Posts Tagged ‘religious liberty’

Cato Supreme Court Review 2018-19

The full Cato Supreme Court Review for the 2018-19 term can be read here, with an introduction by Trevor Burrus. Among this year’s highlights: Michael McConnell on the Maryland Peace Cross case and government-sponsored religious symbols, Bruce Kobayashi and Joshua Wright on the Apple indirect-purchaser antitrust case, Braden Boucek on the Tennessee liquor Commerce Clause case, and Simon Lecturer George Will on “The Insufficiently Dangerous Branch.”

Or listen to a Cato audio with Trevor Burrus, Ilya Shapiro, and Caleb Brown:

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. 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)

Schools and childhood roundup

“If it’s speech, you can’t force it.”

The Arizona Supreme Court made the right call, in my view, in ruling that it is forced expression for the city of Phoenix to require a wedding-calligraphy studio to inscribe invitations for weddings that go against its owner-artists’ religious scruples: “If it’s speech, you can’t force it.” The ruling is based on both the state constitution and on Arizona’s version of RFRA (religious freedom restoration act). [Lindsay Walker, Cronkite News/Arizona PBS; Eugene Volokh and Dale Carpenter (filed with Cato in the case on behalf of the studio); earlier here, etc., and related]

The latter part of the ruling does seem to result in a broader than usual reading of a state RFRA, because most state courts have declined to interpret the laws to provide very much protection for religious objectors in public-accommodation cases; their logic has been that reducing discrimination is a compelling state interest that cannot be enforced in a less restrictive way.

August 20 roundup

  • UK: “British newspapers can legitimately mock parrots and compare them to psychopaths, the press regulator has ruled, after an unsuccessful complaint that the Daily Star misrepresented the emotions of a pet bird.” [Jim Waterson, Guardian]
  • Cato scholars regularly crisscross the country talking to students. Book one (maybe me) at your campus this Fall [Cato Policy Report]
  • Local-government preemption, single-use plastics, lemonade stands, Sen. Cardin on redistricting: my new post at Free State Notes recounts my experience attending the Maryland Association of Counties summer conference;
  • Can a police officer be criminally prosecuted for refusing to risk his life to stop a school shooter? [Eugene Volokh on Marjory Stoneman Douglas High School case]
  • I’m quoted on press freakout over new proposed religious liberty regs: “This is a narrowly drawn rule for a minority of federal contractors. It’s really not that radical and not that new.” [Brad Palumbo, Washington Examiner]
  • Beware proposals that would transform antitrust law into general bludgeon for avenging all sorts of grievance against big business [Glenn Lammi, WLF]

Making eagle feathers legally safe for Native American worshipers

Eagle feathers have long been important in Native American religious practice, but federal law generally bans possession of eagle feathers under stringent penalties. While the law authorizes the Interior Department to exempt Native American religious use, the Department has sometimes been stinting and ungenerous in its granting of permission. Although the Fifth Circuit ruled in favor of Indian worshipers in a big 2014 case under the Religious Freedom Restoration Act of 1993, uncertainty continues to linger. Now advocates have petitioned for a rulemaking that would expand the exemption from federally recognized tribes only to all sincere believers including members of state-recognized tribes, and would set the exemption on a firmer legal footing for the future by taking it through the notice and comment process. [Joseph Davis, Federalist Society, earlier; End the Feather Ban advocacy page]

Religious establishment and improper delegation at the Supreme Court

Yesterday’s biggest news from the Supreme Court was not its 7-2 upholding of the Bladensburg, Md. Peace Cross (American Legion et al. v. American Humanist Association et al.; earlier). That outcome could readily have been foreseen given the result in earlier cases: Justices Stephen Breyer and Elena Kagan, to say nothing of the five conservatives, are prepared to uphold “longstanding monuments, symbols, and practices” that may include religious content but do not impose any significant harms on those of other faiths or none. This World War I memorial qualifies.

Instead, the big news is the outcome in Gundy v. U.S. (earlier), a case over whether Congress can delegate to the Department of Justice the power to decide how severe the penalties will be in one application of the sex offender registration law. While the critique of excessive delegation did not carry the day this time (the vote was 4-3-1 with Justice Brett Kavanaugh not participating), Justice Samuel Alito indicated that he would be inclined to look at the issue in a future case, and Kavanaugh is thought (from his D.C. Circuit jurisprudence) to be similarly minded. If so, then a future case could establish the important principle that Congress must spell out penalties and prohibitions in law itself, rather than punt such issues to executive agencies, at least in criminal matters and perhaps also in some regulatory ones. That’s huge, since the Court has rejected improper-delegation theories since the New Deal.
Gorsuch dissent in Gundy v. U.S.
Justice Neil Gorsuch’s dissent in Gundy, together with his scalding dissent (earlier) in the double jeopardy/dual sovereignty case Gamble v. U.S. on Monday, makes him the libertarian hero of the week.
Gorsuch dissent in Gamble v. U.S.

Supreme Court roundup

  • Will the liberal wing’s success at piecing together 5-4 majorities survive Justice Kennedy’s departure? [Kimberly Strawbridge Robinson, Bloomberg] Fundamental restructuring of Supreme Court becomes a popular campaign issue with Democrats, and the dangers in that [Ilya Shapiro, Washington Examiner] More: Gorsuch, Kavanaugh differ often, we can see clearly now [Jonathan Adler and update]
  • Federalist Society video on stare decisis with Roger Pilon, and related by Pilon on constitutional stare decisis;
  • The high court decides relatively few admiralty/maritime cases but has heard more than one of them this term; one artist’s whimsical illustration [@CourtArtist on Twitter]
  • In writing opinions, “the justices should be careful about naming politicians, especially when they name in order to make a point about the political process.” [Josh Blackman, The Atlantic]
  • A constitutional right to religious exemptions from otherwise applicable laws? Eugene Volokh still backs Scalia’s logic on that, but it’s looking as if Court’s conservative wing may not. Cleanup in the Lemon aisle: Michael McConnell on Maryland Peace Cross case [Volokh Conspiracy]
  • New resource: database of all Supreme Court nomination hearing transcripts that are yet available (with Kavanaugh’s still to come) [Shoshana Weissmann and Anthony Marcum, R Street]

Constitutional law roundup