- After oral argument, case challenging agencies’ use of in-house administrative law judges (Lucia v. SEC) remains hard to predict [Ilya Shapiro, Cato; earlier]
- In dissent from cert denial: “Justices Thomas and Gorsuch Argue for Rejecting Deference to Agency Interpretation of Agency Regulations” [Eugene Volokh, Ilya Shapiro and Matthew Larosiere on Garco Construction, Inc. v. Speer]
- High court still gun shy [Trevor Burrus and Matthew Larosiere on refusal to review Maryland felon gun possession ban] Ninth Circuit ruling on zoning exclusion of firearms business deserves cert review [Shapiro and Larosiere on Teixeira v. Alameda County] Court denies cert in widely watched Defense Distributed First Amendment case on dissemination of plans for 3-D printed weapon [Smith Pachter, earlier] A historical look: “The American Indian foundation of American gun culture” [David Kopel]
- “The Supreme Court’s grant of a Contracts Clause case for the first time in a quarter-century reminds me that a certain John G. Roberts wrote a student note on the Clause back in 1978 (available at 92 Harv. L. Rev. 86).” [Aditya Bamzai on Twitter]
- University of Chicago Law Review special issue on Justice Scalia [Will Baude; other recent Scalia scholarship includes articles on his influence in implied rights of action and standing]
- Case on cert petition before SCOTUS could clarify law on distribution of property after church schisms [Samuel Bray on Protestant Episcopal Church in the Diocese of South Carolina v. Episcopal Church]
A church outside Akron, Ohio, ran a cafeteria open to the public in which much of the labor was provided free by volunteer members of the congregation. The U.S. Department of Labor sued it on the grounds that it violates the minimum wage provisions of the Fair Labor Standards Act (FLSA) for an enterprise, church or otherwise, to use volunteer unpaid labor in a commercial setting. A trial court agreed, but now the Sixth Circuit has reversed and remanded, pointing out that “to be considered an employee within the meaning of the FLSA, a worker must first expect to receive compensation.”
Judge Raymond Kethledge, writing in concurrence, takes issue with the Department of Labor’s argument that the cafeteria volunteers count as employees because “their pastor spiritually ‘coerced’ them to work there. That argument’s premise — namely, that the Labor Act authorizes the Department to regulate the spiritual dialogue between pastor and congregation — assumes a power whose use would violate the Free Exercise Clause of the First Amendment.” Kethledge also points out that as “the record makes clear, the Buffet’s purpose was to allow the church’s members to proselytize among local residents who dined there,” and that along with its congregant volunteers the establishment “had 35 full-time paid employees — all of whom, incidentally, have lost their jobs as a result of this lawsuit.” [Acosta v. Cathedral Buffet et al. via Ted Frank on Twitter]
More: cross-posted, slightly expanded, at Cato.
- “Former employee of red light camera company that bribed Chicago official (who is now serving 10 years) turns informant, seeks sizable cut of the $20 mil the company paid to settle the city’s suit. Seventh Circuit: The chutzpah!” [John K. Ross, Short Circuit, on City of Chicago ex rel. Rosenberg v. Redflex Traffic Systems Inc.]
- “Why Religious Organizations Shouldn’t Lose Tax-Exempt Status Based on Public Policy, Post-Obergefell” [Sally Wagenmaker via Caron/TaxProf]
- The regulated American truck operator: “For the liberty minded professional driver, the situation looks bleak.” [“Gordilocks,” Glibertarians]
- Practice pointer: don’t make closing argument in a condition that could score .337 on a Breathalyzer afterward [Mike Frisch, Legal Profession Prof; Jefferson County, Ky.]
- Not a total shocker: study finds student editors at law reviews tend to accept articles matching their own ideologies [Prof. Bainbridge]
- Per a United Nations expert, 1) adopting fiscal austerity programs may put countries out of compliance with international human rights; 2) to remain in compliance, countries may be obliged to undertake crackdowns on financial privacy meant to extract more taxes. Oh, international human rights, how elastic thou art [Office of High Commissioner for Human Rights, U.N.]
