Posts tagged as:

religious liberty

“…without mentioning the Religious Freedom Restoration Act?” You can if you’re Jeffrey Toobin at the New Yorker, busy stroking your readers’ presumed ideological prejudices. [Ann Althouse, and followup on an unsatisfactory correction]

P.S. From Prof. Michael McConnell, a much better article.

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My Cato colleague Ilya Shapiro thinks it went well for the religious objectors. More: Lyle Denniston/SCOTUSBlog, transcript, earlier.

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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.

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Ilya Shapiro sorts out the issues for SCOTUSblog. Earlier here.

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As I explain in a new Cato post, Eugene Volokh has been blogging this week on the proper role of the courts in recognizing or ignoring religious law, whether Christian, Jewish, or Islamic. Oklahoma passed a measure banning by name the use of Islamic sharia law, but the Tenth Circuit struck that law down as discriminating against a particular religion. Meanwhile, lawmakers in other states have introduced legislation on the subject. Earlier.

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The Cato Institute has submitted an amicus brief in the Hobby Lobby and Conestoga cases, which test the extent to which the Religious Freedom Restoration Act (RFRA) and the First Amendment restrain the federal government from requiring employers to participate in employee benefit arrangements that violate the conscience of the individuals who own and run the company. More on the other amicus briefs from Rick Garnett at PrawfsBlawg and commenters. Prof. Bainbridge takes issue with a brief signed by a group of law professors on whether a corporate enterprise can be treated as an alter ego for its owners for purposes of imputing to it their rights (“reverse veil piercing”), and has some further thoughts on the legal principle — sometimes ideologically contested, but seldom in a consistent way — of corporate personhood. Related earlier here.

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Free speech roundup

by Walter Olson on January 15, 2014

  • Setback for climate scientist Michael Mann in defamation suit against critics [Jonathan Adler, Mark Steyn, earlier here and here; update, Mann wins a round] Reporters Committee for Freedom of the Press has taken interest on defendants’ side [Steyn] “Blogger’s Incarceration Raises First Amendment Questions” [NYT on Shuler case in Alabama, on which earlier; more]
  • Religious liberty: “When thought is a crime, no other freedom can long survive.” [Doug Bandow]
  • Nigeria’s new jail-the-gays law is brutally repressive toward speech and association. Oil-rich country gets upwards of $500 million in US foreign aid a year [Reuters, AP and followup, Al-Jazeera]
  • Members of Ramapough tribe in New Jersey sue Hollywood over “Out of the Furnace” depiction [AP]
  • “California’s New Law Shows It’s Not Easy To Regulate Revenge Porn” [Eric Goldman]
  • Catching up on the Ampersand case, where the NLRB got slapped down trying to restrict newspaper owner’s First Amendment rights [Harry G. Hutchison]
  • Video interview with noted civil libertarian Harvey Silverglate [Cato]

January 10 roundup

by Walter Olson on January 10, 2014

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November 11 roundup

by Walter Olson on November 11, 2013

  • Incoming Australian attorney general: we’ll repeal race-speech laws that were used to prosecute columnist Andrew Bolt [Sydney Morning Herald, Melbourne Herald-Sun, earlier]
  • Texas sues EEOC on its criminal background check policy [Employee Screen]
  • After Eric Turkewitz criticizes $85M announced demand in Red Bull suit, comments section turns lively [NYPIAB]
  • If only Gotham’s official tourism agency acted like a tourism agency [Coyote on NYC's official war against AirBnB; Ilya Shapiro, Cato; earlier here and here, etc.]
  • “Lawmaker wants Georgia bicyclists to buy license plates” [WSB]
  • Religious liberty implications of European moves to ban infant circumcision [Eugene Kontorovich]
  • Video on CPSC’s quest for personal liability against agency-mocking Craig Zucker of Buckyballs fame [Reason TV, earlier]

Slate really embarrassed itself the other day with a column by Emily Bazelon and Dahlia Lithwick flatly misreporting the holding of a Janice Rogers Brown opinion on religious liberty and Obamacare. I wrote this piece in response, which just appeared at PowerLine.

More: West Coast politics and law blogger Patterico likes my piece. Ed Whelan of the Ethics and Public Policy Center writes on Twitter to say that a post he wrote on Saturday “seems to be what triggered [the] weak correction.”

