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same-sex marriage

A more balanced treatment than some we’ve seen in the press, including a video interview with Colorado baker Jack Phillips. [New York Times; earlier on forcing small business owners to service weddings against their beliefs here and here].

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Idaho Hitching Post case

by Walter Olson on October 22, 2014

I was preparing a post on the case from Idaho in which husband and wife Donald and Evelyn Knapp have pre-emptively sued (complaint, motion for TRO) to prevent the application of the city of Coeur d’Alene’s public accommodation law from being used to require their wedding chapel business, the Hitching Post, to handle same-sex weddings. In the mean time Andrew Sullivan has done a post pulling together most of what I planned to say, so go read that instead.

Sullivan quotes my observation on Facebook:

I will note that I have learned through hard experience not to run with stories from ADF (Alliance Defending Freedom) or Todd Starnes without seeking additional corroboration. As a libertarian, I oppose subjecting this family business to any legal compulsion whatsoever, but it’s also important (as in the Dallas pastors case) to get the facts straight before feeding a panic.

While I hope the Knapps succeed in establishing their exemption from this law, I am still shaking my head at the ADF’s framing efforts, which via Starnes set off a predictable panic about dangers to religious liberty (see also, last week, on the Houston pastors subpoena). In this instance, those efforts amount to something very akin to hiding the ball, including (as cited by Sullivan) the quiet legal revamping of the business onto a religious basis in recent weeks and the silent removal of extensive language on its website that until earlier this month had promoted the chapel as a venue for civil, non-religious wedding ceremonies.

Now, the Knapps are free (or should be, in my view) to change their establishment’s business plan overnight to one that welcomes only ceremonies consistent with Foursquare Evangelical beliefs. But shouldn’t their lawyers be upfront that this is what’s going on? Especially since even sophisticated commentators, let alone casual readers, are construing the city of Coeur d’Alene’s legal position by reference to what its lawyer said back in May, when the Knapps were running the business the old way. (Back then, as Doug Mataconis notes, coverage included the following: “Knapp said he’s okay with other ministers performing marriages at their facilities but it is not something he will do.” — a position that appears to have changed, again without acknowledgment.)

Let’s be blunt. ADF, which was involved in helping the Knapps revamp their enterprise onto a religious basis, is by the omissions in its narrative encouraging alarmed sympathizers to misread the situation.

Could the city of Coeur d’Alene force the Knapps to provide ministerial officiation of same-sex weddings? As Eugene Volokh explains, in a post based on the initial reports, the clear answer is no, since such compulsion would be an unconstitutional forcing of speech and “would also violate Idaho’s Religious Freedom Restoration Act.”

Besides those two distinct layers of legal protection, they are likely to benefit from a third, noted in this May article in the Spokane Statesman-Review: “religious entities are exempt from the Coeur d’Alene ordinance” and “pastors in the city are not obligated to perform same-sex weddings.” (Todd Starnes links to the Spokane article, but makes no reference to these bits.)

Possibly — the statements of municipal lawyer Warren Wilson in May are ambiguous — the city saw the then-secular Hitching Post as obliged not only to provide the equivalent of a hall rental to same-sex applicants, and sell them silk flowers and other incidentals, but also connect them with an outside officiant sympathetic to their union to pronounce the ceremony. It is by no means clear that the city would apply the same requirements to the Knapps’ newly revamped and far more explicitly religious Hitching Post. It is even more of a stretch to imply, as Starnes does, that the city is on the verge of “arresting” the Knapps.

Even absent any obligation to officiate, it seems to me that a family business in this situation has at least as sympathetic a case as the cake bakers, wedding photographers, invitation engravers, and hall providers who sought exemptions in previous episodes. But really, isn’t our libertarian case strong enough that it can stand on an accurate description of what’s actually going on?

