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churches

Massively overbroad discovery demands are among the most common abuses in civil litigation, and it’s hard to get judges or policymakers to take seriously the harm they do. But the City of Houston, represented by litigators at Susman Godfrey, may have tested the limits when it responded to a lawsuit against the city by a church-allied group by subpoenaing the pastors’ sermons along with all their other communications. [KTRK, Houston Chronicle; text of subpoena request; motion to quash] The city has already backed off in part, saying it will narrow the demands to focus on the issue of whether the plaintiffs were aware of petition procedures. [Jacob Gershman, WSJ]

Eugene Volokh has a useful analysis (more) of how churches, like reporters, do have some additional First Amendment protections against being asked to disclose just anything. But a way to protect litigants and third parties more systemically would be to narrow the scope of discovery generally (e.g. to information relevant to the actual claims and defenses in the suit) and shift more burdens of cost and proof to the demanders’ side.

I hope the city is shamed into calling off the fishing expedition entirely. That having been said, I find it fascinating that so much of the coverage in the conservative press downplays or omits the fact of the ongoing litigation (Todd Starnes buries it in paragraph 8, and Ted Cruz’s statement never even mentions it) thus leaving many readers with the impression that the city is using police or administrative powers to demand the information, which would pose an entirely different set of challenges for public liberty.

[Title updated 9 a.m.]

P.S.: This contentious courtroom dispute may previously have featured troublingly broad discovery demands from the other side, if one accepts as valid the comments of “Mike in Houston” at Stephen Miller’s post: “there’s no mention of the subpoenas coming from the anti-HERO side that have targeted a whole range of city employees, private citizens, nonprofits and pastors who spoke out in favor of the ordinance (and assisted with the pro-HERO organization efforts.)” Yet more: Sarah Posner, Religion Dispatches (various liberals, moderates, church-state separationists, and pro-LGBT figures critical of requests’ overbreadth).

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Ken at Popehat has the story on a court’s ruling for fees and costs in Ergun Caner v. Jonathan Autry, filed by a religious leader who had come under criticism for less-than-forthright descriptions of his own past. “The court ruled that Caner (1) pursued the case after Autry took the videos down, (2) demanded, as a condition of settlement, that Autry’s young children sign a non-disparagement agreement, (3) delayed the case, (4) failed to seek discovery, opposed the motion to dismiss on the grounds that he needed to take discovery, but could not articulate what discovery he needed, (5) contradicted himself, (6) made unreasonable legal arguments without any support (like the ‘you must be qualified to criticize’ argument), and most importantly (7) filed the case to silence criticism.” Under the prevailing “American Rule” on fees it’s extremely hard for the victim of a meritless suit to recover attorney’s costs, but this one was extreme enough to be an exception.

Cato’s Caleb Brown interviews me about this week’s Supreme Court decision in the local-government invocation case of Town of Greece v. Galloway, discussed earlier here and here.

A few measured, non-alarmist reactions to the decision: Noah Feldman via Rick Pildes, ABC News (quoted views of Rick Garnett, Notre Dame, and Daniel Mach, ACLU), and Howard Wasserman/Prawfs. And Paul Horwitz speculates on whether Kennedy’s formula will work when invocational legislative prayer is employed in knowingly divisive ways. More: a different take on the issue from Christian syndicated columnist Cal Thomas.

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I discuss yesterday’s decision in Town of Greece v. Galloway at Secular Right, and conclude that Justice Anthony Kennedy’s carefully measured majority opinion, while satisfying neither side in the culture wars, is one I and most other Americans can live with (& welcome Eugene Volokh, SCOTUSBlog, and Scott Greenfield readers).

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  • Mayor de Blasio settles firefighter bias suit on terms sympathetic to plaintiffs [City Journal: Dennis Saffran and Seth Barron]
  • One way to dodge some Culture War fights: roll meaning of “public accommodation” back to travel, lodgings, places of public amusement, etc. [Andrew Kloster, Heritage] As original/creative expression goes, florists and cake-bakers sometimes outdo NYT’s Greenhouse [Ann Althouse] From Dixie Chicks to Hobby Lobby, few escape hypocrisy when commerce collides with convictions [Barton Hinkle]
  • Department of Education’s Office of Civil Rights investigating Florida’s popular Bright Futures college scholarship program [Orlando Sentinel]
  • Do EEOC mediators overstate risk of legal action to extract big settlements from employers? [Bloomberg BNA, Merrily Archer on survey] New Colorado expansion of employment liability bad news for large and small employers alike [Archer]
  • “Religious exemptions — a guide for the confused” [Eugene Volokh]
  • Washington Post columnist repeats myth that Lilly Ledbetter “did not know she was being paid less than male counterparts” until after statute of limitations had run; Hans Bader corrects [letter to editor]
  • If helping out local people was one reason your town decided to back public housing, you might have been played for suckers [AP on DoJ suit against Long Island town over local preference]