Bay View, Michigan, is one of many Methodist-founded resorts from the Chautauqua tradition, among the better-known of which are the ones at Ocean Grove, N.J. and Chautauqua, N.Y. Now it is the target of an ACLU-backed lawsuit claiming that its bylaws, which permit only “practicing Christians” to own property, are unlawful. One of the claims in the lawsuit is that Michigan cannot properly under the First Amendment delegate certain public services, like those of a police force, to the association within its boundaries. But (I’m quoted as saying) as recently as 2002 a court ruled that it was not improper for a Christian college in Michigan to have police powers delegated to it for campus security, even though the college, like Bay View, was under bylaws requiring that it be controlled by religious believers. A second claim in the lawsuit, invoking the federal Fair Housing Act, may have a clearer path forward, because courts have been inclined to read narrowly rights of autonomy of religious institutions, especially entities like Bay View that are not as closely tied to church functions as those of, say, a monastic retreat might be. Tracy Schorn, DC_Bar]
My parting shot: “Certainly, Bay View is out of step with modern sentiment, and I can’t predict to what extent the courts will tolerate that. I will say this, however: If the courts turn Bay View into just another secular homeowner’s association, the result will be not more but less diversity overall in Michigan and in resort options.” [
Watch: videos now online from last month’s Cato conference, The Future of the First Amendment. I talk religious freedom on a panel with Robin Fretwell Wilson of the University of Illinois Law School and John M. Barry, author of Roger Williams and the Creation of the American Soul:
Eugene Volokh gives a keynote speech on the “revolution in remedies” that is changing libel and privacy law, which “ties in with technological change” in the nature of media, over a period in which there has been virtually no change in the substantive doctrine of libel:
Other panels include a discussion of the remarkable findings of a new Cato poll on free speech and presentations on a diverse array of other topics including European regulation of online media, commercial speech, and campaign finance.
The Freedom from Religion Foundation claims that it’s unconstitutional for Florida Sen. Marco Rubio to tweet Bible verses, as he often does [complaint letter] The question of when officials’ social media feeds should be deemed governmental in nature as distinct from personal sidelines, and what exactly that should mean in practice, has been much in the news, especially since a federal court ruled that a county supervisor in Virginia acted improperly by banning some constituents from her Facebook page. Critics have similarly sued on the theory that President Trump’s @realdonaldtrump Twitter account is a government forum that may not block viewers based on the viewpoint of their likely responses. Eugene Volokh sorts out some of the issues and notes that the Supreme Court, including some of the most liberal members, have taken the view that elected officials are free to voice religious convictions in public speeches without fear of violating the Establishment Clause. Earlier here and here.
- “What is the essence of a two by four?” And how did class action lawyers manage to get into the act? [Coyote, earlier]
- Don’t: “Syracuse lawyer accused of making bomb threat to avoid court hearing” [John O’Brien, Syracuse Post-Standard]
- Texas: “Even if you’re not the biological father, you still owe child support that accrued before the DNA test” [Fernando Alfonso III, Houston Chronicle]
- Federalist Society podcast with Justin (Gus) Hurwitz, Michael Daugherty, and Devon Westhill on long cybersecurity battle between FTC and Daugherty’s company, LabMD [earlier]
- Judge rejects suit by student over grade in poetry class [Sari Lesk, Milwaukee Journal-Sentinel; U. of Wisconsin-Stevens Point]
- On Johnson Amendment (tax status of churches’ political speech) don’t expect a revolution [S.M. Chavey, Heartland, quoted]
Progressive clergy in Washington, D.C. sue Coca-Cola over community obesity [Caitlin Dewey/Washington Post, in a lengthy, uncritical piece that never addresses the issue of standing]
The Christian governor of Jakarta, Basuki “Ahok” Tjahaja Purnama, said he would appeal a two-year sentence for blasphemy over “his comment during an election campaign that people were being deceived if they believed the Quran forbids Muslims from voting for non-Muslims…The trial was a purely criminal one and the court disagreed that there were political aspects to the case, the lead judge said….Hardline Islamist groups, whose supporters were also gathered outside the courtroom, had called for the maximum penalty possible on the basis that Purnama’s comments had insulted the Quran.” [Independent, U.K.]
In 2015, following the lead of many other states, Virginia passed a “law that says women have a right to breast-feed anywhere they have a legal right to be.” The law provides “no exemption for religious institutions.” Now a mother and her attorney say Summit Church in Springfield, in the D.C. suburbs, had no right to ask her to use a private room to feed her baby during a service.
Personally, I’m fine with public breast-feeding no longer being categorized, as it once was, as an automatically shocking thing. But why is government dictation of how a church may arrange its rules for worship no longer categorized as an automatically shocking thing? [Michael Alison Chandler and Laura Vozzella, Washington Post] [adapted and cross-posted at Cato at Liberty; and welcome Mosaic Magazine readers]