Update: Via Eugene Volokh, Coeur d’Alene’s attorney has now sent a letter making clear the city’s position that even the newly reorganized Hitching Post is subject to the law because the law’s religious exemption covers by its terms “nonprofit” religious corporations, which theirs is not. Volokh argues, I think plausibly, that this position will fail in court if applied to compel the provision of ceremonies because both the constitutional right against forced speech and the state Religious Freedom Restoration Act extend in their application beyond nonprofits. Indeed, the city lawyer’s own letter cites a provision, section 9.56.040, in the city’s anti-discrimination ordinance, stating that the ordinance “shall be construed and applied in a manner consistent with first amendment jurisprudence regarding the freedom of speech and exercise of religion”. This provision would appear not merely to permit, but to require, the city to back off enforcement efforts that conflict with speech and religious freedoms, whether exercised in a non-profit or for-profit setting. The letter — which in its reference to “services” draws no distinction between functions like hall and equipment rental, and expressive ceremonial services — would thus appear to put the city on a collision course with the speech and religious freedoms of the Knapps.

One day later: City says it’s considered the matter further and realizes now that nonprofit status is not required to qualify for exemption. [Boise State Public Radio via Shackford] Quoting BSPR: “The group that helped create Coeur d’Alene’s anti-discrimination ordinance says the Hitching Post shouldn’t have to perform same-sex marriages. The Kootenai County Task Force on Human Relations says in a letter to the mayor and city council that the Knapps fall under the religious exemption in the law.” More coverage: KREM, Boise Weekly, Religion News Service.

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Supreme Court roundup

by Walter Olson on October 14, 2014

  • Sorry, National Review, but the marriage rulings are really nothing at all like Dred Scott [my new piece at The Daily Beast] Or Roe v. Wade either [Dale Carpenter, Ilya Shapiro, Charles Lane]
  • Ninth Circuit won’t get the message about not expropriating raisin farmers and it’s time for the Court to remind it again [also Ilya Shapiro, earlier]
  • Private businesses, even those that are quasi-public like Amtrak, shouldn’t be delegated the right to regulate their competitors [Ilya Shapiro yet a third time]
  • “Supreme Court takes case on duration of traffic stops” [Orin Kerr, Rodriguez v. United States]
  • Housing disparate impact theory, dodged by administration last time around, returns to Court [Bloomberg, Daniel Fisher; Texas Department of Housing and Community Affairs v. The Inclusive Communities Project; earlier]
  • Noteworthy feature of just-argued wage-and-hour case is that Obama Department of Labor is taking the employer side [Denniston, SCOTUSBlog; Integrity Staffing Solutions v. Busk]
  • “Supreme Court to hear case on right of Maryland to tax out-of-state income” [Ashley Westerman, Capital News Service]
  • Mark your calendar if in D.C.: I’ll be moderating a Nov. 3 talk at Cato by Damon Root about his new book Overruled: The Long War for Control of the U.S. Supreme Court, with commentary from Roger Pilon and Jeffrey Rosen [Reason]

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Prof. Douglas Laycock of the University of Virginia is among the nation’s leading law-and-religion scholars. Many of his positions on church-state matters would normally be taken for quite liberal; for example, he argued the recent Supreme Court case of Town of Greece v. Galloway on behalf of those objecting to sectarian prayer of any sort before town council meetings. At the same time, as noted on an earlier occasion, Prof. Laycock happens to favor a broad application of religious-accommodation laws such as the federal Religious Freedom Restoration Act of 1993. This has led him to support proposals for state RFRAs with broad definitions, like the one recently vetoed in Arizona, and also to file an amicus brief on behalf of employer Hobby Lobby in Sebelius v. Hobby Lobby.

Now comes the price to pay [Charlottesville Daily Progress]:

Laycock, who is married to UVa President Teresa A. Sullivan, is the subject of a Freedom of Information Act records request by two UVa student activists — Gregory Lewis and Stephanie Montenegro. In an open letter to the professor, Lewis and Montenegro said that while they respect Laycock’s right to academic freedom, they believe his writings supporting controversial religious freedom laws are holding back progressive causes such as access to contraceptives and gay marriage.

