- You don’t need to be a religious believer to think the Supreme Court should uphold the continued display of the Bladensburg war memorial cross [George Will/syndicated, Eugene “Jesse” Nash IV and Victoria Gomes-Boronat, Capital News Service] Cato filed a brief in the case [Ilya Shapiro, Trevor Burrus, Patrick Moran, and Michael Finch on The American Legion v. American Humanist Association]
- “The Second Amendment In The New Supreme Court” [Federalist Society conference with Renee Lerner, Stephen Halbrook, Mark W. Smith, and others; Halbrook on the Court’s decision to hear New York State Rifle and Pistol Association Inc. v. City of New York, earlier on which] Map of state changes liberalizing concealed carry law since 1986 [Eugene Volokh]
- In the spirit of balance, here’s a more cheerful and positive view of an Article V convention than the one I take [Paul Starobin, American Affairs Journal]
- “Bruno Leoni and the Search for Certainty in Law” [Alberto Mingardi, Law and Liberty]
- Oregon carbon emission credit system falls more heavily on out-of-state than on in-state suppliers, and the Dormant Commerce Clause has something to say about that [Ilya Shapiro on Cato cert amicus brief in American Fuel & Petroleum Manufacturers v. O’Keeffe]
- Would a wealth tax be constitutional? [Richard Epstein, Hoover]
- In move to protect itself against patent trolls, Apple plans to close retail stores in the troll-favored Eastern District of Texas [Joe Rossignol, MacRumors; Sarah Perez, TechCrunch]
- Don’t: “Civil Rights Lawyer Faked Cancer to Delay Cases, Illinois Bar Authorities Say” [Scott Flaherty, American Lawyer]
- Don’t: “* lies about joint stipulation for extension * FABRICATES OPPOSITION BRIEF * constructs false chain of emails, forwards to partner. Dude, just doing the work would have been WAY less effort.” [Keith Lee thread on Twitter, with punch line being what the New York courts did by way of discipline; Jason Grant, New York Law Journal]
- I’m quoted disagreeing (cordially) with Sen. Mike Lee on whether criticism of judicial nominees at hearings based on their religious views oversteps Constitution’s Religious Test Clause [Mark Tapscott, Epoch Times; my 2017 post at Secular Right]
- Colorado may become 13th state to enact National Popular Vote interstate compact, an attempted workaround of the Electoral College. This critique of the idea is from 2008 [John Samples, Cato; Emily Tillett, CBS]
- New York law imposes strict liability on simple possession of a gravity knife, leaves enforcement to official whim, and lacks a mens rea (guilty mind) requirement. The Constitution demands better [Ilya Shapiro on Cato Institute cert amicus brief in Copeland v. Vance, earlier and more on such laws]
- Extended look at problems of the adult guardianship program in New York [John Leland, New York Times, earlier]
- “‘Professional Speech’: a Distinction without a Difference” after the NIFLA case [Cato podcast with Caleb Brown and Robert McNamara of Institute for Justice]
- New York enacts law imposing stiff new tax on opioid makers and wholesalers while forbidding them to recoup it by raising prices for buyers in other states. That won’t fly under the Dormant Commerce Clause, rules federal judge [Nate Raymond, Reuters/Insurance Journal]
- Should courts uphold laws grounded in part on hostility to a religious group, though rationalized on some other basis? Both right and left have trouble staying consistent [Ilya Somin]
- “Oxford University Gets Opposition To Its Attempt To Trademark ‘Oxford’ For All The Things” [Timothy Geigner, TechDirt]
- Australian corrections officials keep bringing the wrong Peter Brown to court as murder defendant [Lowering the Bar]
I’ve posted before about our July Cato conference on adoption, pluralism, and children’s interests. Now Cato’s bimonthly Policy Report has published highlights of the panel on anti-discrimination law and religious agencies, with speakers including Stephanie Barclay of BYU, Sarah Warbelow of the Human Rights Campaign, Robin Fretwell Wilson of the University of Illinois, and me.
One of my comments about pluralism and freedom in the system: “When I began reading about adoption, I realized for about the umpteenth time how glad I was to live in America.” Not that the system isn’t full of problems: on the grueling 26-year litigation in the New York City foster care case, Wilder v. Bernstein, see this 2011 piece of mine.
