churches – Overlawyered

Religious liberty and public health orders

Walter Olson — Sat, 25 Apr 2020 15:59:40 +0000

“History buffs may recall that the first Free Exercise Clause case in Supreme Court history, in 1845, involved the prohibition of open-coffin funeral services in a New Orleans church during a yellow fever outbreak.” Any piece from Prof. Mike McConnell on religious liberty is likely to be worth reading and this is no exception (with Max Raskin) [New York Times, though I’m not fond of the clickbait-y headline]

Several courts have already heard challenges to governors’ and mayors’ closing and assembly orders; churches have won rulings in Louisville, Kentucky (strongly worded federal court opinion; case then settled; mayor says police will take down license plates of Easter churchgoers) and Kansas (analysis by Stuart Levine), while states have won rulings in New Hampshire (no evidence that ban on gatherings of 50 or more people “intended to target any religion or specific religious practice”) and New Mexico. More: Bonnie Kristian, Christianity Today; and here is a website on religion, law, and the COVID-19 emergency.

Tags: churches, COVID-19 virus, religious liberty

Religious liberty and public health orders is a post from Overlawyered - Chronicling the high cost of our legal system

Intellectual property law roundup

Walter Olson — Wed, 25 Mar 2020 10:01:54 +0000

The ethics (and law) of emergencies: heroic efforts to shore up medical equipment on the run, such as using 3-D printing to supply a missing ventilator valve in an Italian hospital, can run into knotty problems of IP rights [Jay Peters, The Verge]
“Plaintiff recognizes that the community is in the midst of a ‘coronavirus pandemic.’ But Plaintiff argues that it will suffer an ‘irreparable injury’ if this Court does not hold a hearing this week and immediately put a stop to the infringing unicorns and the knock-off elves…. The world is facing a real emergency. Plaintiff is not.” [Lowering the Bar on federal Northern District of Illinois case]
As churches scramble to shift their worship services online, a gnawing question: are you sure you have the right to stream that song of praise? [The Gospel Coalition] Beating hasty retreat, Disney apologizes for having sought $250 licensing fine against arents at California school who’d screened “Lion King” video to entertain kids during PTA event [Nat Orenstein, Berkeleyside; Isabel McCormick, ScreenRant]
“It’s still early in 2020. But this is my vote for most annoying copyright complaint so far: a map (thin copyright!) shown (apparently only in passing; I haven’t watched yet) in the background of a movie that not only flopped but did so 8 years ago” [Zahr Said on coverage by Kyle Jahner, Bloomberg Law]
Jury awards $1 billion to music labels against cable and internet giant Cox, after claims it didn’t do enough to combat infringement by its users [Chris Eggertsen, Billboard]
“Newspaper Can Talk About ‘Derby Pies’ Without Infringing Trademarks–Rupp v. Courier Journal” [Eric Goldman; my Cato podcast on that subject with Caleb Brown back in 2016]
“Musicians Algorithmically Generate Every Possible Melody, Release Them to Public Domain” [Samantha Cole, Vice “Motherboard”]

Tags: churches, copyright, Kentucky, movies film and videos, music and musicians, trademarks

Intellectual property law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court roundup

Walter Olson — Mon, 06 Jan 2020 11:01:02 +0000

Hosanna-Tabor sequel: Court agrees to review Ninth Circuit decisions taking narrow view of “ministerial exception,” which restricts court review of some decisions by religious employers [SCOTUSBlog, Eric Rassbach; Joseph Cosby on Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel]
Once again the Court is being asked to green-light open-ended claims of disparate impact liability in mortgage lending. Proximate cause principles offer a way to hold the line [Ilya Shapiro, Trevor Burrus, and Sam Spiegelman on Cato amicus in Bank of America v. Miami]
Article I, Section 3 of the Constitution provides that the Chief Justice shall preside over an impeachment trial of the President in the Senate. Should it wish, however, the Senate will have wide latitude to overrule Roberts’s rulings [John Kruzel, The Hill]
Regulatory agencies whose officials are unremovable amount to an unaccountable fourth (or fifth?) branch of government [Ilya Shapiro and James Knight on Cato amicus brief in Seila Law v. CFPB]
Comcast Corp. v. National Association of African American-Owned Media, argued before the Court Nov. 13, originally appeared to hinge on the Ninth Circuit’s adopting a looser standard for allegations of race discrimination in contracting than did other circuits; as it has evolved, however, it may be decided on questions of pleading [Washington Legal Foundation and more from WLF’s Richard Samp, ABA Journal; Dominic Patten and Mike Fleming Jr., Deadline on underlying dispute; Howard Wasserman and followup]
Nearly two years after joining the Court, Justice Neil Gorsuch now has a track record [Jacob Sullum, Michael Greve] Gorsuch may be joining Thomas in the position that a federal agency’s considered decision *not* to regulate should not be interpreted to pre-empt state regulatory power [James Beck on concurrence in Lipschultz v. Charter Advanced Services (MN), LLC]