An outside group has been promoting the action [C-ville.com]:

“His work, whether he understands it or realizes it or not, is being used by folks who want to institute discrimination into law,” said Heather Cronk, co-director of Berkeley, California-based LGBT activist group GetEQUAL. …

Through the activist group Virginia Student Power Network, GetEQUAL found two UVA students willing to take up the cause of calling out Laycock: rising fourth-year Greg Lewis and now-alum Stephanie Montenegro. Last week, the pair sent an open letter to Laycock asking him to consider the “real-world consequences that [his] work is having.” They also submitted a Freedom of Information Act request seeking e-mails between Laycock and various right-wing and religious liberty groups. … Meanwhile, GetEQUAL has launched a national e-mail campaign calling out Laycock for his role in shoring up the legal arguments of those who support “religious bigotry.”

If the issue of FOIA-ing U.Va. professors rings a bell, it’s because it’s happened at least twice before. Around 2009 Greenpeace, the environmental activist group, FOIAed the university demanding correspondence and documents relating to former professor Patrick Michaels (now at Cato), who had espoused skeptical views on global warming. Then allies of former Virginia attorney general Ken Cuccinelli filed a FOIA request seeking similar documents for Michael Mann, a prominent advocate of global warming theories. [C-ville.com, WaPo]

No one could doubt that Laycock’s views on religious accommodation are part of a set of intellectually derived convictions that run through decades of his work. (In addition to opposing such forms of church-state entanglement as officially sponsored prayer, he supports the right of gays to marry.) It’s simply a matter of trying to arm-twist a tenured, well-recognized scholar who takes a position that the Forces of Unanimity consider wrong.

Of course, the student activists deny that anything like that is on their minds:

Lewis said they’re not trying to smear Laycock, and they’re not trying to undermine academic freedom. They just want a dialogue, he said.

Prof. Bainbridge isn’t buying it:

[B.S.] You don’t start a dialogue with FOIA requests. ….It’s time to start fighting back.

It might also be time for legislators to clarify state open-records laws to determine under what circumstances they can be used to go after academics, and consider altering them, where appropriate, to provide for financial or other sanctions when they are misused.

Note also: conservative-leaning groups have launched a series of FOIA requests seeking records of professors at state universities in North Carolina, Virginia, Wisconsin, Michigan, and Texas. The left-leaning Institute for Southern Studies has a critical account here. (& welcome readers from Steve Miller, IGF; Paul Caron, TaxProf; Jonathan Adler, Volokh; Ramesh Ponnuru/NRO “Corner”; Prof. Bainbridge; Will Creeley/FIRE; Dahlia Lithwick, Slate; Megan McArdle, Bloomberg View)

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April 30 roundup

by Walter Olson on April 30, 2014

  • “7 Reasons U.S. Infrastructure Projects Cost Way More Than They Should” [Scott Beyer, Atlantic Cities]
  • Gov. Jerry Brown’s appointments could reshape California Supreme Court [Mark Pulliam, City Journal]
  • Critics say hiring of outside counsel in Pennsylvania government is an insider’s game [WHTM]
  • Could “Bitcoin for contracts” replace legal drafters’ expertise? [Wired with futurist Karl Schroeder]
  • “Getting state out of marriage” makes for neat slogan but results would be messy in practice [Eugene Volokh]
  • Lobbying by auto body shops keeps Rhode Island car repair costs high [Providence Journal, PCIAA press release and report in PDF]
  • “Bipartisan, publicity-hungry members of Congress want the FTC to investigate Photoshopping in ads” [Virginia Postrel on this WaPo report; Daily Beast; earlier here, here, etc.]

Laws requiring campaign donation disclosure can reinforce conformist pressures, notes my colleague Ilya Shapiro on the episode of the tech CEO who stepped down after an outcry over his donation to California’s Prop 8 campaign a few years ago. [Forbes] On the wider significance of the episode (not mostly one of law or regulation, since the government did not and in my view should not get involved either way), I recommend Conor Friedersdorf’s careful analysis in the Atlantic.

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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.

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Caleb Brown interviews me for this new Cato podcast on a knotty question: when should a state attorney general decline to argue in court in defense of a law he thinks unconstitutional? On the one hand, the legal profession’s norms strongly favor giving every client and cause its day in court, and practical dysfunction might result were cases routinely handed over to others to defend or dropped entirely. On the other hand, attorneys general like other officials take an oath of office to the constitution, which calls in doubt whether they should (or even may) use their skills on behalf of unconstitutional measures. Complicating matters: how should unconstitutionality be assessed, by way of the AG’s own judgment, by way of predicting how the highest relevant court would rule, or by some other method? What kind of difference should it make whether the assessment appears certain, very probable, or more ambiguous than that?