- State by state survey of 140 bills around the country on hot topics related to religious accommodation, including adoption, service refusals, campus speech, health care, etc. [Kelsey Dallas, Deseret News] And don’t forget to mark your calendar for two weeks from today when Cato will host our half-day conference on adoption, foster care, and pluralism with an array of fine speakers;
- What ails long-haul trucking in a time of prosperity? Federal break regulations, electronic monitoring, artificial constraints on parking among factors [Virginia Postrel, Bloomberg]
- Antitrust debates cut across political spectrum [Daniel A. Crane, Cato Regulation magazine] “Solicitor General Inveighs Against Antitrust-Law Revolution in SCOTUS ‘Apple v. Pepper’ Amicus Brief” [Corbin Barthold, WLF]
- These seem like well-planned-out laws: Google suspends running campaign ads in Washington and Maryland following states’ enactment of new disclosure laws [Michael Dresser, Baltimore Sun, Jim Brunner and Christine Clarridge, Seattle Times, Scott Shackford]
- “Missouri appeals court tosses $55 million Johnson & Johnson talc-powder verdict” [Reuters, earlier (courts reverse two other big verdicts) and generally]
- “What Secretary Carson Should Know about Affirmatively Furthering Fair Housing (AFFH)” [Vanessa Brown Calder, earlier]
- Judge orders Kansas Secretary of State Kris Kobach to take CLE lessons as sanction for disclosure and discovery missteps [Lowering the Bar, Jonathan Adler]
- In 7-2 decisions, Supreme Court of Canada finds it “proportionate and reasonable” limitation on religious liberty for Ontario and British Columbia to refuse rights of legal practice to grads of conservative Christian law school which requires students to agree to refrain from sex outside heterosexual marriage [Kathleen Harris, CBC, Caron/TaxProf, Trinity Western University v. Law Society of Upper Canada, Jonathan Kay/Quillette, earlier on Trinity Western]
- “Gratiot County, Mich. officials foreclose on 35-acre parcel worth $100k over unpaid $2k tax debt. They sell the property for $42k and keep $2k to cover the tax bill—and keep the other $40k as well. District court: ‘In some legal precincts that sort of behavior is called theft.’ Motion to dismiss denied.” [John Kenneth Ross, “Short Circuit” on Freed v. Thomas, United States District Court, E.D. Michigan]
- UK: “Obese people should be allowed to turn up for work an hour later, government adviser recommends” [Martin Bagot, Mirror]
- “Law Schools Need a New Governance Model” [Mark Pulliam, and thanks for mention]
- “Until 1950, U.S. Weathermen Were Forbidden From Talking About Tornados” [Cara Giaimo, Atlas Obscura]
I’ve got a piece up at the Weekly Standard on yesterday’s Masterpiece Cakeshop decision, on which a Supreme Court uniting 7-2 on result — but split five ways as to particulars — found the Colorado Civil Rights Commission to have operated unfairly, thus managing to dodge a substantive decision about the limits of forced expression. “Next time you run this process, skip the religious animus” is not the same as proclaiming a First Amendment right for the baker to turn down the wedding, though it may convey a significant message for the future in its own right.
More commentary: Ilya Shapiro (“the real action is foreshadowed by the concurring opinions”), Eugene Volokh (“will have little effect on other such same-sex wedding service provider cases, especially when government commissioners realize they shouldn’t say more about religion than is necessary”), John Corvino (opinion could put a brake on “rushing to dismiss our opponents as ‘despicable'”), David French (Kennedy’s emphasis on comparing the case with cake inquiries that offend other bakers bodes well for religious service providers), and Richard Epstein (“the worst kind of judicial minimalism”; what does the not-yet-legality of gay marriage at the time have to do with anything? and can Colorado reopen the case?), and earlier here. And you can listen to my guest appearance yesterday on the popular Clarence Mitchell IV (C4) show on Baltimore’s WBAL.
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.
- Chicago mayor not the only one pushing this awful idea: New Mexico lawmakers propose requiring high school grads to apply to college or file alternate life plan [Dan Boyd, Albuquerque Journal]
- “New York’s Bid to Control Religious Schools” [Avi Schick, WSJ/Yeshiva World]
- “Couple’s three girls were taken away after Walmart reported innocent bath time photos” [Derek Hawkins, WaPo/The State, Jacob Sullum, Reason]
- Also soliciting public comment: “Education Department delays Obama rule encouraging racial quotas in special ed” [Jerome Woehrle, Liberty Unyielding; Erica L. Green, New York Times; Hans Bader/CEI last fall] “Civil Rights Commission Takes on Issue of Minorities in Special Education” [Christina Samuels, EdWeek] And: “Federal Special Education Law and State School Choice Programs” [Tim Keller and Nat Malkus, Federalist Society]
- New from Cato, edited by George H. Smith and Marilyn Moore: “Critics of State Education: A Reader.”
- “Everybody Hates DC’s Proposal Forcing Daycare Workers to Get College Degrees” [Eric Boehm, Reason, earlier here and here]
I’m a bit late getting to this major survey from my colleague Emily Ekins and associates. Some highlights good and bad:
* By 71% to 28%, Americans lean toward the view that political correctness silences discussions society ought to have, rather than the view that it is a constructive way to reduce the giving of offense;
* Liberals are much more likely than conservatives to say that they feel comfortable saying things they believe without fear that others will take offense.
* By a 4-to-1 margin Americans consider hate speech morally unacceptable, while by (only) a 3-to-2 margin they do not want the government to ban it.
* “47% of Republicans favor bans on building new mosques,” notwithstanding the First Amendment’s protection of free exercise of religion.
* “51% of Democrats support a law that requires Americans use transgender people’s preferred gender pronouns,” also notwithstanding the First Amendment.
* Upwards of 80% of liberals deem it “hateful or offensive” to state that illegal immigrants should be deported or that women should not serve in military combat, with 36% and 47% of conservatives agreeing respectively. “39% of conservatives believe it’s hate speech to say the police are racist, only 17% of liberals agree.”
And much more: on college speaker invitations, microaggressions, whether executives should be fired over controversial views, media bias, forced cake-baking, and the ease of being friends across partisan lines, among many other topics.