Should a pharmacy owner with religious scruples be free not to stock a drug? Think before you answer [A. Barton Hinkle, Richmond Times-Dispatch on Supreme Court’s denial of certiorari in Ninth Circuit case of Stormans v. Wiesman; Alito dissent joined by Roberts and Thomas]
On my trip to San Francisco last week I was delighted finally to meet Kevin Underhill, longtime writer of one of the most consistently funny and well-written of legal blogs, Lowering the Bar. If there were any justice in the world I would link a post of Kevin’s every day or two, but for the moment I’ll just note this one from last month: For years now, China has “forbidden anyone to reincarnate without [its] express written permission.”
On Tuesday the Cato Institute held a daylong conference on religious liberty. It was interesting throughout, but especially for its afternoon session on public accommodations, featuring Roger Pilon of Cato, Louise Melling of the American Civil Liberties Union (ACLU), and
Mark Rienzi of the Becket Fund for Religious Liberty and Catholic University. Coverage: Ramona Tausz, The Federalist.
Also notable as a cogent summary of the state of play on the federal Religious Freedom Restoration Act and its state equivalents (RFRAs), the luncheon keynote speech by University of Virginia law professor Doug Laycock, of FOIA-controversy fame:
More videos from other sessions at the conference page.
A new Cato podcast with Jay Richards and Caleb Brown explores the relationship between economic and religious liberty. Related: Ilya Shapiro and Michael McConnell on the Supreme Court’s punt in the Little Sisters of the Poor case (Zubik v. Burwell) on ObamaCare religious accommodation. And Cato will be holding a day-long conference on religious liberty Jun. 14 with Doug Laycock, Roger Pilon, Hon. William Pryor, and many other formidable names. More information, and online registration, here.
Last summer I was a panelist in New York City when the law firm of Fried Frank hosted its 15th annual Michael R. Diehl Civil Rights Forum, on the topic of “Balancing Liberties: The Tension between LGBT Civil Rights and Religious Exemptions.” It’s now been posted online. Other participants included Marci Hamilton (Cardozo Law School and private practice) and Rose Saxe (ACLU). Of the three, I was the panelist who defended the broadest legislative scope for exemptions based on conscience and religious scruple from laws of otherwise general applicability. Jesse Loffler moderated.
- How the courts came to extend First Amendment protection to art, music, movies, and other expression not originally classed as “press” or “speech” [new Mark Tushnet, Alan Chen, and Joseph Blocher book via Ronald Collins]
- Cato amicus: church enterprises should be eligible for recycling program on same terms as secular businesses [Ilya Shapiro and Jayme Weber]
- “A Political Attack On Free Speech And Privacy Thwarted — For Now” [George Leef, Forbes on AFP v. Harris, earlier] Bill filed by Rep. Peter Roskam would keep IRS from collecting names of donors to nonprofits [Center for Competitive Politics]
- Newly enacted Tennessee conscience exemption for psychological counselors and therapists avoids some of the dangers of compelled speech [Scott Shackford, Reason]
- Cook County Sheriff Thomas Dart, benchslapped by Judge Richard Posner after sending credit card companies letters urging them to cut off dealings with Backpage.com, now seeks Supreme Court certiorari review [Ronald Collins, earlier here, here, and here]
- One problem with that Mississippi law: it gives extra protection to some religious beliefs about sex and marriage but not others [Popehat; my guest appearance on Mike Slater show, San Diego’s KFMB]
Enough already with the bans on so-called inessential travel: short of an impending civil war, boycotts, sanctions, and embargos against U.S. states by the governments of other U.S. states and cities are a truly bad idea [Nathan Christensen, Washington Post]
Relatedly, Gillian White quotes me in the Atlantic on North Carolina’s HB 2 controversy, the latest in a series of battles over discrimination law, religion, business, and LGBT persons, at this point almost entirely symbolic to large publics on both sides, with the considerable differences between particular enactments (Georgia, Mississippi, Indiana, etc.) seeming to matter relatively little. Finding accurate reporting on what the employment provisions of North Carolina’s HB 2 would do is not easy, as Robin Shea discovered [Employment and Labor Insider]
Sen. Ligon misstates the scope of North Carolina’s new law when he writes that “the new law simply prevents local governments from forcing business owners to adopt” policies on transgender bathroom use. As a libertarian, I would be fine with the new law if that were all it did, but in fact Sen. Ligon is describing only Part III of the bill. Part I of the bill imposes affirmative, uniform new duties of exclusion on North Carolina government entities such as schools, town halls, courthouses, state agencies and the state university system, taking away what had generally been at local discretion. This not only will inflict needless burdens on a small and vulnerable sector of the public, but presumes to micromanage local governments and districts in an area where they had not been shown to be misusing their discretion. Whatever the merits of the rest of the bill, the provisions on state-furnished bathrooms are a good example of how legislation in haste from the top down can create new problems of its own.