In recent weeks about a half-dozen Democratic AGs around the country have declined to defend their states’ bans on same-sex marriage, on the grounds that they are inconsistent with the Supreme Court’s Windsor decision of last year, while other AGs both Republican and Democratic have argued in defense of those laws. (Today, Kentucky’s attorney general announced that he will not appeal a federal court ruling requiring the state to recognize out-of-state marriages, although the state’s governor is stepping in to do so.) Finding either liberals or conservatives who have preserved entirely consistent positions on the issue, though, is not always easy. Former attorney general Ken Cuccinelli, a strong conservative, declined to defend a state education reform law last year, while in 2011 Wisconsin Gov. Scott Walker and Attorney General J.B. Van Hollen declined to defend a state domestic partnership registry they deemed unconstitutional. In a case like the latter it was liberals who tended to criticize the refusal to defend a law, and conservatives who applauded — patterns that to some extent have been reversed this time around.

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Maryland roundup

by Walter Olson on January 18, 2014

Legislature’s back in session and no citizen’s liberties are safe:

  • SB 65 (Benson) would require gas station dealers to maintain operational video cameras and retain footage for 45 days [Maryland Legislative Watch]
  • HB 20 (GOP Del. Cluster) would require all public schools to hire cops [Gazette, MLW]
  • SB 28 (Frosh) would lower burden of proof for final domestic protective orders from “clear and convincing” to “preponderance of the evidence” [MLW, ABA] One problem with that is that orders already tag family members as presumed abusers in the absence of real evidence, are routinely used as a “tactical leverage device” in divorces, and trip up unwary targets with serious criminal penalties for trying to do things like see their kids;
  • Driving while suspected of gun ownership: what unarmed Florida motorist went through at hands of Maryland law enforcement [Tampa Bay Online] 2014 session in Annapolis can hardly be worse for gun rights than 2013, so it stands to reason it’ll be better [Hendershot's]
  • State begins very aggressive experiment in hospital cost controls: “I am glad there is an experiment, but I’m also glad I live in Virginia.” [Tyler Cowen]
  • Scenes from inside the failed Maryland Obamacare exchange [Baltimore Sun] Lt. Gov.: now’s not the time to audit or investigate the failed launch because that’d just distract us from it [WBAL]
  • Corridors run pink as Montgomery County school cafeterias battle scourge of strawberry milk [Brian Griffiths, Baltimore Sun]
  • Plus: A left-right alliance on surveillance and privacy in the legislature [my new Cato at Liberty post]
  • How did Maryland same-sex marriage advocates win last year against seemingly long odds? [Stephen Richer, Purple Elephant Republicans citing Carrie Evans, Cardozo JLG; thanks to @ToddEberly as well as Carrie and Stephen for kind words]

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December 3 roundup

by Walter Olson on December 3, 2013

  • The law blog that almost brought down ObamaCare [Trevor Burrus, Cato] “In Government, Nothing Succeeds Like Failure,” public policies being hard to adjust when they go astray [Peter Schuck, HuffPo]
  • Sexual harassment claim: “Attorneys awarded more than 600 times damages in Calif. case” [Legal NewsLine]
  • KlearGear, of non-disparagement fame, reaps the online whirlwind [Popehat, Public Citizen, Volokh, earlier]
  • “What if American Exceptionalism, properly understood, really boils down to associational liberty?” [Richard Reinsch, Liberty Law] Do religious-liberty carve-outs in same-sex marriage laws go too far, not far enough, or neither? [Dale Carpenter et al. vs. Richard Garnett et al.]
  • What jury didn’t hear in qui tam award against pipemaker JM Eagle [Daniel Fisher, more]
  • Majority of appointed commissioners on Consumer Product Safety Commission is is no hurry to reduce inordinate CPSIA testing burdens, per retiring commissioner Nancy Nord (more);
  • Woman who claims to own sun says she prevailed in lawsuit brought by man who claims to own universe [Lowering the Bar]

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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).