“Exhibiting a complete lack of common sense, the city’s Human Rights Commission is determined to take seven Hasidic-owned stores in Brooklyn to trial for the high crime of requiring modest dress of their customers.” Signs the HRC deems “discriminatory” include “No Shorts, No Barefoot, No Sleeveless, No Low Cut Necklines Allowed.” [editorial, New York Post] But shops catering to a secular clientele routinely post demands that their customers button up: no shirt/socks/shoes, no service, business attire only, and so forth. “Which means the city is targeting the Hasidic stores because of religion!” [Ann Althouse]

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I’ve got a letter in the WSJ:

In claiming that “Gay Marriage Collides With Religious Liberty” (Houses of Worship, Sept. 20), Mollie Ziegler Hemingway conflates the effects of antidiscrimination law with the effects of recognizing same-sex marriage. Many of the conscience cases she cites involving private businesses arose in jurisdictions that don’t recognize gay marriage, and most would reach the same legal result so long as local antidiscrimination laws remain in place, whether or not the law on marriage has changed….

I go on to note that anti-discrimination law for years now has been obliging some small businesspeople to enter business dealings inconsistent with their private conscience, as when bed and breakfasts are obliged to accommodate unmarried cohabitants, or owners of print or video-duplication shops are obliged to duplicate literature promoting causes they abhor, whether religious or secular. So far as I can tell, we libertarians are the only group that has consistently raised alarms over the years about this coercive effect; most social conservatives have tended to ignore the area until quite recently, and of course the typical position of modern progressives is to see few if any real issues of concern here. Mollie Ziegler Hemingway, I should note, says I wrongly assumed that she writes from outside the libertarian tradition; Twitter exchange on that here.

Some recent links on these controversies: Elane Photography (New Mexico) and followup; Oregon cake bakers; Arlington, Va. video-duplication shop, first, second, and third posts. I wrote about the relations between religious liberty, libertarianism, and social conservatism here (more, and yet more on Twitter with columnist Tim Carney). More: Bainbridge, Stephen Miller/Independent Gay Forum.

August 29 roundup

by Walter Olson on August 29, 2013

Free speech roundup

by Walter Olson on July 2, 2013

  • Paleo-diet blogger wins a round in battle with North Carolina occupational licensing [IJ via Alkon, earlier here, here, etc.]
  • If you live in Connecticut or Montana, you have a U.S. Senator who’d go this far to trample rights [Volokh on Tester-Murphy constitutional amendment, earlier] Related: “In Attack On Commercial Speech, Law Professor Sadly Supports Selective Rights” [Richard Samp, WLF, on Columbia's Tim Wu]
  • Lawyers sue publishers of medical literature for failing to warn about drug side effects [ABA Journal, Drug and Device Law]
  • “Anti-Bullying Bill Could Jail People Who Criticize Politicians” [Ted Balaker, Reason]
  • Regarding the L.A. Times: “So people are really suggesting a city council interfere to make sure a newspaper’s owners have the proper political views. Flabbergasting.” [@radleybalko]
  • “Judge: Rocker must pay Herald $132G in court costs for dismissed defamation suit” [Boston Herald] Second Circuit recognizes scientific-discussion defense to defamation claims [Science World Report]
  • “Does Freedom of Speech Conflict with Freedom of Religion?” [Jacob Mchangama video] “Turkish Blogger Sentenced to 13 Months in Prison for Criticizing Mohammed” [Volokh] So much repression: State Dept. International Religious Freedom Report for 2012 [executive summary]

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The University of Minnesota law professor and Volokh Conspiracy contributor sorts out claims that the pending bill in his state threatens religious liberty. [St. Paul Pioneer Press]

The U.S. Commission on Civil Rights has been soliciting testimony and public comments on the issue, and is holding a hearing on March 22, Friday of next week. [Peter Kirsanow; Marc DeGirolami, Mirror of Justice; Ed Whelan, Ethics and Public Policy Center]

Steve Chapman puts them in perspective, and commenters at the conservative Town Hall site freak out. Then a donnybrook breaks out at National Review, with Matthew Schmitz, Ramesh Ponnuru and Schmitz again advancing the view that religious liberty means liberty for everyone, even Muslims who might wish (say) to enter contracts for a religiously grounded non-interest-yielding savings account.

Speaking of religious liberty, my discussion with Tim Carney and David Boaz last week about whether libertarians are somehow deficient on the topic continues to yield interesting reactions, including one from Rick Esenberg.

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