- In August the Fifth Circuit handed down an opinion enjoining guidance on criminal records in employment issued by the Equal Employment Opportunity Commission, an agency to which Congress has accorded no rulemaking powers. Importantly, the opinion casts doubt on the EEOC’s powers to act by guidance in many other areas as well [Federalist Society teleforum with Mark Chenoweth and Eileen O’Connor on Texas v. EEOC]
- Trump signs “ban the box” measure that restricts criminal-record inquiries by federal contractors, not just the government itself [Thomas Ahearn, ESRCheck; Roy Maurer/SHRM]
- Also on Federal contract compliance: “Will New Executive Orders Close OFCCP’s Highway to Enforcement Hell?” [Chamber Institute for Legal Reform]
- “Europe ended its age of religious wars by carving out safe space for each of the contending faiths, guaranteeing that none of them would be able to absolutely crush the others. We ought to try that again.” [Andrew Koppelman, Balkinization on why he thinks Justice William Brennan might have preferred the “Fairness for All” bill (earlier) to the Equality Act; Scott Shackford]
- “Ohio state trooper, who is black, repeatedly sexually harasses women while on duty, gets fired. He sues, alleging racial discrimination, citing the behavior of a white trooper who was not dismissed. Sixth Circuit (over a dissent): ‘Morris Johnson and David Johnson are both troopers who acted inappropriately. And they happen to share the same last name. But the similarities end there.'” [IJ “Short Circuit” on Johnson v. Ohio Department of Public Safety]
- Virginia employment law could lurch leftward given breadth of pending legislation [Hans Bader and more]
- New federal bill seeks middle ground on LGBT discrimination law and religious accommodation [Kelsey Dallas/Deseret News, “Fairness For All” coalition, sponsor Rep. Chris Stewart (R-UT) on bill] Early criticism from left and right [Daniel Silliman, Christianity Today; Katelyn Burns, Vox] The impulse to get past Culture War enmities is to be praised, even if, alas, some of the bill’s provisions would extend the coercive reach of federal law in ways libertarians would oppose;
- Third Circuit panel, Judge Thomas Hardiman writing, rules in favor of atheist group challenging Pennsylvania county’s rejection of bus ads. Creates split with D.C. Circuit [Charles Gallmeyer, Jurist; Hemant Mehta; Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System]
- “Eighth Circuit holds that videographers have First Amendment free speech right to refuse to provide services at same-sex weddings” [Joseph Singer, KNSI (Minnesota); Telescope Media Group v. Lucero] Update on Sweet Cakes by Melissa case in Oregon [Adam Gustafson, Federalist Society; earlier] Federalist Society teleforum on Brush & Nib case [Phoenix wedding calligraphy] with Eric M. Fraser, Jennifer Perkins, and Jonathan Scruggs, and earlier;
- And speaking of which: SCOTUS should resolve “expressive wedding vendor” issue once and for all [Ilya Shapiro and Michael Collins on Cato certiorari brief in (latest stage of) Arlene’s Flowers v. Washington, noting that “Cato is the only organization in the country to have filed briefs in support of both Jim Obergefell (lead plaintiff in the Supreme Court’s same-sex marriage case) and Jack Phillips (owner of Masterpiece Cakeshop)”; earlier]
- Article takes issue with currently popular idea that claims of harm to third parties should routinely defeat claims to religious accommodation [Mark Storslee, University of Chicago Law Review/SSRN]
- “Top Scholars, Diverse Religious Groups Ask SCOTUS to Reconsider Employment Division v. Smith — Again” [Joseph Davis, Becket/Federalist Society on certiorari petition in Ricks v. Idaho Board of Contractors]
New York bans the operation of adoption agencies that will not serve customers of all sexual and gender orientations and conditions of wedlock, whether or not such agencies receive any public funds or contracts. New Hope Family Services, a ministry that works with expectant mothers to place their newborns, has agreed to stop accepting new clients and now the question is whether it can go on servicing pending and completed placements. New York state is arguing no, but a Second Circuit panel of Judges José Cabranes, Reena Raggi, and Edward Korman has granted a preliminary injunction pending consideration of the agency’s First Amendment claims: “the strong public interest pertaining to adoption services, i.e., the welfare of children, both those already adopted and those awaiting adoption, is best served by granting rather than denying the requested injunction.” [ruling in New Hope Family Services v. Poole; Emma Folts/Daily Orange, Julie McMahon/Syracuse.com, Nicole Russell, Washington Examiner quoting me; my related WSJ piece on recent Western District of Michigan decision]
A new HHS plan to rescind LGBT bias rules would back the feds away from one of the most hotly contested frontiers of the culture wars, the role of religious agencies in foster care and adoption. I explain in a new Cato post.
On Thursday evening, “at a CNN candidate forum on gay rights, CNN’s Don Lemon asked Democratic candidate Beto O’Rourke: ‘religious institutions like colleges, churches, charities. Should they lose their tax-exempt status if they oppose same-sex marriage?’ O’Rourke answered ‘Yes’.” But O’Rourke’s dead wrong as a matter of politics, policy, and law, as I explain Friday post at Cato. I call his proposal “illiberal, anti-pluralist, inflammatory — and unconstitutional under current Supreme Court precedent,” and that’s just getting started. More: Bonnie Kristian/The Week; Charlie Nash, Mediaite (O’Rourke’s comments blasted by writers from across ideological spectrum). And: Dale Carpenter (principle of viewpoint neutrality in tax exemption law was vital to early gay rights movement; arguments O’Rourke uses against conservative Christians now are the arguments used against gays then).
