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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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George Leef reviews a new book by John Compton, political scientist at Chapman University, on how evangelical anti-vice campaigns against gambling, liquor and other social ills helped undermine the Constitution’s curbs on centralized power, paving the way for later Progressive gains.

The tension between moral reformers who insisted on a virtually unlimited view of the “police powers” of government (i.e., to regulate in ways intended to protect the health and morals of the citizenry) and the Constitution’s framers, who feared the results of allowing factions to use government power for their ends, was crucial in shaping constitutional law during the 19th and early 20th centuries.

The book shows that by the time the New Deal’s aggressive expansions of federal power came before the Supreme Court, its earlier decisions in favor of approving legislation against liquor and lotteries had so undermined the defenses of property rights, contract, and federalism that it was nearly inevitable that the Court would cave in.

For example, when the Court decided the 1934 case of Blaisdell v. Savings and Loan, gutting the former understanding of the impairment of contracts clause, Chief Justice Charles Evans Hughes cited an earlier decision on interstate shipment of lottery tickets which had acquiesced in a new extension of the police power, on the grounds that a previously sacrosanct constitutional barrier could be “qualified” when a state needed to “safeguard the interests of its people.” [Forbes]

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  • Sad and bad: “House Republicans vote to block Obama’s new pardon attorneys” [MSNBC, Jacob Sullum, my Cato take]
  • Ready for sorghum-patch unrest? More than 100 U.S. Department of Agriculture agents are armed with submachine guns [Matt Welch]
  • “Cop who punched Occupy Wall Street protester gets tax-free disability pension” [New York Daily News, video of punch]
  • “Officials could identify just one [Bronx] prosecutor since 1975 … disciplined in any respect for misbehavior while prosecuting a criminal case.” [City Limits via Radley Balko]
  • Georgia drug raid: flash-bang grenade thrown into crib badly burning toddler [Tim Lynch, PoliceMisconduct.net "Worst of the Month"]
  • New book by Sidney Powell critical of USDOJ explores Ted Stevens, Enron prosecutions, has foreword by Judge Alex Kozinski ["Licensed to Lie": Craig Malisow/Houston Press, Legal Ethics Forum, Amazon]
  • Two times over the legal limit, hmm. Would it help to flash my badge? [Prosecutorial Accountability on state bar discipline against San Francisco deputy d.a.]

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I will not say I told you so for fear of coming off as ungracious, but Coyote has no such compunction:

I could find about a thousand far more sympathetic examples of folks screwed over by government land use regulations — e.g. people whose puddle in the backyard is suddenly a wetlands that they can’t build on. But for some reason Conservatives all rushed to pile on this one example. Stupid.

Only a thousand?

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Free speech roundup

by Walter Olson on July 31, 2013

  • “Bryon Farmer of the Blackfeet Tribe Jailed For Talking About Corruption In Tribal Government” [Ken at Popehat] “Popehat Signal: Vengeful AIDS Denialist Sues Critic In Texas” [same]
  • Persons with federal government contracts can’t give to federal candidates or parties. Too broad? [Ilya Shapiro and Trevor Burrus, Cato]
  • “Together at last! ‘Some US conservatives laud Russia’s anti-gay bill.'” [@jon_rauch on Associated Press re: "propaganda" measure]
  • More on Second Circuit decision ruling scientific conclusions akin to protected opinion for defamation purposes [Digital Media Law Project, earlier]
  • San Antonio bars appointment to its city boards and commissions of anyone who has ever said anything demonstrating bias “against any person, group or organization on the basis of race” or various other protected categories [Eugene Volokh]
  • Cincinnati Bengals cheerleader wins defamation suit holding gossip site operator liable for user comments [Sporting News] Michigan: “Ionia newspaper editor files defamation suit against critics” [MLive, Popehat with a critical view, update at Popehat following dismissal]
  • “Hate speech” at issue: “Twitter releases users’ identities to French authorities after tough legal battles.” [JOLT]

Free speech roundup

by Walter Olson on September 20, 2012

  • Already firebombed once: “Satirical French Magazine Publishes Caricatures Of Mohammed, White House Rebukes.” [Mediaite] More calls for punishing makers of anti-Muslim YouTube video for supposed incitement [Ann Althouse on Sarah Chayes, earlier here and here; also, the late Christopher Hitchens on "fire in a crowded theater" arguments] “The people who instigate these protests seek a very particular goal: an extension of Egyptian and Pakistani style blasphemy laws into the West.” [David Frum]
  • “$60,000 Verdict for Blogging the Truth About A Person Intending to Get Him Fired – Reversed” [Volokh]
  • Judge closes probe of opinion-maker influence in Google-Oracle battle [The Recorder, earlier]
  • Weight-loss device promoter files, then drops suit against Public Citizen, consumerist website Fair Warning [Paul Alan Levy, Fair Warning]
  • “How Ag Gag Laws Suppress Free Speech and the Marketplace of Ideas” [Baylen Linnekin, earlier here, etc.]
  • Big government Republicans in charge: “GOP Platform Changed To Now Target All Forms Of Pornography” [Andrew Kirell, Mediaite; Volokh]
  • Missouri activist starts website criticizing local cops and soon the department’s halls display what looks very much like a “Wanted” poster of him [Eapen Thampy, Agitator]

