The separatism-minded Spanish region of Catalonia has enacted a law under which “the person accused of homophobic acts will have to prove his innocence, reversing the presumption of innocence until proven guilty.” [El Pais, TheLocal.es] The law includes fines for anti-gay occurrences in the workplace. Advocates defended the shifting of the burden of proof onto the accused to prove innocence as a “positive discrimination measure [that] is already in place for other offenses, such as domestic violence against women, in instances when it is very difficult to prove.” [VilaWeb] (& welcome Andrew Sullivan readers)
“…Hire others in the same protected group.” [Jon Hyman, Ohio Employer's Law Blog] Wait a minute. Isn’t that discrimination? And if, as Jon Hyman argues with some show of logic, employers have a strong incentive to follow this advice in replacing a dismissed employee given the way courts currently handle bias complaints, should we be disturbed that the law is itself encouraging discrimination?
Robert and Cynthia Gifford offer their Liberty Ridge Farm in Schaghticoke, N.Y. as a wedding venue. New York has now fined them $13,000 for politely declining to host a gay wedding. They’ll also have to train their employees in compliance. [LGBTQ Nation, WNYT, Village Voice] Earlier on cakes and more cakes, flowers, photographers, etc. etc. More on this topic: Scott Shackford, Reason.
“Study results in jurisdictions with state-level protections against housing discrimination on the basis of sexual orientation unexpectedly show slightly more adverse treatment of same-sex couples than results in jurisdictions without such protections.” [Samantha Friedman et al., "An Estimate of Housing Discrimination Against Same-Sex Couples," SSRN]
My first appearance at Cato’s Free Thoughts podcast series at Libertarianism.org, this is feature length — an hour, as opposed to a few minutes as is typical with Cato’s daily podcast. (Direct SoundCloud and YouTube links). The description:
Walter Olson joins Aaron and Trevor for a discussion on the evolution of discrimination law in the American legal system. They talk about common carrier obligations, preferential treatment and employee discrimination suits, the disparate impact of anti-discrimination laws —- especially in hiring decisions —- and the role of law schools and academia in perpetuating this cycle.
I wrote about many of these issues at length in The Excuse Factory, and expanded on the law-school angle in my more recent Schools for Misrule. You can follow our tags for more background on discrimination law generally, disabled rights and the ADA, age discrimination law, and many other topics.
P.S. From David Bernstein, Cato Unbound, 2010: “Context Matters: A Better Libertarian Approach to Antidiscrimination Law”
A discrimination-law panel in the state of Colorado has confirmed a ruling that Jack Phillips, a baker of wedding cakes, cannot turn away a gay couple’s request based on religious scruples, and further ruled, quoting the Denver Post, that he is “to submit quarterly reports for two years that show how he has worked to change discriminatory practices by altering company policies and training employees. Phillips also must disclose the names of any clients who are turned away.” [Scott Shackford; CBS Denver]
And the curious thing is, they’re from prosecutors. “The prosecutors’ office replaced part-time assistant prosecutors with full-time positions in 2011. Eight of the part-time employees who were replaced sued the city for age, race and/or gender discrimination, The Kansas City Star reported. … The eight former assistant city prosecutors filed their lawsuits individually and alleged different circumstances.” [Claims Journal]
New WSJ op-ed by Eugene Volokh and my colleague Ilya Shapiro, with which I agree 100%: “We support the extension of marriage to same-sex couples. Yet too many who agree with us on that issue think little of subverting the liberties of those who oppose gay marriage. Increasingly, legislative and judicial actions sacrifice individual rights at the altar of antidiscrimination law.” Existing precedent affords a handy if narrow way to reverse New Mexico’s wrong-headed Elane Photography decision: “The Supreme Court’s ruling in Wooley guarantees the right of photographers, writers, actors, painters, actors, and singers to decide which commissions, roles or gigs they take, and which they reject.”
Related on bake-my-cake laws: in the absence of more robust rights to freedom of association, could we at least narrow what’s a public accommodation? [Scott Shackford, Reason; David Link, Independent Gay Forum (on precedent of landlord reluctance to rent to cohabitors] Earlier on photography and cake cases here, here, here, here, here, here, here, here, etc.
P.S. Cato podcast with Caleb Brown interviewing Ilya Shapiro on the topic.
I discussed it yesterday at Cato at Liberty, shortly before Arizona Gov. Jan Brewer vetoed the bill. My Cato colleague Ilya Shapiro’s thoughts are here. For those who want a deeper dive, here’s the Douglas Laycock-drafted letter on the bill in its entirety, and here is the student note he cites making a case for courts’ application of RFRA to private lawsuits. (& welcome visitors: Ramesh Ponnuru, Paul Mirengoff, Stephen Richer/Purple Elephant, Memeorandum, Hans Bader)
P.S. To clarify, the Arizona bill would have enacted into law as part of the state’s mini-RFRA two broad applications of RFRA that many courts have been unwilling to concede to advocates heretofore. One is its availability as a defense in private litigation, not just in discrimination complaints but across the entire range of legal disputes arising in some way from state (in this case) law. That’s potentially a broad intervention into otherwise available private rights, and the fact that it’s in no way limited to discrimination law is one reason I would foresee that it would wind up having some surprising or unintended consequences along the line. A second broad application which drew fire from some critics would be to make available to businesses and various other nonprofit and associational forms of organization the defenses and other remedies otherwise available to individuals. I noted in this post a few weeks ago a high-profile case in which a panel of the D.C. Circuit, parting company from the Fifth, declined to recognize business coverage under the federal RFRA.
Turned down by all 150 (or however many) Denver bakers in their quest for a wedding cake, this couple had no choice but to sue. Oh, not really: they had an endless supply of perfectly good alternative options, but they apparently wanted to make a point by suing, as did the ACLU which represented them. [Associated Press; earlier here, here, etc.]
I’ve got a new post at Cato asking how that could have come to be. Earlier on Elane Photography v. Willock here, here, etc.
Reacting to my Cato post, a couple of readers have responded, in effect: Isn’t the ACLU just a doctrinaire Left-liberal organization these days, rather than a bulwark of civil liberties? To which my answer is: I’d describe it as an organization with lively internal divisions, some factions of which push it in a doctrinaire Left direction, others of which want it to be more of a robust civil liberties organization. (As witness last year’s “Mayors vs. Chick-Fil-A” controversy, in which the ACLU of Illinois took a strong and clear civil libertarian stand while the ACLU of Massachusetts seemed to lean more toward a doctrinaire-Left position.) Some speak ironically of the “civil liberties caucus” that soldiers on thanklessly within the ACLU. I want to encourage that caucus and let it know it is appreciated. (& Stephen Richer/Purple Elephant, Coyote).