Of reasons to worry about the Donald Trump administration, so far as I can see, anti-gay policies aren’t in the top 25. Or so I argue in an opinion piece in today’s New York Post. It was written before, but includes an updating reference to, the airing of a “60 Minutes” interview last night in which Trump said, of the Supreme Court’s marriage cases, “They’ve been settled, and I’m fine with that.”
A bill called the First Amendment Defense Act, or FADA, with many Republican sponsors, would establish a new protected class in discrimination law, enabling what might develop into a major new sector of litigation. It would bestow on advocates of putative traditional family values — but not their opposite thinkers — new legal rights to sue over adverse government treatment of any kind, including the withholding of subsidies, government contracts or indeed any other public action. The protected status would even extend to acts taken as public employees and clothed with official force. It’s an extraordinarily one-sided, wildly impractical set of proposals whose theme, I argue at Newsweek, is not pluralist accommodation but merely to empower one side, when wielding public authority or tax moneys, to engage in a wide range of punitive and coercive measures against their culture war opponents. And that has less than nothing to do with the First Amendment.
Whole piece here. Dale Carpenter at Volokh Conspiracy has some kind words for my piece along with thoughts about the possible constitutional infirmities of the draft bill’s blatant enlistment of government power on behalf of one viewpoint and set of beliefs as against others; he also links to this Christianity Today piece by three leading religious liberty scholars, Richard Garnett, John Inazu, and Michael McConnell, who acknowledge some of the problems with FADA in present form while urging support for a less sweeping measure (“We think the best approach is to tailor FADA to the core area of concern: religious nonprofits.”)
P.S.: Stephen Bainbridge reprints a letter in which I link and summarize some of my recent writing on religious accommodation.
“Are you showing contempt for this court?” “No, I’m doing my best to hide it.” Mae West might get away with that attitude but Kentucky clerk Kim Davis can’t, as I explain in my (revised and expanded from last night’s post here) post at Cato. First paragraph:
Across the political landscape this morning, people on one side are discovering that lawlessness is bad, while people on the other are discovering that the machinery of our justice system is harsh. If experience is any guide, these lessons will last a lunchtime.
Whole thing here.
Former Arkansas Governor and presidential candidate Mike Huckabee responds as follows to a federal judge’s contempt finding against Rowan County clerk Kim Davis:
Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country. We must defend #ReligiousLiberty!
— Gov. Mike Huckabee (@GovMikeHuckabee) September 3, 2015
Henceforth when I think of Gov. Mike Huckabee it will be as someone unfamiliar with the legal concept of contempt of court. Gabriel Malor has dissected Huckabee’s enthusiasm for a purported right to defy SCOTUS rulings.
Kim Davis purges the contempt if she either carries out her public duties or quits her public office. So she is not in jail for refusing to violate her religion, unless her religion requires her to keep her public job (cool religion!). And while the traditional contempt power of the Anglo-American courts does generate various disturbing results — jailing dads for breaking a court order to see their kids, for example — pressure to resign a public office rates, to me, fairly low on the scale.
Speaking for myself, if my lawyers encouraged me to commit contempt of court, I might begin to wonder whose side they were on. Kim Davis’s Liberty Counsel lawyers, of course, were at the center of the extraordinary Miller-Jenkins case, much covered at this site, in which a client not only defied a court order but kidnapped a child along the way. And from Michelle Meyer, professional obligations of lawyers counseling clients re: contempt. (N.B.: Staver says Liberty Counsel “would never counsel a client to violate the law.”)
Plus: As Chris Geidner notes at BuzzFeed, Kentucky does not provide for recall of county clerks or removal by the governor for official misconduct. And Carly Fiorina, grown-up in the room: “when you are a government employee, I think you take on a different role.”
P.S. In general, courts have a range of remedial options when faced with contempt, such as fines. Their discretion is bounded by various factors; for example, they are not supposed to resort to harsher remedies if milder ones would obtain compliance. Many of the comparisons being bandied about, by the way, involve officials who were defying some law but were not themselves personally under a court order not to do so.
A curious argument making the rounds posits it as somehow relevant that marriage law changed after Davis won elected office, supposedly upsetting her reliance on expectations of what duties she would be called on to perform. That’s not really a legal question, in the sense of casting any doubt on whether she is expected to follow the laws of Kentucky and the United States in current form if she wants to hold office. It’s more of a union shop steward’s argument — “you can’t change my job duties unless you bargain with me first.”
And: Thoughtful Dan McLoughlin what-goes-around-comes-around on lawlessness, Kim Davis, and the pervasiveness of double standards.