The American Family Association’s zany yet high-profile Bryan Fischer is in the news for calling for an “Underground Railroad” by which his fellow believers would “rescue” kids from gay parents. In my new Huffington Post piece, just up, I trace two main threads in his argument — that gay parents are a menace to their kids, and that extralegal steps are called for to put “God’s law over man’s” – and show how the same messages have been emanating lately from some rather more respectable social-conservative quarters, in Princeton, N.J. and elsewhere. The controversy develops in part from the Miller-Jenkins custody and kidnapping case, long a topic of coverage in this space; in the latest development, Mennonite clergyman Kenneth Miller (applauded by Fischer) has just gone on trial for allegedly abetting the spiriting of Isabella Miller-Jenkins (no relation), now 10, out of the country in defiance of court orders.

Fischer now says he wasn’t suggesting that kids of same-sex couples be abducted from their beds by Christians unrelated to those children, but he definitely is encouraging believers to use extralegal force in cases that pit one of theirs against a gay parent in a custody dispute. He hints broadly that the next test case after Miller-Jenkins will be that of a divorced woman he describes who is losing custody to her gay ex-husband, and who just might disappear with the child into the “Underground Railroad” he promotes. Meanwhile, the Liberty University School of Law in Lynchburg, Va., whose faculty has multiple connections with Lisa Miller’s side of the Miller-Jenkins litigation, stirred criticism when related civil-disobedience precepts reportedly emerged as part of the curriculum in a class.

It might be added that this, like so many unsettling developments on the Right, is not without its parallels on the Left. Since the 1980s and the famous Elizabeth Morgan case, some feminists have operated a so-called Underground Railroad to enable mothers to defy court orders and abduct their kids away from fathers with shared custody or visitation orders. Usually some allegation is made of abuse, but the tactic has been used and applauded even where a judge has considered the abuse allegations and declined to accept them. (Law prof Nancy Polikoff discusses her mixed feelings about the Miller-Jenkins case here).

Reacting to the potential for lawlessness in this realm, Congress has passed at least two statutes of relevance: the International Child Abduction Remedies Act, signed by President Ronald Reagan in 1988, and the International Parental Kidnapping Crime Act, signed by President Bill Clinton in 1993.

Update Aug. 15: Jury convicts Kenneth Miller.

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It’s almost entirely off-topic for this site, but some readers may be interested in my new piece for Huffington Post (my first in that venue) poking some additional holes in an already much-criticized study by Mark Regnerus finding bad life outcomes among young adults who report that a parent had a same-sex relationship. Sample:

The Witherspoon Institute, discussing the study’s findings, adds another clue: “48% of the respondents with a GF [gay father], and 43% of the respondents with an LM [lesbian mother] indicated that they were either black or Hispanic.” Those numbers sound awfully high, and they are. They far exceed the roughly 30-percent black-plus-Hispanic share of the U.S. population. Why would young adults with minority backgrounds and a high rate of economic distress report having far more than their share of gay parents? Are they somehow more likely to grow up in homes with actual gay parents? Or are their parents somehow being overclassified as gay?

Putting together that with other anomalies in the study data, I conclude that the study does not come even close to measuring what it claims to be measuring. See also: Amy Davidson, New Yorker, among a whole mini-literature of responses.

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April 16 roundup

by Walter Olson on April 16, 2012

  • Although I’m known as a foe of everything John Edwards stands for, I hope he beats this campaign finance rap [Atlantic Wire]
  • Michael Bloomberg launches demagogic new campaign against Stand Your Ground laws, calling to mind the recent critique of the NYC mayor’s paternalist dark side by Conor Friedersdorf in the Atlantic;
  • Jerry Brown frees grandmother dubiously jailed in shaken-baby death [Slate, earlier]
  • As Scruggs (Dickey not Earl) still pursues vindication, Alan Lange looks back on Mississippi scandals [YallPolitics]
  • Deservedly favorable profile of Fifth Circuit judge Jerry Smith [NOLA]
  • In which I tell off Bill Donohue’s Catholic League for its double insult last week to gays and to adoptive parents [IGF]
  • “The Ninth Circuit was, believe it or not, correct” [Ilya Shapiro and Trevor Burrus, Cato, on administrative law case arising from NLRB rules change on drug rep overtime]

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June 20 roundup

by Walter Olson on June 20, 2011

Politics edition:

  • Mother ship? White House staffers depart for Harvard Law School [Politico]
  • New York: “Lawmakers consider lawyer-friendly med-mal bills,” even as many key legislators moonlight at personal injury firms [Reuters]
  • David Brooks on explosive political potential of Fannie Mae scandal [NYTimes] After Kentucky bar panel’s vote to disbar Chesley, Ohio AG pulls him off Fannie Mae suit [Adler, Frank, Beth Musgrave/Lexington Herald-Leader]
  • Alabama legislature removes Jim Crow language from state constitution — but black lawmakers oppose the idea [Constitutional Daily]
  • AAJ lobbyist Andy Cochran works GOP turf, has convinced trial lawyers to sponsor Christian radio program [Mokhiber, "Seventh Amendment Advocate"]
  • Centers for Disease Control funnels grants to allies for political advocacy on favored public-health causes [Jeff Stier, Daily Caller]
  • Must have mistaken her for a jury: “John Edwards Sought Millions From Heiress” [ABC News] “One thing [worse than Edwards's] conduct is the government’s effort to put him in jail for it.” [Steve Chapman]