July 27 roundup

by Walter Olson on July 27, 2013

  • Authorities arrest woman they say obtained $480,000 by falsely claiming injury from Boston Marathon bombing [CNN]
  • More on the buddy system by which Louisiana officials pick private-practice pals for contingency contracts [WWL, The Hayride, Melissa Landry/La. Record; earlier on levee district's new megasuit against oil industry]
  • “Why would the President meet with the IRS chief counsel rather than his own counsel at OLC, and without the IRS commissioner present?” [Paul Caron, TaxProf] “The IRS as microcosm”: government lawyers lean left politically [Anderson, Witnesseth]
  • California county lead paint recoupment case finally reaches trial, judge jawbones defendants to settle [Mercury-News, Chamber-backed Legal NewsLine]
  • The insanity of film production local incentives, Georgia edition [Coyote]
  • Questioning NYT’s underexplained “Goldman aluminum warehouse scam” tale [Yglesias, Stoll, Biz Insider]
  • Yes, government in the U.S. does do some things to accommodate Islam, now don’t get bent out of shape about it [Volokh]

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Mark Graber at Concurring Opinions, reviewing James Fleming and Linda McClain, Ordered Liberty, a book which lays out a constitutional analysis consistent with the viewpoint Graber calls “Solid Liberalism”:

Another point where Ordered Liberty threatens but pulls back from challenging core Solid Liberal beliefs occurs during the discussion of Bob Jones v. United States. Ordered Liberty suggests that the Supreme Court in that case correctly ruled that religious organizations can be denied tax exemptions if they teach racism and other abhorrent doctrines. I confess to be troubled by the analysis. I suspect that most Jewish schools at the very least encourage students to date and marry other Jews, that these schools teach the doctrine that Jews are a chosen people, and that a great many other religions engage in similarly illiberal teaching. Given the importance of the welfare state in the lives of most citizens, a point Fleming and McClain make elsewhere in the book, I confess to some discomfort with the constitutional rule they eventually endorse that forbids religious coercion but permits religious groups to be denied state benefits that go to other religious groups with more liberally accepted beliefs. I think based on what the authors suggest elsewhere in the book, a case can be made that Bob Jones ought to be rethought.

In the Harrisburg Patriot-News, Ivey DeJesus trumpets the views of a “leading legal expert,” specifically “one of the country’s leading church and state scholars” who says, contrary to a state lawmaker’s assertions, that there’s no constitutional problem with reopening lapsed statutes of limitations so as to enable child-abuse lawsuits by now-grown-up complainants. Prof. Marci Hamilton is indeed a well-known church-state scholar, and there is indeed precedent for the (perhaps strange) idea that courts will not necessarily strike down retroactive legislation as unconstitutional so long as its impacts are civil rather than criminal. But it’s not until paragraph 18 that DeJesus, after introducing the expert at length by way of her academic affiliations, bothers to add a perhaps equally relevant element of her biography: she has “represented scores of victims in the Philadelphia Archdiocese clergy sex abuse case.” Why bring that up?

Following up on last January’s report: the Disciple Fellowship Christian Church of East St. Louis, Ill. has reportedly settled Cheryl Jones’s suit claiming that ushers were not properly provided to catch falling worshipers during a service in which congregants “received the Spirit”. Jones was injured when others fell on her. We have earlier reported on similar cases from Michigan, Oregon, Tennessee, and Australia. [Christina Stueve Hodges, Madison-St. Clair Record; update ($3K)]

February 14 roundup

by Walter Olson on February 14, 2013

  • “From Chevron to Arlington: The Court and the Administrative State at Sea” [Michael Greve]
  • “Tawana Brawley ordered to pay settlement to man she accused of rape” [ABA Journal] False memories of being assaulted by Tigger, and how that can happen [Lowering the Bar; William Saletan, Slate, debunks a Gawker story, 2010]
  • “Portlandia — The Bed and Breakfast Inspector” [Armisen/Brownstein, IFC]
  • Writer at National Review Online sees Obama’s “pro-marriage” talk as logically entailing big new entitlement program, and applauds that [W. Bradford Wilcox]
  • “What’s Next For The Class Action Plaintiffs’ Bar? Getting Deputized By State Attorneys General” [Kevin Ranlett, Mayer Brown]
  • “Christian School’s Lawsuit May Test Supreme Court’s Religious Freedom Ruling in Hosanna-Tabor Case” [Fed Soc Blog]
  • “The Slippery Slope (Insurance Fears = No More Sledding)” [Free-Range Kids]

