Posts Tagged ‘sexual orientation’

Anti-discrimination law and the future of adoption

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.

Cato adoption conference now online

More kids find homes when government doesn’t stand in the way: videos are now online from Thursday’s successful Cato adoption conference. They include a first panel on discrimination law and religious agencies:

A keynote address on international adoption by Harvard law Prof. Elizabeth Bartholet:

And a final panel on policy obstacles to adoption.


I figure in all three sessions, in the first as introducer/panelist and in the other two as moderator.

U.S. House moves to side with religious agencies in adoption debate

Three years ago I took a critical view of the trend in many states and cities toward excluding from publicly funded adoptive placement of kids in public care relatively conservative religious agencies that decline to handle placements to families outside their belief group, to non-traditional families such as same-sex couples and single parents, or both. In recent years the ACLU and like-minded groups have stepped up the pressure with lawsuits in states like Michigan aimed at excluding these groups from access to public money unless they take all kinds of families.

Now a bill called the Child Welfare Provider Inclusion Act (H.R. 1881/S.B. 811), passed by the House of Representatives as a rider on the pending Labor/HHS appropriations bill, would prohibit states from taking adverse action against foster care and adoption agencies on the grounds that they refuse to engage in referrals, placements or other services that conflict with their religious or moral convictions. States found to have violated the rule would be subject to loss of 15 percent of their federal child welfare funding. The rule broadly prohibits “discriminating or taking an adverse action against” agencies and would give agencies broad legal remedies including attorneys’ fees.

I haven’t had a chance yet to review all the details of the bill, which in any case would need approval of the Senate and President before becoming law. The Ethics and Religious Liberty Commission of the Southern Baptist Convention (ERLC) and U.S. Conference of Catholic Bishops have papers in favor of the measure and Human Rights Campaign against.

In the mean time a well reported, balanced piece by Gillian Friedman on the controversy mentions tomorrow’s (Thursday’s) Cato conference in D.C. on adoption policy [Deseret News; more/related, Bobby Ross, Jr., Religion News Service in March] The panel on this subject leads off the conference, and includes Assistant Professor Stephanie Barclay of the J. Reuben Clarke School of Law at Brigham Young University; Sarah Warbelow, Legal Director at the Human Rights Campaign; Prof. Robin Fretwell Wilson of the University of Illinois College of Law; and me.

A look at Justice Anthony Kennedy’s record

Roger Pilon and I join Caleb Brown in This Cato podcast assessing the 30-year tenure of Justice Anthony Kennedy, who usually reached sound outcomes but often not by the reasoning we might have liked. Among the topics discussed: the gay rights cases, Kennedy’s change of tune on enumerated powers, and his authorship of Citizens United.

February 21 roundup

  • Minimum 18 age for marriage, stadium subsidies, bill requiring landlords to distribute voter registration material, dollar-home programs, and more in my latest Maryland policy roundup [Free State Notes; earlier on NJ first-in-nation ban on under-18 marriage]
  • Now shuttered by California regulation: startup that allowed home cooks to sell meals directly to neighbors [Baylen Linnekin]
  • Guess who’s hosting a program of his own on Russia’s RT network? Tub-thumping plaintiff’s lawyer, sometime RFK Jr. pal and longtime Overlawyered favorite Michael Papantonio;
  • “Should the governments give LGBT-owned businesses a leg up in public contracts?” (Answer: no. Set-asides and preferences are unfair in themselves and deprive taxpayers and those served of the best price/value proposition.) [Bobby Allyn, NPR Marketplace]
  • “Network effects” bogeyman gets deployed to bolster many an antitrust nostrum [David S. Evans and Richard Schmalensee, Cato “Regulation”] “The Future of Antitrust” Federalist Society video with Ronald Cass, Daniel Crane, Judge Douglas Ginsburg, Jonathan Kanter, Barry Lynn, moderated by Judge Brett Kavanaugh;
  • Arguments fated to lose: “After 4th DWI, man argues legal limit discriminates against alcoholics” [Chuck Lindell, Austin American-Statesman]

