Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘sexual orientation’

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.”)

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Dividing the cake: high court briefs show First Amendment split

Eugene Volokh and the Cato Institute amicus program hardly ever take opposite sides of a First Amendment case, but it’s happening in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. At issue is whether the concept of expression extends to cake decoration, and if so how far. (Only cakes bearing custom/unique messages or symbols?) It’s not an easy line to draw. [Adam Liptak, New York Times; Eugene Volokh/Dale Carpenter brief for American Unity Fund; Cato brief]

SCOTUSBlog has a symposium on Masterpiece Cakeshop. The exact couching of the facts — was Phillips being asked to create a cake or design one? — could be important to the outcome [Ronald K.L. Collins] There is a Cake Artists brief. [Althouse]

While on another note, “Christian Cake Bakers and Gay Coffee Shop Owners: Why Freedom of Association Is for Everybody” [Jonathan Rauch, National Affairs; Scott Shackford, Reason] Earlier here, here, etc.

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September 13 roundup

  • Scranton, Pa. federal judge “denies ‘exorbitant’ request for nearly $1M in attorney fees after $125K recovery” [ABA Journal; arose from bad faith insurance action on underlying uninsured motorist claim that settled for $25,000]
  • As PETA settles monkey selfie case with hapless photographer, details confirm that “Naruto is really just a prop to be deployed in the case as PETA sees fit.” [Ted Folkman, Eriq Gardner, earlier] A sad catalogue of litigation abuse enabled by PETA’s donors [Frank Bednarz thread]
  • Lively First Circuit opinion upholds extortion conviction of small town police chief [Bob Dunn, Berkshire Eagle, U.S. v. Buffis via IJ’s John Ross, “Short Circuit“; Lee, Mass.]
  • She beat DOMA and the IRS too, and all in great style. My appreciation of Edith Windsor [Cato at Liberty]
  • “North Carolina’s Fickle Finger of Redistricting” [also by me at Cato at Liberty]
  • Me: “Posner was the judge lawyers really didn’t want to run into if they had bad class action settlements to defend” [Jonathan Bilyk, Cook County Record, earlier]

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Labor and employment roundup

  • Welcome news: Labor Secretary Alex Acosta urges states to fix occupational licensing [Eric Boehm, Reason] Fresh thinking on the antitrust angle in a bill from Sen. Mike Lee (R-Utah) [Ilya Shapiro, Cato] “Occupational licensing should not be used to keep honest Americans out of work” [Clark Neily, The Hill] Video of Heritage panel on the subject with Maureen Ohlhausen of the FTC, Alex Tabarrok, Paul Larkin, and Dexter Price [Marginal Revolution]
  • “The Massachusetts Supreme Judicial Court has allowed an employee to pursue a disability discrimination claim based on the use of medical marijuana.” [Jon Hyman]
  • That’s how we’ll solve difficult issues of statutory interpretation. We’ll call names [Richard Thompson Ford, Take Care, on expansion of Title VII interpretation to sexual orientation, earlier here, here, etc.] More: Scott Greenfield;
  • If not for wise lawmakers like those in California, who would look out for our privacy? [Steven Greenhut on proposal to give unions private workers’ phone numbers and addresses]
  • D.C. politicians are one big reason residents east of Anacostia River have poor grocery options [Diana Furchtgott-Roth; minimum wage]
  • Uniform, predictable test needed for who is an “employee” and “employer” [Glenn Lammi, WLF, first and second posts]

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Supreme Court will hear cakeshop case

By agreeing to hear the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court has set up a potentially major decision on “whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment. My link-rich Cato post also goes on to discuss the sleeper case of Pavan v. Smith, which offers a glimpse of how a post-Scalia conservative wing may address issues following in the wake of Obergefell.

P.S. More from Erica Goldberg on the hubbub over Gorsuch’s dissent in Pavan.

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Labor and employment roundup

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On religious liberty, a less than overwhelming executive order

I’ve got an op-ed at the New York Daily News about President Trump’s executive order taking a few generally small and measured steps toward accommodation of and favorable legal treatment toward religious belief. Excerpt:

On Wednesday, social media was filled with outcry about the sweeping, “Handmaid’s Tale”-like provisions of the executive order on religious liberty President Trump was preparing to sign Thursday….

What the White House unveiled Wednesday night was far more modest. In fact, it dropped about 96% of the controversial stuff that had circulated in the January draft, including many provisions that in my view were misconceived …

There is also [in the tax section of the order] a cryptic reference to having agencies defer more broadly to speech rights beyond the context of the IRS and campaigns, which lawyers are likely to look at closely in coming days just in case it proves to be something big….

Significantly, according to advance reports, a White House official indicates that there are no plans for any additional executive order on LGBT discrimination issues.

Organized gay groups, committed to keeping their base in a constant state of alarm, will be reluctant to admit that this is a big win for their cause.

More: Ilya Shapiro at Cato, Ed Morrissey, and my post on the earlier draft.

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February 15 roundup

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Labor and the federal courts roundup

  • “Labor law in America has reached the absurd point where the NLRB is taking the position that a company can’t tell its employees to have a positive attitude” [Ira Stoll on Trader Joe’s controversy, following on T-Mobile case last April, earlier on predecessor 2014 decision in Hills and Dales General Hospital]
  • Judge Janice Rogers Brown, writing for D.C. Circuit, rips NLRB for “abusive tactics and extremism.” orders it to pay employer’s attorney fees [Jon Hyman, David Leishman and Seth Borden, McGuire Woods Labor Relations Today (citing Board’s “nonacquiescence” policy), opinion in Heartland Plymouth Court MI, LLC v. NLRB]
  • Quoting John Ross’s Short Circuit: Illinois telephone company “may not have violated the rights of striking worker (who allegedly followed a non-striker onto the highway, cut him off, slowed down, and did not allow him to pass) by firing her, says the D.C. Circuit. Concurring in her own opinion, Judge Millett reprimands the NLRB for long countenancing strikers’ sexually and racially demeaning behavior.” More on Millett’s concurrence in Consolidated Communications v. NLRB: Jon Hyman, and more on the case itself from the U.S. Chamber;
  • Also quoting Short Circuit: “After discussions with NLRB, Norwood, Mass. car dealership revises employee handbook. NLRB: The new dress code, which prohibits some employees from wearing ‘pins, insignias, or other message clothing,’ still restricts labor rights. First Circuit: Just so. Dissent: Pity employers who want their employees to look nice. “[T]he Board and the courts have lured businesses into a legal bog.'”
  • Congress hasn’t passed ENDA. Will courts approve EEOC’s scheme of cobbling it together virtually from other legal materials? [ABA Journal, Will Baude and more, Eugene Volokh on Seventh Circuit argument]
  • California agricultural-labor law creates a right to trespass for union organizers. Help, Ninth Circuit! [Ilya Shapiro and Frank Garrison]

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Don’t expect Trump to roll back gay rights

Of reasons to worry about the Donald Trump administration, so far as I can see, anti-gay policies aren’t in the top 25. Or so I argue in an opinion piece in today’s New York Post. It was written before, but includes an updating reference to, the airing of a “60 Minutes” interview last night in which Trump said, of the Supreme Court’s marriage cases, “They’ve been settled, and I’m fine with that.”

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