Both sides in the culture war are gearing up for a fight in Congress on the proposed First Amendment Defense Act (FADA), which would establish various rights for persons and institutions who object to same-sex marriage. The bill’s text, however, has proved a moving target (earlier here and here). Scott Shackford at Reason gets farther into the details than the mainstream media has done.
Relatedly, Rod Dreher writes at the American Conservative that as a social conservative who resisted gay marriage, but now considers that cause lost, he believes fellow thinkers concerned with religious liberty should look to ally with libertarians. He recommends Shackford’s recent piece in Reason (which quotes me on adoption issues) noting the organized gay movement’s ever wider split from libertarians on issues of central government power, individual liberty and free association.
- “Rightscorp’s Copyright Trolling Phone Script Tells Innocent People They Need To Give Their Computers To Police” [Mike Masnick, TechDirt]
- “‘Affordable housing’ policies have made housing less affordable” [Matt Welch, L.A. Times]
- South Mountain Creamery case: “Lawmakers Call for Return of Cash Seized From Dairy Farmers” [Tony Corvo/Heartland, quotes me, earlier on this structuring forfeiture case]
- Be prepared to explain your social media trail, like by like: “Supreme Court confirmation hearings in 2035” [Orin Kerr]
- From Eugene Volokh, what looks very much like a case against assisted suicide, embedded in a query about whether state Religious Freedom Restoration Acts (RFRAs) might cut a legal path to it [Volokh Conspiracy]
- “The complaint also indicated that the injuries could affect Reid’s ability to secure employment” after Senate exit [Roll Call on Majority Leader’s suit against exercise equipment firm over eye injury]
- Amazon responds to NYT’s “everyone cries at their desk” hatchet job on its workplace culture [Jay Carney, Medium]
The Court begins its new term each year on the first Monday in October:
- Court agrees to tackle RICO extraterritoriality [Alison Frankel/Reuters and earlier background, Washington Legal Foundation; RJR Nabisco v. European Community]
- New term shaping up as even bigger for class action law than expected [Jess Bravin, W$J, Alison Frankel in June] In addition to Tyson Foods v. Bouaphakeo (“trial by formula“) and Spokeo, Inc. v. Robins [uninjured plaintiff standing: Kevin LaCroix, more], cases include DirecTV v. Imburgia [can California court refuse to enforce arbitration clause waiving class actions?; Ronald Mann, WLF]; Campbell-Ewald v. Gomez [is class action mooted when defendant proffers full recoverable amount to named plaintiff? Ronald Mann]; and now, just granted, MHN Government Services, Inc. v. Zaborowski (“Whether California’s arbitration-only severability rule is preempted by the Federal Arbitration Act”). DirecTV is slated for oral argument Tues., Oct. 6, and Campbell-Ewald Wed., Oct. 14;
- Rating John Roberts as Chief Justice: a lot to like if you get past the overdone deference to political branches [Roger Pilon, Cato; a contrary view, Evan Bernick] “The Fatal Conceit of Chief Justice Roberts’s ‘Long Game'” [Josh Blackman]
- Why the Little Sisters of the Poor have a better religious liberty case than Kim Davis [Noah Feldman, Cato amicus and Josh Blackman podcast]
- Did 2012 Congressional enactment on frozen Iran assets and terrorism claimants unconstitutionally direct courts how to decide pending litigation? Court grants cert [Bank Markazi v. Peterson; Lyle Denniston]
- Symposium on teacher-dues First Amendment case Friedrichs v. California Teachers Association with Deborah LaFetra, David Rifkin/Andrew Grossman, and others [SCOTUSblog] “If unions lose agency fees, what next?” [Joanne Jacobs]
- A regulatory taking? PLF seeks certiorari on California Supreme Court decision upholding San Jose “inclusionary zoning” rules [Pacific Legal Foundation, more; Scott Beyer]
- Plus: “Supreme Court Justices Get More Liberal As They Get Older” [Oliver Roeder/Five Thirty-Eight, with charts]