February 14 roundup

  • “One-Sided Loser Pays Is the Worst of Both Worlds” [Mark Pulliam at his new blog Misrule of Law, and thanks for mention]
  • My first piece for Quillette debunks claims of jump in rate at which gay men are being murdered in U.S.;
  • Welcome news: Department of Justice memo advises DoJ attorneys to seek dismissal of meritless False Claims Act suits [Reuters, Federalist Society teleforum with Brandon Moss, Greg Herbers/WLF, Michael Granston memo]
  • Empirical evidence on factors that lead to approval of low-quality patents [Timothy Lee, ArsTechnica, noting ideas for improving patent review process: (1) eliminate issuance fees, (2) limit re-applications, (3) give senior examiners more time per patent]
  • “Will we see tort reform in the midterms?” [Joseph Cotto interview with me for San Francisco Review of Books, YouTube audio, 33:51]
  • FSMA will drive many smaller farmers/foodmakers out of business, only question is how many [Baylen Linnekin, our earlier]

January 24 roundup

  • Bryan Caplan and Arthur Brooks on international adoption, the Hague Convention, and Type I and Type II error [Caplan/EconLog, Brooks/NYT]
  • It’s about the pecking order: enrolling a 3-month-old chicken in a “distinguished lawyer” marketing program [Conrad Saam]
  • West Baltimore police checkpoints, Montgomery County rent control proposals, taxes, regulations, gerrymandering and more in my latest Maryland policy roundup [Free State Notes]
  • Also from me: with Oprah Winfrey in the news, I recall the time I was on her talk show [Frederick News-Post]
  • Yet more from me: as part of a Reason symposium on Trump’s first year, his administration’s centrist course on gay issues;
  • More work for age discrimination lawyers? “The New York Times is looking for young writers” for paid positions according to its ad [archived original, and updated current page with legally safer wording, via @jackshafer]
  • “Copyright Troll Gets Smacked Around By Court, As Judge Wonders If Some Of Its Experts Even Exist” [Tim Geigner, TechDirt]

High Court debates wedding cakes and forced expression

“On the Left, some pine for a hard-line opinion that claims of religious liberty or free speech can never, ever provide an excuse for discrimination. But it’s not just the Alitos and Clarence Thomases who would oppose that outcome. All four liberal justices yesterday gave indications that even if they would not draw the line on compelled speech *here*, they would draw it *somewhere*.” My take on yesterday’s oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission is up at the New York Daily News.

The principles of free contract and association and the wrongness of compelled expression and participation will endure whether or not SCOTUS sees its way clear to recognizing them in this case. Earlier; Roger Pilon (“If there is intolerance here, it is from those who would force a man to choose between his religious beliefs and his livelihood”); Ilya Shapiro; Cato’s brief; Erica Goldberg. And I’m quoted in Brandon Ambrosino’s Washington Post coverage of the case (“the lasting influence is not primarily which side wins, but where to draw the line between what is and is not expression”) and by Chris Johnson in the Washington Blade (““Neither side [on the Court] wants to inflict a culture war on the country; they’re trying to work out something without culture war.”)

Dividing the cake: high court briefs show First Amendment split

Eugene Volokh and the Cato Institute amicus program hardly ever take opposite sides of a First Amendment case, but it’s happening in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. At issue is whether the concept of expression extends to cake decoration, and if so how far. (Only cakes bearing custom/unique messages or symbols?) It’s not an easy line to draw. [Adam Liptak, New York Times; Eugene Volokh/Dale Carpenter brief for American Unity Fund; Cato brief]

SCOTUSBlog has a symposium on Masterpiece Cakeshop. The exact couching of the facts — was Phillips being asked to create a cake or design one? — could be important to the outcome [Ronald K.L. Collins] There is a Cake Artists brief. [Althouse]

While on another note, “Christian Cake Bakers and Gay Coffee Shop Owners: Why Freedom of Association Is for Everybody” [Jonathan Rauch, National Affairs; Scott Shackford, Reason] Earlier here, here, etc.