Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘discrimination law’

Oregon appeals court upholds $135,000 cake fine

An Oregon appeals court has upheld the oppressive $135,000 fine levied on bakers Melissa and Aaron Klein, who turned away a gay couple’s wedding cake order [Whitney Woodworth, Salem Statesman-Journal] As I observed two years back, the use of ruinous fines to punish non-ruinous conduct is a wider problem in our law, not just here. The Oregon court did reverse one state finding related to the Kleins’ supposed announcement of a future intent to discriminate, to which I and others had taken particular exception.

As my colleague Roger Pilon put it about the Colorado case, “If there is intolerance here, it is from those who would force a man to choose between his religious beliefs and his livelihood.”

P.S. Eugene Volokh on the court’s main ruling and on the “threat to discriminate” sub-issue.

Filed under: , ,

December 13 roundup

  • Cakes and coercion: “Endorse the state’s right to coerce speech or conscience and you have ceded a principle that can so easily come back to haunt you.” [Andrew Sullivan, New York mag] “The legal course has some advantages. You can use state power, ultimately the barrel of a gun, to compel people to do what you think is right.” [David Brooks] Yes, courts have often found a constitutional right to discriminate, so scratch that Masterpiece Cakeshop talking point [Eugene Volokh]
  • Fugitive Kentucky lawyer and disability-fraud king Eric Conn arrested in Honduras [Bill Chappell/NPR, earlier here and here]
  • As White House belatedly consults, heeds seasoned counsel, lawsuits against travel ban begin running out of steam [Ilya Shapiro, The Hill]
  • Cheers for restoring schools’ discretion to serve 1 percent chocolate milk, USDA, and next bring back whole milk [Stephanie Ebbs and Erin Dooley/ABC News, earlier]
  • Court hears oral argument on sports betting and state commandeering case Christie v. NCAA [Ilya Shapiro/Cato, Jacob Sullum, earlier]
  • At recent federal court showdown with Waymo, things went from bad to worse for Uber’s lawyers [Cyrus Farivar, ArsTechnica]

Filed under: , , ,

High Court debates wedding cakes and forced expression

“On the Left, some pine for a hard-line opinion that claims of religious liberty or free speech can never, ever provide an excuse for discrimination. But it’s not just the Alitos and Clarence Thomases who would oppose that outcome. All four liberal justices yesterday gave indications that even if they would not draw the line on compelled speech *here*, they would draw it *somewhere*.” My take on yesterday’s oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission is up at the New York Daily News.

The principles of free contract and association and the wrongness of compelled expression and participation will endure whether or not SCOTUS sees its way clear to recognizing them in this case. Earlier; Roger Pilon (“If there is intolerance here, it is from those who would force a man to choose between his religious beliefs and his livelihood”); Ilya Shapiro; Cato’s brief; Erica Goldberg. And I’m quoted in Brandon Ambrosino’s Washington Post coverage of the case (“the lasting influence is not primarily which side wins, but where to draw the line between what is and is not expression”) and by Chris Johnson in the Washington Blade (““Neither side [on the Court] wants to inflict a culture war on the country; they’re trying to work out something without culture war.”)

Filed under: , , ,

Employment discrimination roundup

Filed under: , ,

Saying it with frosting at SCOTUS

My Cato Institute colleagues (Sept. 6) and the U.S. Department of Justice (Sept. 7) have both weighed in with amicus briefs in the Supreme Court’s fall-term case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, supporting the principle that the First Amendment does not permit Colorado public accommodations law to force independent baker Jack Phillips to create a cake intended for a same-sex wedding in which he does not wish to participate.

Cato’s brief emphasizes the expressive significance of custom cake baking, which involves the creation of a unique work of art with symbolic and emotional elements (more from Ilya Shapiro and David McDonald).

The Department of Justice brief advances a similar argument and also argues that creative expression aside, the law must not force “participation in an expressive event” under First Amendment precedents such as Barnette v. West Virginia Board of Education (public school students may not be compelled to take part in Pledge of Allegiance, flag salutes, or similar ceremonies), absent a more compelling state interest than Colorado has shown here.

