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.
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).
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)]
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.
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.”
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]
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?
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]
What does the pursuit of litigation do to litigants’ characters? What does it do to the character of organizations and whole societies? Does it undermine the humility that some (though not all) of us deem an important virtue in persons and institutions?
This week I’m leading a discussion on that subject at the John Templeton Foundation’s Big Questions Online. It starts with a brief essay in which I note the older view, held by many religions and philosophical schools but now out of favor in much of academia, that litigiousness is a kind of vice, to which people are perhaps peculiarly susceptible if they take to an extreme what is otherwise the virtuous impulse to pursue justice. I cite familiar sources (Abraham Lincoln, Bleak House) as well as those perhaps less familiar (Kleist’s Michael Kohlhaas) that shed light on how pride in one’s own quarrels, even (especially?) those that are rightful, can distort perceptions and harden sympathies.
My observations, however, do no more than scratch the surface of a big subject on which there is much to say. It’s a moderated discussion and your comments are welcome through the week. And please pass on word to others who might be interested.