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January 20 roundup

by Walter Olson on January 20, 2013

  • I’m in today’s NYT Book Review reviewing “Foundation,” Peter Ackroyd’s new book on English history up to the Tudors [NYT]
  • Stanford Law School launches religious liberty clinic [Karen Sloan, NLJ] AALS panel on “The Freedom of the Church” [Rick Garnett, Prawfs]
  • Party in breach, nasssty thief, we hates it forever: lawyer parses Hobbit’s Bilbo-dwarves contract [James Daily, Wired]
  • To pay for roads, vehicle-mile fees > gas tax, but either > general sales tax, argues Randal O’Toole [Cato at Liberty]
  • Steven Teles on the high cost of opaque, complex and indirect government action [New America via Reihan Salam]
  • I’ve given a blurb to Mark White’s forthcoming nudging-back book on behavioral economics, “The Manipulation of Choice: Ethics and Libertarian Paternalism” [Amazon]
  • “Internet-Use Disorder: The Newest Disability?” [Jon Hyman]

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Bork and his adversaries

by Walter Olson on December 20, 2012

I’m in today’s New York Post with an op-ed about how, agree or disagree with Bork’s views, you can’t defend many of the tactics used against him in 1987. Earlier here (& welcome Nick Gillespie/Reason, Andrew Sullivan, Stephen Bainbridge, Reihan Salam, Tom Smith, Pejman Yousefzadeh, Jonathan Adler/Volokh, Memeorandum readers).

More: David Frum recalls a very funny Bork law exam. Ramesh Ponnuru defends Bork’s famous “inkblot” comment as reasonable in its context. Much more on that question from Randy Barnett. Paul Alan Levy of Public Citizen casts a vote against. At Secular Right, I add another observation or two about Bork’s religious views. Via Andrew Grossman, a clip on the beard issue.

Yet more: Richard Epstein at Ricochet. Meanwhile, some commentators have taken the line that uncivil or not, the actual charges by Kennedy and others against Bork were accurate enough. Mickey Kaus, who is sympathetic to judicial restraint but less so to Bork, links to a 1989 New Republic review in which he shed light on that:

True, paranoia on Bork’s part is amply justified. There is a liberal legal culture, and it was out to get him. … And it got him, in part, by sleazily misrepresenting some of his views. Most famously, a narrow Bork ruling was falsely characterized as favoring “sterilizing workers.” But there were other nasty distortions, not all by fringe interest groups. Senator Edward Kennedy charged that in “Bork’s America… schoolchildren could not be taught about evolution,” when Bork had never opposed teaching evolution. Senator Paul Simon implied Bork might approve the pro-slavery decision in Dred Scott.

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Election roundup

by Walter Olson on November 6, 2012

Voters in four states will decide same-sex marriage ballot questions on Nov. 6. As many readers know, I’ve been writing actively on the Maryland question, and those interested in catching up on that can follow the links here to find, among other things, my recent interview on the subject with the Arab news service Al-Jazeera, my thoughts on Judge Dennis Jacobs’s decision striking down Section 3 of DOMA (the federal Defense of Marriage Act), and my reaction to the other side’s “bad for children” contentions.

The Cato Institute has been doing cutting-edge work on the topic for years from a libertarian perspective; some highlights here.

Yet more: Hans Bader on religious liberty and anti-discrimination law [Examiner, CEI] And my letter to the editor in the suburban Maryland Gazette: “Civil society long ago decoupled marriage law from church doctrines.”

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What the Vice President said at the debate isn’t really right. [Jonathan Adler]

They’re tripping up some unwary homeowners: “1000s of families could be caught by church repair bills as archaic rights revived” [Telegraph, more]

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At Prawfsblawg, Paul Horwitz, Rick Garnett and others have a discussion of claims (typified here and here) that it’s oppressive not to let churches electioneer with tax-deductible funds. Other views: Religion News Service/HuffPo, Bloomberg editorial, Stephen Colbert via TaxProf (to an IRS-defying pastor: “Other people have to use after-tax money for their political speech, but you guys get to use pre-tax money for political speech.”) Or is the better answer to liberate both secular and religious 501(c)(3)s to express election views, with the possible result of enabling political donors generally to take a tax deduction on money spent to promote their preferred candidates and causes?

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Peter Ferguson says the recitation of the Lord’s Prayer at Grey County meetings not only violated the national Charter, but caused him “anguish, discrimination, exclusion, rejection and loss of enjoyment of life” to the tune of C$5,000. [National Post]

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