If you missed my Wall Street Journal piece on how the Michigan foster care decision isn’t really much of a victory for religious accommodation, Cato now has posted an unpaywalled version. Earlier discussion here.
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.
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)
Well, why not? I outline some arguments in a new post at Cato.
- Oregon: “Union-Backed Ballot Initiative Would Limit Grocery Stores to 2 Self-Checkout Machines” [Christian Britschgi, Reason]
- Not unexpectedly, given its own precedent, Ninth Circuit rules Idaho inmate entitled to sex reassignment surgery [Amanda Peacher and James Dawson, NPR; pre-ruling (July) KRCC/NPR podcast and interview with Peacher, I’m quoted as in earlier coverage; earlier]
- I wrote a personal recollection at Cato of philanthropist David Koch;
- “Flight attendants and airport staff now get trained to intervene in what federal officials (falsely) portray as an epidemic of airline-based sex trafficking which can be spotted by good Samaritans who know the ‘signs.'” And mistakes will happen [Elizabeth Nolan Brown, Reason]
- Population growth has caused the Ninth Circuit to bulge at the seams. Left-right political advantage isn’t a good reason to break it up, but there are plenty of nonpolitical reasons that are good [Ilya Shapiro and Nathan Harvey, George Mason Law Review]
- “The legal profession was regarded by both the authors of The Federalist and Alexis de Tocqueville as the anchor of the republic —- a barrier to destabilizing innovation and a constraint on excessive democratic passions.” What happened? [John McGinnis]
I’m in today’s Wall Street Journal [paywalled for some readers] with a piece on last week’s vote by the San Francisco Board of Supervisors to brand the National Rifle Association a “domestic terrorist organization.” The resolution repeatedly takes the view that “advocacy,” “propaganda” and “promotion” of certain political viewpoints, or of gun ownership, constitutes terrorism or, as the case may be, “material support” for it.
First Amendment aside, there’s more than just symbolism in the board’s divisive attempt to change the meaning of words by main force. The resolution also declares a crackdown on city contractors who do business with the gun-advocacy group, and under current law that is very likely to be struck down in itself as inconsistent with the First Amendment under a 1996 Supreme Court precedent.
Some related links: the resolution; the 1996 Board of County Commissioners v. Umbehr case, in which the Supreme Court ruled 7-2 that the First Amendment restrains localities’ discretion to shun contractors because of their politics; Jonathan Adler in 2015 on the Chick-Fil-A controversies; and reporting on the San Francisco supervisors’ resolution to use nicer, not-so-dehumanizing terminology about criminals (Jim Geraghty at National Review noticed this before me).
If you didn’t follow the Leif Olson episode last week, here’s the nutshell version: the Bloomberg Law news operation ran a wildly unfair piece attacking a newly appointed Labor Department official; Olson, a conservative lawyer who is no relation to me, briefly lost his job but then was reinstated. I’ve written up my thoughts at Cato (“Man Engages In Sarcasm On Social Media. Career Survives”) and an editor at Bloomberg Law has already furnished a piquant sequel.
An amusing correction in New York magazine’s profile of Sen. Elizabeth Warren: “predators” to “creditors.” (The misheard quote is from a law professor who studied with Warren, not from Warren herself.) My new Cato post explains.
My new Cato piece begins:
Yesterday the Business Roundtable released a “Statement on the Purpose of a Corporation” signed by 180 CEOs of major companies. It proclaims “a fundamental commitment to all of our stakeholders,” including customers, employees, suppliers, communities, and, finally, shareholders. It is being widely interpreted as a victory for anti-business campaigners and “corporate social responsibility” advocates, and perhaps also as a repudiation of the shareholder-primacy norm memorably defended (though in no way originated) by free-market economist Milton Friedman.
Read on to see why I’m skeptical that the statement can be pinned down as meaning much of anything at all — and why, if it does signify anything beyond happy talk, it will probably turn out to be a bad idea.