And I’ve also published a new piece at The Bulwark on the legal arguments about whether the 1964 Civil Rights Act’s reference to “sex” should be construed to include sexual orientation and gender identity, a move I call “surprise plain meaning” and which is by no means unprecedented in the Supreme Court’s handling of employment discrimination law. More broadly, I examine and reject the notion that for the Court to ponder these questions is to put anyone’s “humanity up for debate.” Earlier on Bostock, Altitude Express, and Harris Funeral Home here, here, here, and here, and more from Dale Carpenter and Scott Shackford. Scott Greenfield responds.
For those keeping track, this makes three pieces I’ve published in two days, counting yesterday’s Wall Street Journal piece, all related to sexual orientation and the law although unrelated otherwise.
- Supreme Court reconvenes for new term and tomorrow will hear cases over whether Title VII ban on sex discrimination extends to sexual orientation and gender identity [SCOTUSBlog symposium with contributors including Richard Epstein, William Eskridge; Will Baude, Volokh Conspiracy; George Will; earlier here, here, here, etc.]
- New York City Commission on Human Rights declares it a violation of anti-discrimination law to use the term “illegal alien” in workplace, rental, or public accommodation contexts “with the intent to demean, humiliate, or offend a person or persons.” Does it complicate matters that both federal law and the U.S. Supreme Court use “illegal alien” as a neutral descriptive? [Hans Bader]
- Minneapolis passes law restricting landlords’ taking into account of tenants’ past criminal histories, evictions, credit scores [Christian Britschgi, Reason]
- Obama-era Equal Employment Opportunity Commission (EEOC) mandated burdensome pay data reporting by employers. Will courts allow a course correction? [Federalist Society teleforum with G. Roger King and James A. Paretti Jr., earlier here and here]
- Professor who directs social justice center at Washington, D.C.’s American University proposes new federal Department of Anti-Racism that would wield ample power to order everyone around along with preclearance authority over all “local, state and federal public policies”; also “no political appointees” [Politico via Amy Alkon; Kelefa Sanneh, The New Yorker with more on work of Prof. Ibram X. Kendi]
- Late in its tenure, Obama administration began warning Fannie Mae that discouraging some of the riskiest mortgages (>43% debt-to-income) “could be seen as a violation of the Fair Housing Act.” Fannie and Freddie “quickly complied” and brought the punch bowl back out [Damian Paletta, Washington Post/MSN]
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.
- My comment on the House-passed H.R. 5: “Proposed Equality Act would 1) massively expand federal liability in areas unrelated to sex, gender, or orientation; 2) turn 1000s of routine customer gripes into federal public-accommodations cases; 3) squeeze conscience exemptions hard. All are good reasons to oppose.” More: Scott Shackford, Elizabeth Nolan Brown, Hans Bader, and earlier here and here;
- America is not in a constitutional crisis: “Politicians have become incentivized to declare constitutional crises because it enhances their own importance as saviors and demonizes their opponents as illegitimate.” [Keith Whittington; Vox mini-symposium with Ilya Somin and others] Mike McConnell vs. Josh Chafetz on whether the current Congressional subpoena fights are really that different from politics of the past [Jonathan Adler] Calm, down-the-middle analysis of the issues raised by the Mueller report [Cato Institute chairman Bob Levy]
- “Mercedes Goes To Court To Get Background Use Of Public Murals In Promotional Pics Deemed Fair Use” [Timothy Geigner]
- Bizarro sovereign-citizen notions are found in the background of more than a few serious financial fraud cases [Ashley Powers, New York Times]
- Divestment and sanctions by state governments aimed at other U.S. states is a bad idea that never seems to go away. Now it’s being floated in Maryland, against Alabama [my Free State Notes post]
- “A federal judge in Texas wants you to know she’s sick and tired of whiny lawyers” [Justin Rohrlich, Quartz from December, Brad Heath on Twitter; Align Technology v. ClearCorrect, Judge Vanessa D. Gilmore]
- “Banana Costume Copyright Assailed at Third Circuit” [Emilee Larkin, Courthouse News, earlier]
- In a new piece for The Bulwark, I sort through some comments by presidential candidate Pete Buttigieg critical of identity politics;
- Supreme Court’s decision in Apple v. Pepper, with Justice Brett Kavanaugh joining four liberals, takes a little nick out of Illinois Brick doctrine limiting antitrust suits [my new Cato post]
- Ninth Circuit will soon hear case in which judge ordered Idaho prison system to provide inmate with transgender surgery; I’m quoted saying lower court decision amounted to battle of the experts [Amanda Peacher, NPR/KBSX, plus followup piece (“medical necessity” not a fixed standard, definitions of cruel and unusual punishment hitched in some ways to public opinion) and NPR “Morning Edition”; audio clip]
- “The Moral Panic Behind Internet Regulation” [Matthew Lesh, Quillette] “A Single Global Standard for Internet Content Regulation Is a Recipe for Censorship” [Jacob Mchangama, Quillette] And Jonah Goldberg on right-wing rage at social media platform moderation;
- Some politicos in Britain engage in “‘karaoke Thatcherism’, preaching low-tax, low-regulation mantras divorced from new challenges or detail,” then falling for truly bad ideas like laws to assure real estate tenants indefinite tenure against owners’ wishes [Ryan Bourne]
My new post at Cato covers the Supreme Court’s decision to resolve three cases in which it is argued that Title VII of the 1964 Civil Rights Act bans private workplace discrimination against gay and transgender employees. I cite a 2017 Seventh Circuit showdown on the question between Judges Richard Posner and Diane Sykes: “These philosophical divides on statutory interpretation — which of course play out every term in lower-profile cases — are likely to be on the Court’s mind next fall.” More: Jared Odessky, On Labor (rounding up commentary).