much more. The state also lied about running a DNA test that could have exonerated the man. The second prosecutor was sanctioned for trying to cash in on a book deal. The first prosecutor ended up representing the real murderer. Click on the link, dear reader, for a shocking civil rights case that the Seventh Circuit is absolutely sending to trial.” [Institute for Justice “Short Circuit” on Camm v. Faith]
  • In the new 2018-19 term Cato Supreme Court Review, Anthony J. Colangelo writes about Gamble v. U.S., the dual-sovereignty double jeopardy case;
  • “Baby’s Death in Mother’s Bed Leads To 5-Year Prison Term. But Was It Her Fault?” [Cassi Feldman, The Appeal]
  • Seattle: “King County Took Money From an Anti-Prostitution Organization. Then ‘Unprecedented’ Felony Prosecutions of Sex Buyers Began.” [Sydney Brownstone, The Stranger last year; more (judge rejects disqualification motion)]
  • So it does happen: court denies prosecutor absolute immunity for withholding exculpatory evidence [Penate v. Kaczmarek, First Circuit]

George Eliot on clients’ demand for lawyers’ ethics

From Scenes of Clerical Life (1857), “Janet’s Repentance,” chapter 2 (paragraph breaks added):

Old lawyer Pittman had once been a very important person indeed, having in his earlier days managed the affairs of several gentlemen in those parts, who had subsequently been obliged to sell everything and leave the country, in which crisis Mr. Pittman accommodatingly stepped in as a purchaser of their estates, taking on himself the risk and trouble of a more leisurely sale; which, however, happened to turn out very much to his advantage. Such opportunities occur quite unexpectedly in the way of business. But I think Mr. Pittman must have been unlucky in his later speculations, for now, in his old age, he had not the reputation of being very rich; and though he rode slowly to his office in Milby every morning on an old white hackney, he had to resign the chief profits, as well as the active business of the firm, to his younger partner, Dempster. No one in Milby considered old Pittman a virtuous man, and the elder townspeople were not at all backward in narrating the least advantageous portions of his biography in a very round unvarnished manner.

Yet I could never observe that they trusted him any the less, or liked him any the worse. Indeed, Pittman and Dempster were the popular lawyers of Milby and its neighborhood, and Mr. Benjamin Landor, whom no one had anything particular to say against, had a very meager business in comparison. Hardly a landholder, hardly a farmer, hardly a parish within ten miles of Milby, whose affairs were not under the legal guardianship of Pittman and Dempster; and I think the clients were proud of their lawyers’ unscrupulousness, as the patrons of the fancy’s are proud of their champion’s ‘condition’.

It was not, to be sure, the thing for ordinary life, but it was the thing to be bet on in a lawyer. Dempster’s talent in ‘bringing through’ a client was a very common topic of conversation with the farmers, over an incidental glass of grog at the Red Lion. ‘He’s a long-headed feller, Dempster; why, it shows yer what a headpiece Dempster has, as he can drink a bottle o’ brandy at a sittin’, an’ yit see further through a stone wall when he’s done, than other folks ‘ll see through a glass winder.’ Even Mr. Jerome, chief member of the congregation at Salem Chapel, an elderly man of very strict life, was one of Dempster’s clients, and had quite an exceptional indulgence for his attorney’s foibles, perhaps attributing them to the inevitable incompatibility of law and gospel.

The standard of morality at Milby, you perceive, was not inconveniently high in those good old times, and an ingenuous vice or two was what every man expected of his neighbor.

Courts to officials: do not insult religions

A federal judge in Michigan has ruled for a Catholic foster-care program, but religious objectors may find it a victory built on sand. I’m in the online Wall Street Journal today with an opinion piece explaining why (paywalled for many readers). Related on Judge Robert Jonker’s opinion in Buck v. Gordon, in which he rebuked Michigan Attorney General Dana Nessel [Sue Ellen Browder, National Catholic Register] and on Fulton v. Philadelphia [Mark Rienzi](and mentions: New York Post, Kathryn Lopez/National Review)

Environment roundup

Town won’t let owner build on her lot, says it owes $0.00 for taking

Janice Smyth’s family had paid property taxes for 40 years on a residential-zoned land parcel on Cape Cod, which has been left as the last plot in its neighborhood not residentially developed. But the town of Falmouth has adopted land-use regulations that have left only a 115-square-foot patch of it developable. Massachusetts courts: even if the plot’s valuation fell from $700,000 to $60,000, a decline of more than 90 percent, it’s not a taking since you could still use the land as a park or to walk dogs or for neighbors to buy as a buffer. The dispute might make a suitable vehicle for the Supreme Court to revisit the question of whether an outright confiscation of all uses is required before the Constitution’s requirement of just compensation kicks in [Trevor Burrus on Cato certiorari amicus brief in case of Smyth v. Conservation Commission of Falmouth et al.]

Discrimination law roundup

  • Supreme Court reconvenes for new term and tomorrow will hear cases over whether Title VII ban on sex discrimination extends to sexual orientation and gender identity [SCOTUSBlog symposium with contributors including Richard Epstein, William Eskridge; Will Baude, Volokh Conspiracy; George Will; earlier here, here, here, etc.]
  • New York City Commission on Human Rights declares it a violation of anti-discrimination law to use the term “illegal alien” in workplace, rental, or public accommodation contexts “with the intent to demean, humiliate, or offend a person or persons.” Does it complicate matters that both federal law and the U.S. Supreme Court use “illegal alien” as a neutral descriptive? [Hans Bader]
  • Minneapolis passes law restricting landlords’ taking into account of tenants’ past criminal histories, evictions, credit scores [Christian Britschgi, Reason]
  • Obama-era Equal Employment Opportunity Commission (EEOC) mandated burdensome pay data reporting by employers. Will courts allow a course correction? [Federalist Society teleforum with G. Roger King and James A. Paretti Jr., earlier here and here]
  • Professor who directs social justice center at Washington, D.C.’s American University proposes new federal Department of Anti-Racism that would wield ample power to order everyone around along with preclearance authority over all “local, state and federal public policies”; also “no political appointees” [Politico via Amy Alkon; Kelefa Sanneh, The New Yorker with more on work of Prof. Ibram X. Kendi]
  • Late in its tenure, Obama administration began warning Fannie Mae that discouraging some of the riskiest mortgages (>43% debt-to-income) “could be seen as a violation of the Fair Housing Act.” Fannie and Freddie “quickly complied” and brought the punch bowl back out [Damian Paletta, Washington Post/MSN]

Scholarship gone right, and wrong

Old, new property law casebooks make for a contrast of doctrine versus indoctrination [Charles Rounds Jr., Martin Center] Former Yale dean Anthony Kronman’s latest book, The Assault on American Excellence, is a pointed critique of trends at elite universities [Caron/TaxProf; I reviewed one of Kronman’s earlier books back when] Shortcomings of present law school model leave dire need for alternatives [Mark Pulliam, Southeast Texas Record] “On the Ethics of Legal Scholarship” [Marquette Law Review symposium with Carissa Byrne Hessick, Paul Horwitz, and others]