Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘religious liberty’

First Amendment Defense Act, draft two

Both sides in the culture war are gearing up for a fight in Congress on the proposed First Amendment Defense Act (FADA), which would establish various rights for persons and institutions who object to same-sex marriage. The bill’s text, however, has proved a moving target (earlier here and here). Scott Shackford at Reason gets farther into the details than the mainstream media has done.

Relatedly, Rod Dreher writes at the American Conservative that as a social conservative who resisted gay marriage, but now considers that cause lost, he believes fellow thinkers concerned with religious liberty should look to ally with libertarians. He recommends Shackford’s recent piece in Reason (which quotes me on adoption issues) noting the organized gay movement’s ever wider split from libertarians on issues of central government power, individual liberty and free association.

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October 21 roundup

  • “Rightscorp’s Copyright Trolling Phone Script Tells Innocent People They Need To Give Their Computers To Police” [Mike Masnick, TechDirt]
  • “‘Affordable housing’ policies have made housing less affordable” [Matt Welch, L.A. Times]
  • South Mountain Creamery case: “Lawmakers Call for Return of Cash Seized From Dairy Farmers” [Tony Corvo/Heartland, quotes me, earlier on this structuring forfeiture case]
  • Be prepared to explain your social media trail, like by like: “Supreme Court confirmation hearings in 2035” [Orin Kerr]
  • From Eugene Volokh, what looks very much like a case against assisted suicide, embedded in a query about whether state Religious Freedom Restoration Acts (RFRAs) might cut a legal path to it [Volokh Conspiracy]
  • “The complaint also indicated that the injuries could affect Reid’s ability to secure employment” after Senate exit [Roll Call on Majority Leader’s suit against exercise equipment firm over eye injury]
  • Amazon responds to NYT’s “everyone cries at their desk” hatchet job on its workplace culture [Jay Carney, Medium]

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Supreme Court roundup

The Court begins its new term each year on the first Monday in October:

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September 23 roundup

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Workplace religious accommodation, cont’d

A Muslim flight attendant has filed an EEOC complaint against ExpressJet; among her allegations are that the company has not adequately accommodated her desire not to serve alcohol to patrons, even though she says an arrangement under which she handed off that task to colleagues had previously proved workable [CBS Detroit] Eugene Volokh has a lengthy explainer on workplace religious accommodation, and argues that Kim Davis would have had a more colorable legal case had her lawyers filed under Kentucky’s state Religious Freedom Restoration Act (RFRA). And at Cato’s Constitution Day on September 17 I’ll be discussing my forthcoming piece on EEOC v. Abercrombie & Fitch, the hijab-accommodation case.

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July 22 roundup

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Just not in frosting

“Printing business has First Amendment and RFRA right to refuse to print gay pride festival T-shirts” [Eugene Volokh] The Lexington Human Rights Commission had ordered employee training for a t-shirt printer that had objected to printing messages it disagreed with, but a Kentucky trial court judge threw out the order citing both the First Amendment to the U.S. Constitution and Kentucky’s version of the Religious Freedom Restoration Act, here applicable to a corporation as defendant since it was an incorporated business that had been the target of the discrimination complaint. Compare the bake-my-cake cases, which have generally come out the other way. And see in the U.K., “Patrick Stewart backs bakery after ‘gay cake’ court battle”: Independent, Telegraph, Katherine Mangu-Ward/Reason.

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Controversial speech, the Texas attack, and the murderer’s veto

The unsuccessful attack on an exhibition of Mohammed cartoons in Garland, Texas, near Dallas, is the most recent attempted mass murder on American soil endeavoring to silence expression bothersome to radical Islamists; it is unlikely to be the last. Some thoughts assembled from Twitter:

One early, ill-considered reaction from the legacy media:

But the legacy media coverage didn’t necessarily improve after a day for reporting and reflection:

As commentators have pointed out, the narrow “fighting words” exception in today’s First Amendment law is generally reserved for (at most) face-to-face insults likely to provoke an on-the-spot brawl, not to derogatory speech more generally:

Echoes of the PEN awards controversy going on at the same time:

On which memorably, also, Nick Cohen in the Spectator.

Earlier on the Charlie Hebdo and Copenhagen attacks.

More: Ken White skewers that awful McClatchy piece with its misunderstandings about “fighting words.” And don’t miss Michael Moynihan on those who would “make a bold stand against the nonexistent racism of 12 dead journalists by refusing to clap for the one who got away,” or related and very good Caleb Crain.

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A new screen for religious-school tax exemption?

In 1983 the U.S. Supreme Court ruled that Bob Jones University in South Carolina could be denied an otherwise applicable tax exemption because of its then policy of forbidding interracial dating among its students; since then, despite much speculation, there has not been widespread yanking of exemptions from other institutions over widely disfavored or execrated but otherwise not unlawful internal policies. Now an exchange between Justice Samuel Alito and Solicitor General Donald Verrilli, at Tuesday’s oral argument in the gay marriage cases, is raising some eyebrows. Verrilli’s comments, if seen as reflecting considered Obama administration policy, might be seen as leaving the door open to wider denial of exemptions. [Sarah Pulliam Bailey, Washington Post; Michael Greve, Library of Law and Liberty]

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Business, gay rights, and the law: what comes next

Following the furor over RFRA (Religious Freedom Restoration Act) legislation in Indiana and Arkansas this week, I’ve got a new piece in today’s New York Daily News on the emergence of American business as the most influential ally of gay rights. Links to follow up some of the quoted sources: Reuters on Walmart, Tony Perkins/FRC on pieces of silver, Dave Weigel on how public opinion in polls tends to side with the small business owners. I wrote last year on the Arizona mini-RFRA bill vetoed by Gov. Jan Brewer.

On the social media pile-on against a small-town Indiana pizzeria, see also the thought-provoking column by Conor Friedersdorf (more, Matt Welch). Also recommended on the general controversy: Roger Pilon, Mike Munger/Bleeding Heart Libertarians, and David Henderson on freedom of association, David Brooks on getting along, and Peter Steinfels on liberal pluralism and religious freedom.

Relatedly, Cato has now posted a podcast with my critical views (earlier) of the “Utah compromise” adding sexual orientation as a protected class while also giving employees new rights to sue employers over curbs on discussion of religion and morality in the workplace (h/t: interviewer Caleb Brown). For a view of that compromise more favorable than mine, see this Brookings panel.

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