Campus climate roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Campus speech roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Social media law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

(Some) conservatives for social media regulation is a post from Overlawyered - Chronicling the high cost of our legal system

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.

My Newsweek piece on the First Amendment Defense Act (FADA) is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court and constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Sullivan quotes my observation on Facebook:

I will note that I have learned through hard experience not to run with stories from ADF (Alliance Defending Freedom) or Todd Starnes without seeking additional corroboration. As a libertarian, I oppose subjecting this family business to any legal compulsion whatsoever, but it’s also important (as in the Dallas pastors case) to get the facts straight before feeding a panic.

While I hope the Knapps succeed in establishing their exemption from this law, I am still shaking my head at the ADF’s framing efforts, which via Starnes set off a predictable panic about dangers to religious liberty (see also, last week, on the Houston pastors subpoena). In this instance, those efforts amount to something very akin to hiding the ball, including (as cited by Sullivan) the quiet legal revamping of the business onto a religious basis in recent weeks and the silent removal of extensive language on its website that until earlier this month had promoted the chapel as a venue for civil, non-religious wedding ceremonies.

Now, the Knapps are free (or should be, in my view) to change their establishment’s business plan overnight to one that welcomes only ceremonies consistent with Foursquare Evangelical beliefs. But shouldn’t their lawyers be upfront that this is what’s going on? Especially since even sophisticated commentators, let alone casual readers, are construing the city of Coeur d’Alene’s legal position by reference to what its lawyer said back in May, when the Knapps were running the business the old way. (Back then, as Doug Mataconis notes, coverage included the following: “Knapp said he’s okay with other ministers performing marriages at their facilities but it is not something he will do.” — a position that appears to have changed, again without acknowledgment.)

Let’s be blunt. ADF, which was involved in helping the Knapps revamp their enterprise onto a religious basis, is by the omissions in its narrative encouraging alarmed sympathizers to misread the situation.

Could the city of Coeur d’Alene force the Knapps to provide ministerial officiation of same-sex weddings? As Eugene Volokh explains, in a post based on the initial reports, the clear answer is no, since such compulsion would be an unconstitutional forcing of speech and “would also violate Idaho’s Religious Freedom Restoration Act.”

Besides those two distinct layers of legal protection, they are likely to benefit from a third, noted in this May article in the Spokane Statesman-Review: “religious entities are exempt from the Coeur d’Alene ordinance” and “pastors in the city are not obligated to perform same-sex weddings.” (Todd Starnes links to the Spokane article, but makes no reference to these bits.)

Possibly — the statements of municipal lawyer Warren Wilson in May are ambiguous — the city saw the then-secular Hitching Post as obliged not only to provide the equivalent of a hall rental to same-sex applicants, and sell them silk flowers and other incidentals, but also connect them with an outside officiant sympathetic to their union to pronounce the ceremony. It is by no means clear that the city would apply the same requirements to the Knapps’ newly revamped and far more explicitly religious Hitching Post. It is even more of a stretch to imply, as Starnes does, that the city is on the verge of “arresting” the Knapps.

Even absent any obligation to officiate, it seems to me that a family business in this situation has at least as sympathetic a case as the cake bakers, wedding photographers, invitation engravers, and hall providers who sought exemptions in previous episodes. But really, isn’t our libertarian case strong enough that it can stand on an accurate description of what’s actually going on?

Update: Via Eugene Volokh, Coeur d’Alene’s attorney has now sent a letter making clear the city’s position that even the newly reorganized Hitching Post is subject to the law because the law’s religious exemption covers by its terms “nonprofit” religious corporations, which theirs is not. Volokh argues, I think plausibly, that this position will fail in court if applied to compel the provision of ceremonies because both the constitutional right against forced speech and the state Religious Freedom Restoration Act extend in their application beyond nonprofits. Indeed, the city lawyer’s own letter cites a provision, section 9.56.040, in the city’s anti-discrimination ordinance, stating that the ordinance “shall be construed and applied in a manner consistent with first amendment jurisprudence regarding the freedom of speech and exercise of religion”. This provision would appear not merely to permit, but to require, the city to back off enforcement efforts that conflict with speech and religious freedoms, whether exercised in a non-profit or for-profit setting. The letter — which in its reference to “services” draws no distinction between functions like hall and equipment rental, and expressive ceremonial services — would thus appear to put the city on a collision course with the speech and religious freedoms of the Knapps.

One day later: City says it’s considered the matter further and realizes now that nonprofit status is not required to qualify for exemption. [Boise State Public Radio via Shackford] Quoting BSPR: “The group that helped create Coeur d’Alene’s anti-discrimination ordinance says the Hitching Post shouldn’t have to perform same-sex marriages. The Kootenai County Task Force on Human Relations says in a letter to the mayor and city council that the Knapps fall under the religious exemption in the law.” More coverage: KREM, Boise Weekly, Religion News Service, Sarah Posner/Religion Dispatches (discussing this post).

Idaho Hitching Post case is a post from Overlawyered - Chronicling the high cost of our legal system

The tension between moral reformers who insisted on a virtually unlimited view of the “police powers” of government (i.e., to regulate in ways intended to protect the health and morals of the citizenry) and the Constitution’s framers, who feared the results of allowing factions to use government power for their ends, was crucial in shaping constitutional law during the 19th and early 20th centuries.

The book shows that by the time the New Deal’s aggressive expansions of federal power came before the Supreme Court, its earlier decisions in favor of approving legislation against liquor and lotteries had so undermined the defenses of property rights, contract, and federalism that it was nearly inevitable that the Court would cave in.

For example, when the Court decided the 1934 case of Blaisdell v. Savings and Loan, gutting the former understanding of the impairment of contracts clause, Chief Justice Charles Evans Hughes cited an earlier decision on interstate shipment of lottery tickets which had acquiesced in a new extension of the police power, on the grounds that a previously sacrosanct constitutional barrier could be “qualified” when a state needed to “safeguard the interests of its people.” [Forbes]

“The Evangelical Origins of the Living Constitution” is a post from Overlawyered - Chronicling the high cost of our legal system

Police and prosecution roundup is a post from Overlawyered - Chronicling the high cost of our legal system

I could find about a thousand far more sympathetic examples of folks screwed over by government land use regulations — e.g. people whose puddle in the backyard is suddenly a wetlands that they can’t build on. But for some reason Conservatives all rushed to pile on this one example. Stupid.

Only a thousand?

Additional Bundy Ranch thought is a post from Overlawyered - Chronicling the high cost of our legal system