Tags: CFPB, churches, constitutional law, Neil Gorsuch, Supreme Court

Supreme Court roundup is a post from Overlawyered - Chronicling the high cost of our legal system

March 27 roundup

Walter Olson — Wed, 27 Mar 2019 10:05:24 +0000

U.S. Department of Justice files brief in Kisor v. Wilkie somewhat critical of Auer deference, i.e. of deference to the federal government’s own positions. That’s pretty special, and commendable [William Yeatman, Cato; Jonathan Adler, earlier here and here]
Parsonage exemption (i.e., favored treatment of allowance for religious housing) does not violate Establishment Clause, rules Seventh Circuit panel [Gaylor v. Mnuchin; background, Kelsey Dallas, Deseret News; earlier]
Showing middle finger to police officer counts as constitutionally protected speech, and Sixth Circuit says every reasonable officer should know that already [Eugene Volokh]
Home-share hospitality is here to stay, unless regulators get it very wrong [Federalist Society video with Gwendolyn Smith, Matthew Feeney, and Pete Clarke]
“Tens of thousands of people in Missouri cannot drive as a result of their licenses being suspended over child support they are unable to pay.” A newly filed lawsuit challenges that practice [Hans Bader]
Only Congress can make new law, and administration can’t reach desired ban on “bump stock” firearms accessories just by reinterpreting existing federal law [Ilya Shapiro and Matthew Larosiere on Cato amicus brief in D.C. Circuit case of Guedes v. BATFE]

Tags: administrative law, child support, churches, First Amendment, guns, hotels, Missouri, police

March 27 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“The pros and cons of ‘mandated reporting.'”

Walter Olson — Wed, 26 Sep 2018 04:05:00 +0000

Advocates are pushing for laws much expanding the ranks of private actors required by law to inform to authorities on suspicions about child abuse (“mandatory reporters”). Naomi S. Riley quotes some of my misgivings: “As Walter Olson of the Cato Institute notes, increasing the number of mandated reporters could ‘incentivize’ people ‘to resolve uncertain, gray areas in favor of reporting.’ It will multiply “investigations based on hunches or ambiguous evidence which can harm the innocent, traumatize families, result in CPS [child protective services] raids, and stimulate false allegations,’ he says.” [Weekly Standard]

Tags: Catholic Church, Child Protective Services, churches, schools

“The pros and cons of ‘mandated reporting.'” is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court roundup

Walter Olson — Mon, 07 May 2018 10:03:39 +0000

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]

Tags: administrative law, Antonin Scalia, churches, constitutional law, contracts, guns, Indian tribes, Supreme Court

Supreme Court roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“The buffet had 35 full-time employees–all of whom, incidentally, have lost their jobs as a result of this lawsuit.”

Walter Olson — Thu, 26 Apr 2018 04:15:30 +0000

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.

Tags: churches, religious liberty, wage and hour suits

“The buffet had 35 full-time employees–all of whom, incidentally, have lost their jobs as a result of this lawsuit.” is a post from Overlawyered - Chronicling the high cost of our legal system

April 4 roundup

Walter Olson — Wed, 04 Apr 2018 09:57:21 +0000

“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.]

Tags: churches, don't, international human rights, law schools, qui tam, red light cameras, taxes, United Nations

April 4 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Lawsuit challenges Methodist resort’s “church attenders only” bylaws

Walter Olson — Mon, 26 Mar 2018 04:05:05 +0000

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.” [

Tags: churches, housing discrimination, religious discrimination

Lawsuit challenges Methodist resort’s “church attenders only” bylaws is a post from Overlawyered - Chronicling the high cost of our legal system

Watch: videos from Cato conference, The Future of the First Amendment

Walter Olson — Thu, 12 Oct 2017 04:15:20 +0000

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.

Tags: campaign regulation, Cato Institute, churches, libel slander and defamation, live in person, privacy, religious liberty

Watch: videos from Cato conference, The Future of the First Amendment is a post from Overlawyered - Chronicling the high cost of our legal system