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Interviewed on ENDA

by Walter Olson on November 5, 2013

Caleb Brown interviews me for Cato on the politics and policy of employment discrimination laws. I’ve also done interviews with Voice of America (updated: article with video here, at 1:45; higher-def video here), St. Louis’s KMOX, Mark Reardon show and Bay Area public radio station KQED with Michael Krasny (includes audio link), where I had a chance to promote my much-missed friend Joan Kennedy Taylor’s excellent Cato book on workplace harassment. My Cato post on the subject of Friday is here and reactions here. More press coverage: Naureen Khan, Al Jazeera America (symbolism a poor reason for or against bill); Nick O’Malley, Sydney Morning Herald (my views contrasted with Andrew Sullivan’s), Robin Shea, Employment and Labor Insider, Deseret News (opinion roundup including USA Today’s), Tim Carney/Washington Examiner.

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Why I’d vote against ENDA

by Walter Olson on November 4, 2013

[bumped from original Friday posting due to interest in the issue and many new links] I’ve got a new post on the Employment Non-Discrimination Act (ENDA) just up at Cato. More: Stephen Miller; similar takes on the issue, Stephen Richer, Purple Elephant and Daily Caller, Libertarian Jew, Coyote, David Bernstein.

More, all citing my post: Andrew Sullivan, who is now tepidly in favor of the bill; Peter Weber, The Week; Scott Shackford, Reason; Paul Mirengoff, PowerLine; Doug Mataconis, Outside the Beltway; Ray Hennessey, Entrepreneur and also at Reuters; Hans Bader, CEI; Jordan Weissman, The Atlantic, Jon Hyman/Ohio Employment Law, and USA Today editorial (contra).

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I don’t think everyone who supports same-sex marriage is logically obliged to support polygamy, and say so in this post taking issue with columnist Mona Charen. She responds here.

P.S. More thoughts from Eli Lehrer at Huffington Post (“Gay marriage is increasingly accepted precisely because its results, to date, have been good for society. Polyamory on a large scale would have negative short-term results and that’s a good reason to think it’s just not going to happen.”).

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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.

Latest liberty cake wreck

by Walter Olson on September 5, 2013

In Gresham, Oregon, it’s anti-discrimination law 1, free association 0 as a family business that cited religious beliefs in declining to make a wedding cake for a lesbian couple, and was hit by an enforcement action as a result, shutters its retail shop in favor of baking from home. Oregon does not recognize same-sex marriage, which (as in the parallel New Mexico wedding photographer case) makes clear that the intrusion on individual liberty here arises from anti-discrimination law as applied to so-called public accommodations, not from marriage law. [Shackford, Reason] Related: “Religious liberty depends on right-of-center gay marriage advocates” [Stephen Richer, Daily Caller]

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  • Litigious anti-feminist loses case alleging that Manhattan club’s expensive bottle service for old men, free drinks for young women violate bias law [NY Mag, NYDN]
  • “Hospital cannot ban all service animals from psych ward, federal judge rules” [ABA Journal] “New Yorkers use bogus ‘therapy dog’ tags to take Fido everywhere” [NY Post via Althouse]
  • Canada: foes seek to prevent opening of evangelical law school in B.C. [CBC, Jonathan Kay/National Post, Globe and Mail editorial, TaxProf]
  • Related: broad religious exemptions in anti-bias law make good complement to same-sex marriage [Ilya Shapiro/Cato, my take] Gay couples must also live and let live, or else liberty is in for some cake wrecks [Bart Hinkle, Richmond Times-Dispatch]
  • Hiring based on IQ testing: widely regarded as legally suspect, but mostly tolerated in practice? [Bryan Caplan]
  • “‘Borgata Babes’ lose weight bias suit; judge says casino policy was legal” [ABA Journal, earlier]
  • 2009 expansion of federal hate-crimes law headed for a court challenge? [Josh Gerstein, Politico]

I talk with Caleb Brown about the legal implications of the Windsor and Perry decisions in this new Cato video, which also features an appearance by Ilya Shapiro.

P.S. A bit more detail in this Cato blog post (& SCOTUSblog).