- New York Times suggests Justice Clarence Thomas’s opinions borrow too much language from briefs and lower courts. Orin Kerr on why that’s unfair;
- Prosecutors have too much leeway to request freeze on defendant’s assets pending trial [Ilya Shapiro, Cato]
- Certiorari petition arising from Newman/Chiasson prosecution: “Obama Administration Gambles On Supreme Court Review Of Insider-Trading Case” [Daniel Fisher]
- “Another Chance To Clean Up ‘Trial by Formula’ Class Actions” [Andrew Grossman/Cato, SCOTUSBlog on Tyson Foods v. Bouaphakeo]
- “Bench Memos” to the barricades: National Review builds case for “resistance” to Supreme Court decisions” [my two cents at Cato on rhetoric likening Obergefell to Dred Scott]
- Media firms including Time, Meredith, Advance, NPR jump into Spokeo case before high court, warn of Fair Credit Reporting Act litigation “quagmire” [Media Post]
- After a tainted-food episode, managers convicted without a showing of mens rea? Egg case deserves a closer look [Ilya Shapiro, Cato]
Sam Brunson, a Loyola (Chicago) professor specializing in tax law, searched IRS private letter rulings and sums up the results at the Mormon website By Common Consent (via Paul Caron/TaxProf, who assembles other links). For some academics’ views on whether the Bob Jones U. precedent (exemption denied to educational institution on grounds of race discrimination) will or should be pushed further into other areas, see Inside Higher Education and Caroline Corbin, SSRN (sex discrimination).
More on the Bob Jones U. case: Regulation magazine, Jan./Feb. 1982, more via Steven Hayward. More on the parsonage (housing) allowance, one bit of the tax code that does favor religious entities over otherwise comparable nonprofits: Ronald Hiner and Darlene Pulliam Smith/Journal of Accountancy, Erwin Chemerinsky/Duke (anti), Jonathan Whitehead and Becket Fund (pro). Journalists stirring the pot recently: Felix Salmon, Fusion; Mark Oppenheimer, Time.
Can sober correction ever catch up with viral junk about legal cases on the internet? Two new instances, one from the right and one from the left, leave me wondering.
I’ve now updated this 2008 Overlawyered post on a convict’s hand-scrawled, soon-dismissed “ban the Bible” lawsuit to reflect the story’s re-emergence in recent days as a much-shared item at mostly conservative social media outlets, which have passed on the story as if it were a new and significant legal development, typically omitting its date, circumstances, and disposition.
Meanwhile, Raw Story has now corrected a post in which it claimed that Oregon cake bakers Melissa and Aaron Klein were fined for supposedly “doxxing” (maliciously revealing personally identifying information about) their adversaries. (It credits a Eugene Volokh post for flagging the error.) But the source on which Raw Story based its report, blogger “Libby Anne” at Patheos Atheist, still hasn’t corrected her deeply flawed account, which has now had more than 252,000 Facebook shares.
Please think before you share.
In this half-hour Cato podcast, Caleb Brown interviews Roger Pilon and me on yesterday’s decision in Obergefell finding that states are constitutionally obliged to extend marriage to same-sex couples. I touch on some topics of wider interest (no, I don’t think polygamy is next; the Justices write and behave differently when it’s a really big case; the law’s treatment of churches mustn’t depend on whether their theology suits the government’s taste or not). And lots of more specialized points, such as Roberts’ weird demonization of the famed Lochner case in his dissent (“gay marriage and laissez-faire capitalism, peas in a pod!”), what I call Kennedy’s “gin and tonic” method of mixing Due Process with Equal Protection, and a remarkable story by Roger of getting Scalia to admit he doesn’t think the Court was correct when it recognized a constitutional right to send one’s kids to private and religious schools.
P.S. And here’s a video version of the same conversation:
The Jason Kuznicki paper I mention — on how legal practicalities undercut the idea of the government “getting out of marriage” in the sense of not attempting to certify who is married and who not — is here.
More links: Ilya Shapiro reacts at Cato (which had filed an amicus brief on the winning side urging an Equal Protection rationale, written by William Eskridge Jr. of Yale Law, Roger Pilon, Ilya Shapiro, and Trevor Burrus). David Bernstein has a lot to say about the continuity between Obergefell and the pro-individual-rights tradition of jurisprudence overthrown by the New Deal. Among those who approve of the outcome but would send the whole thing back for editing are Timothy Sandefur and Ilya Somin. Evan Bernick (writing before the decision) on the need for strong religious liberty protection. And David Boaz on how libertarians were there long, long before most others caught up. “The Libertarian Party endorsed gay rights with its first platform in 1972.” That’s not a misprint: 1972.