Both briefs distinguish custom cake making from other wedding services. Cato notes that some services (wedding photography, custom floral design) share elements of creative expression with custom cake baking, while many other services do not. DoJ says there is no First Amendment problem applying public accommodation law to hall or limo rental or to the sale of off-the-shelf cakes. Where a product is not custom made for a particular client or event, the law is dealing with a sale of goods, not conscripting an expressive service.

Neither Cato’s nor DoJ’s brief is grounded in a free exercise of religion argument, but would apply to refusals to deal whether grounded in religious belief or not. Earlier here and here. More: Erica Goldberg.

Filed under: , ,

August 23 roundup

Filed under: , , , , , ,

July 12 roundup

  • Mother who gives 10 year old the run of a Lego store: Mom of the Year, or candidate for arrest? [Lenore Skenazy on Ontario County, N.Y. incident]
  • Sorry to see WSJ Law Blog close. A wealth of valuable content, often first on stories, showcase for rising writers [farewell post]
  • Oops! “The bill as [passed] …allows a pregnant woman to commit homicide without consequences.” [Lowering the Bar on New Hampshire measure]
  • No, a court really didn’t overturn Florida stand-your-ground law. Let Eugene Volokh explain [Volokh Conspiracy] Still, the recently enacted procedural fillip the court did strike down was one of practical significance to many defendants [C.J. Ciaramella, Reason]
  • In the mail: John Corvino et al., Debating Religious Liberty and Discrimination. Good opening essay [Oxford University Press]
  • What one bad lawyer can do: feds chase $600 million in disability claims linked to fugitive Eric Conn [Chris Edwards, Cato]

Filed under: , , , , , ,

Pronoun prescription in Canada

“Few Canadians realize how seriously these statutes infringe upon freedom of speech. The Ontario Human Rights Commission has stated, in the context of equivalent provisions in the Ontario Human Rights Code, that ‘refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity … will likely be discrimination when it takes place in a social area covered by the Code, including employment, housing and services like education.'” [Bruce Pardy, National Post] We noted the New York City Human Rights Commission’s similar guidance last year.

Filed under: , , , ,

Discrimination law roundup

  • Go figure: Trump executive order says “Hire American” even as federal law bans job discrimination in favor of American citizens [Jon Hyman]
  • Though ADA excludes “gender identity” claims, judge green-lights suit over gender dysphoria [P.J. D’Annunzio, Law.com]
  • “UC Berkeley Drops Free Online Videos In Response To Government Threat” [Jane Shaw/Heartland, and thanks for quote]
  • “Hostile work environment can be created with one racial slur, 2nd Circuit rules” [ABA Journal]
  • Connecticut’s CHRO attracts much higher per capita filings of workplace discrimination than comparable agency in Massachusetts, with complaints from incumbent employees a key growth area [Marc E. Fitch, Yankee Institute; Daniel Schwartz with somewhat different view]
  • Missed, from December: Philadelphia could close businesses deemed to discriminate [Tricia Nadolny, Philadelphia Daily News, related earlier]

Filed under: , , , , ,

Court: Kentucky print shop doesn’t have to print t-shirt it disagrees with

Freedom should mean freedom for everyone, so stop trying to use laws to force people to utter and print words in which they disbelieve:

A Kentucky appellate court on Friday ruled that the Christian owner of a printing shop in Lexington had the right to refuse to make T-shirts promoting a local gay pride festival.

[Jacob Gershman, Wall Street Journal] As Eugene Volokh notes, the “three-judge panel ruled, on a 2-1 vote, that Adamson’s actions didn’t violate the ordinance (and thus avoided having to decide whether he had a First Amendment right, under the ‘compelled speech’ doctrine, not to be forced to print messages of which he disapproved).” The majority opinion found that the ordinance did not prohibit discrimination based on “message or viewpoint”; a concurring judge also cited Kentucky’s version of RFRA, reasoning that the law as interpreted burdened the owners’ religious practice and the state had not shown it minimized burdens in the course of serving a compelling purpose.

Opinion here and earlier on the case here, here, and here. And I’m happy to report that Cato, along with UCLA law professor and First Amendment specialist Volokh, filed an amicus brief in support of this outcome (though urging it on direct First Amendment grounds). More: John Corvino at Slate, who disagrees with me on the wedding cases, but agrees that this is one of forced expression.

And much more: I’ve now written a longer piece on the case for Cato at Liberty.

Filed under: , ,