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Birthers’ dubious boast

by Walter Olson on September 1, 2009

Some believe the Obama camp has spent a fortune in lawyers’ fees responding to far-fetched “birther” lawsuits, but John Bringardner at Legal Blog Watch is skeptical about that claim. Speaking of which, don’t you wish more conservatives would keep their distance from the site WorldNetDaily? [Jon Henke]

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In 2007, the Texas Supreme Court unanimously decided Borg-Warner v. Flores, holding that a defendant in an asbestos case was not liable unless its product was a “substantial factor” in causing injury.

But there are now bills in the Texas House and Senate, SB 1123 (recently reported out of Senate committee) and HB 1811, that seek to undo this by defining “substantial factor” to merely mean that a product “contributed to the [plaintiff’s] cumulative exposure”—whether or not other defendants’ products were far more responsible for a plaintiff’s injury. The effect of this rollback would be to return Texas to the role of asbestos magnet, since it could conceivably create indiscriminate liability for hundreds of innocent businesses in any given case. The effect will be very similar to the infamous Lipke rule in Madison County, Illinois that extracted billions of dollars from the innocent this decade.

Texans for Lawsuit Reform has a fact-sheet, as does the Texas Civil Justice League.

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Watch out, motel owners

by Walter Olson on March 10, 2009

Social conservative Maggie Gallagher, with whose views we have been known to differ, suggests a tort of “facilitating” adultery that would apply to businesses that “that intentionally and explicitly attempt to profit from acts of adultery”. [NRO "Corner", first, second posts]

P.S. Eugene Volokh now has a more lengthy and serious treatment: “you can love marriage and hate adultery without thinking that more tort liability will make things better.”

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“The Bush administration, as expected, announced new protections on Thursday for health care providers who oppose abortion and other medical procedures on religious or moral grounds.” (NYT via GruntDoc). I briefly criticized this bad idea in a post last week at Secular Right, and there are hopes that the incoming Obama administration will rescind it. P.S. Longer post now up over there.

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Nativity-scene litigation

by Walter Olson on December 13, 2008

[walks up to blackboard]

I will NOT take at face value anything Bill O’Reilly says regarding the supposed “War on Christmas”.

[repeats 99x]

(my post at Secular Right just now; earlier).

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Occasionally a reader will ask why I’m averse to linking to the conservative publication WorldNetDaily. Reason #17,945: the birth certificate/citizenship trutherism by which WND promotes litigation aimed at keeping Barack Obama from being inaugurated President. (David Weigel, Slate, Dec. 4).

Update: Supreme Court turns down first of such cases (Doug Mataconis, Below the Beltway, Dec. 8).

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SecularRight.org

by Walter Olson on November 26, 2008

I’ve been taking a hand in a new blog project called Secular Right, which describes itself as follows:

We believe that conservative principles and policies need not be grounded in a specific set of supernatural claims. Rather, conservatism serves the ends of “Human Flourishing,” what the Greeks termed Eudaimonia. Secular conservatism takes the empirical world for what it is, and accepts that the making of it the best that it can be is only possible through our faculties of reason.

Recent writings by Heather Mac Donald and David Frum come in for attention. Amusingly, I’m the only one so far posting under his or her real name, although the identities of some of the others are not all that hard to guess under pseudonyms such as “Bradlaugh” and “David Hume”. It should also be apparent that there is a wide range of views represented, including some that are at quite a distance from my own, but that should help keep things interesting. The site has already drawn notice from Ann Althouse (and more), “Tapped”, Eve Tushnet, John Derbyshire/NRO “Corner”, and Gene Expression, among others.

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Microblog 2008-11-10

by Walter Olson on November 10, 2008

  • Mark Lilla: pick either faux populism or intellectual conservatism, you can’t have both [WSJ] #
  • P.J. O’Rourke on where conservatives went wrong [Weekly Standard] #
  • And how exactly did those mountain goats get up there without wings? [Flickr "Roger 80" h/t @coolpics] #
  • Scotland authorities trawl social networking sites, then slap teen with £200 fine for posing with sword on Bebo [Massie] #
  • “Victims’ rights” sound like lovely idea but can undermine fairness and practicality of criminal justice system [Greenfield] #
  • Bizarre Czech case: driver hits, then tries to murder pedestrian, victim survives only to be sued by car’s owner [Feral Child] #
  • Auto bailout would leave Big 3 in interest-group coils, bankruptcy could cut the knots [Bainbridge h/t @erwiest] #
  • ACORN as the gang that couldn’t intimidate straight [PoL] #
  • “Talked about in CivPro” I hope favorably [@sqfreak] #
  • More public stirrings against traffic cameras [Jeff Nolan] #

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